This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 TAL REALTY, INC., 2 Petitioner-Appellee, 3

v. No. 33,440 4 SAN ANGELO PROPERTY SERVICES, 5 Respondent-Appellant, 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 William C. Birdsall, District Judge 8 Marrs Law, Ltd. 9 Clinton W. Marrs 10 Albuquerque, NM 11 for Appellee 12 Gary W. Boyle 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 ZAMORA, Judge. 17
{1} Appellant San Angelo Pr operty Services (San Angelo) appeals from the district 18 court’s order granting summary judgment infavor of TAL Realty, Inc. (TAL Realty) 19 cancelling San Angelo’s claim of lien and ordering the return of TAL Realty’s 202 substitute cash collateral. San Angelo argue s that its materialmen’s lien, based on 1 improvements made to property purchased at a foreclosure sale, is not subordinate to 2 TAL Realty’s right to redeem the property. San Angelo also argues that it is entitled 3 to judgment based on unjust enrichment against TAL Realty. We hold that San 4 Angelo is not entitled to reimbursement for improvements it made to the property 5 prior to the expiration of the redemption period and affirm the district court’s order. 6 BACKGROUND 7
{2} On January 27, 2012, the district c ourt entered a judgment and decree of 8 foreclosure against Richard McDaniel and infavor of CitiMortgage, Inc., pertaining 9 to property in Farmington, New Mexico. The judgment foreclosed McDaniel’s rights 10 in the property, except for McDaniel’s ri ght, by law and by the mortgage, to redeem 11 the property. The judgement also appointed a special master to sell the property at a 12 foreclosure sale. On March 6, 2012, Al pha Beta Properties, LLC (Alpha Beta) 13 purchased the property at the foreclosure sale and immediately contracted with San 14 Angelo to make improvements to the prope rty. San Angelo delivered materials and 15 worked on the property from March 6, 2012, to March 21, 2012. 16
{3} On March 20, the right of redemp tion was assigned to TAL Realty. The 17 foreclosure sale was confirmed by the district court on April 2, 2012. A stipulated 18 order granting TAL Realty’s petition for redemption was entered on May 24, 2012. 193 The stipulated order was approved by Stephen Harward as Alpha Beta’s authorized 1 manager. On June 18, 2012, San Angelo filed a materialme n’s lien for its work on the 2 property claiming that it had not been paid for the improvements it made to the 3 property. This lien was verified by Stephen Harward, as Manager of San Angelo 4 property services. TAL Realty filed a petiti on for cancellation of San Angelo’s lien 5 and San Angelo counterclaimed for foreclosure of the claim of lie n. The parties filed 6 cross-motions for summary judgment. The di strict court granted TAL Realty’s motion 7 for summary judgment cancelling San Angelo’s claim of lien, th ereby rendering San 8 Angelo’s motion for summary judgment moot. 9 DISCUSSION 10
{4} On appeal, San Angelo argues that under NMSA 1978, § 48-2-5(A) (1991) it 11 is entitled to reimbursement for its work on the property, which commenced prior to 12 the petition for the certificate of redempti on. San Angelo further argues that it is 13 entitled to restitution for the improvements based on a theory of unjust enrichment. 14 TAL Realty argues that its right of redemption is superior to the claim of lien, that San 15 Angelo had reason to know that the property was subject to the right of redemption 16 when its work on the property commenced, and that allowi ng San Angelo to recover 17 improvements made to the property beforethe expiration of the redemption period 184 would contravene the polic y of New Mexico’s Redemption Statute, NMSA 1978, § 1 39-5-18 (2007). 2 Standard of Review 3
{5} Whether San Angelo is en titled to reimbursement for improvements it made to 4 the property prior to the expiration of th e redemption period is a question of law, 5 which we review de novo. See Montgomery v. Lomos Altos, Inc. , 2007-NMSