New Mexico lien waiver: the ban was written, and it never made it into law
Search for New Mexico lien waiver law and you will be handed a sentence saying a contract containing a waiver of the right to file or enforce a lien is void as against public policy and unenforceable. That sentence is real, it was written by the New Mexico legislature, and it is not the law. It sat in Senate Bill 574 of 2007 when the bill was introduced, and it was taken out before the bill was enacted. What went into the statute in its place says something much narrower.
No New Mexico statute voids a lien waiver signed before payment, and none prescribes what one has to say. NMSA 1978 section 48-2-10 says a contingent payment clause in a contract is not to be construed as a waiver of the right to file and enforce a mechanic's or materialman's lien. That is a rule about a pay when paid clause in the underlying contract. It is not a rule about the release you sign at a draw meeting.
Read the law: NMSA 1978 section 48-2-10codes.findlaw.com
NMSA 1978 section 48-2-10, the enacted textFill it in online Type your details in and download it already filled in.No lien provided for in Sections 48-2-1 through 48-2-17 NMSA 1978 remains valid for a longer period than two years after the claim of lien has been filed unless proceedings have been commenced in a court of competent jurisdiction or in binding arbitration within that time to enforce the lien. A contingent payment clause in a contract shall not be construed as a waiver of the right to file and enforce a mechanic's or materialman's lien pursuant to Sections 48-2-1 through 48-2-17 NMSA 1978.
Two sentences, a limitation period and a contingent payment rule. The second sentence is the one people mistake for an anti waiver statute, and it is not one. It stops a pay when paid clause from being read as a waiver. It says nothing at all about a document headed waiver and release.
Download a blank New Mexico lien waiver
New Mexico prescribes no statutory waiver wording, so this is the general conditional waiver on progress payment, the form that fits most draws. Fill in the amount and the through date rather than leaving them blank, because no New Mexico section limits a waiver that does not limit itself. Print it and fill it in by hand, or use the builder below and get it back already filled in.
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The sentence everyone quotes, and where it actually comes from
Senate Bill 574 of the 2007 regular session was a rewrite of the mechanics and materialmen lien article. As introduced it amended six sections, and its Section 4 amended 48-2-10 to read, after the two year limitation sentence: notwithstanding any other provision of law, a contract, agreement or understanding that contains a waiver of the right to file or enforce a lien created pursuant to Sections 48-2-1 through 48-2-17 NMSA 1978 is void as against public policy and unenforceable.
That is a clean, broad anti waiver rule, the kind twenty odd states do have. It did not survive. Compare the title of the bill as introduced with the title of the act as enacted and you can watch it go. The introduced version was captioned as clarifying lien rights in other than fee interests, exempting original contractors from pre lien notice requirements, and the rest. The enacted version drops that first clause and adds a new one: addressing contingent payment clauses.
So the legislature looked at a sentence voiding lien waivers, took it out, and put the contingent payment sentence in its place. Read the current 48-2-10 on any statute service and that is exactly what you find. Read the whole of Chapter 48 Article 2 and Article 2A and the phrase void as against public policy does not appear anywhere in either one.
What a contingent payment clause is, and why it is a different problem
A contingent payment clause is the pay when paid or pay if paid language in a subcontract, the clause saying the general owes you nothing until the owner pays him. Before 2007 a general could argue that a sub who agreed to be paid only out of owner money had, in substance, agreed to look only to that money and given up his separate claim against the property. The 2007 sentence closes that argument off. The clause governs when you get paid under the contract. It does not touch your right to file and enforce the lien.
Notice what that leaves untouched. It is a rule of construction aimed at one clause in the underlying contract. It does not say a waiver is void, it does not say a waiver has to be conditional, it does not require a waiver to be given in exchange for payment, and it does not prescribe wording. New Mexico never enacted any of that.
The practical result is that a New Mexico lien waiver is judged as a contract. If the document says the signer unconditionally waives and releases all lien rights through a date, it does that on signature, and the fact that the check later bounced is a separate lawsuit for breach rather than a defense to the release. No section of Article 2 rescues that signature.
The two clocks that decide a New Mexico job
The first one is the pre lien notice under 48-2-2.1. For a lien claimed in an amount over five thousand dollars, written notice of the right to claim a lien in the event of nonpayment has to go out not more than sixty days after you first furnished work or materials, by certified mail with return receipt requested, facsimile with acknowledgement, or personal delivery, to the owner or reputed owner or to the original contractor. Subsection A carves out three groups who do not have to send it: claims on residential property containing four or fewer dwelling units, claims by an original contractor, and claims by anybody who contracted directly with the original contractor.
Miss it and you are not finished, but you are smaller. Subsection E lets a claimant who skipped the sixty days give the notice later, and the lien then applies only to work performed or materials furnished on or after the date thirty days before the notice went out. Everything earlier is gone.
The second clock is 48-2-6. An original contractor files the claim of lien within one hundred twenty days after completion of the contract, and everybody else within ninety days after completion of the building, improvement or structure. Within fifteen days of filing, a copy of the filed claim goes to the owner or reputed owner, by mail, email, certified mail with return receipt requested, or hand delivery, at the last known address or the address in the county assessor's files. Failing to serve that copy may cost you interest, attorney fees and costs. Then 48-2-10 gives you two years from filing to commence proceedings in court or in binding arbitration, and the lien dies at the end of them.
What to do about it on a New Mexico job
Do not rely on the sentence you found in a search. It was drafted, it reads like law, and it is quoted all over the internet, but the New Mexico legislature removed it in 2007. If a broad anti waiver rule is the reason you were willing to sign something unconditional, that reason does not exist here.
Sign conditional, never unconditional, until the money has cleared your bank. Where no statute voids a bad waiver the form is the entire protection, and a conditional waiver that takes effect when the payment clears is a different document from one that takes effect on signature. Put the amount and the through date on it, because nothing in Article 2 will limit a waiver that does not limit itself.
Then hold the dates, because they are the part New Mexico does enforce. Sixty days for the pre lien notice unless one of the three carve outs covers you, one hundred twenty days to file as an original contractor or ninety days otherwise, fifteen days to serve the filed claim on the owner, and two years to start the action or the arbitration. A waiver protects nothing you have already released. It does not file anything and it does not stop any of those counts.
Which of the four to sign on a New Mexico job
New Mexico has no anti waiver statute, so the wording of the form is the whole of the protection. A conditional waiver ties the release to the payment clearing. An unconditional one releases on signature, paid or not, and no section of Article 2 will read a condition back into it.
Questions people ask
Is a New Mexico lien waiver signed before payment valid?
Yes, as far as the New Mexico statutes are concerned. Chapter 48 Article 2 contains no section voiding a waiver of lien rights signed in advance of payment, no prescribed wording and no timing rule. A New Mexico lien waiver is an ordinary contract, which means an unconditional one takes effect on signature whether or not the check ever clears.
Does New Mexico law say a lien waiver is void as against public policy?
No, although a sentence saying exactly that does exist. It was in Senate Bill 574 of the 2007 regular session as introduced, amending 48-2-10, and it was removed before the bill was enacted. The enacted 48-2-10 carries the contingent payment sentence instead. Quoting the bill draft as if it were the statute is the single most common error about New Mexico lien waivers.
What does the contingent payment clause rule in 48-2-10 actually do?
It stops a pay when paid or pay if paid clause in a contract from being read as a waiver of the right to file and enforce a mechanic's or materialman's lien. It is a rule of construction about one clause in the underlying contract, so it decides nothing about a separate waiver and release document you sign at a draw.
When do I have to send a New Mexico pre lien notice?
Within sixty days of first furnishing work or materials, if the lien will be for more than five thousand dollars, under 48-2-2.1. It does not apply to residential property with four or fewer dwelling units, to an original contractor, or to anyone who contracted directly with the original contractor. Send it late and the lien reaches only work or materials furnished on or after thirty days before the notice went out.
Working in another state? The general lien waiver forms page covers all four waiver types, and conditional vs unconditional lien waiver explains which of the two to sign and when.
This page quotes NMSA 1978 section 48-2-10 and explains what it says. It is not legal advice, and a statute can be amended. Read the linked section before you rely on it.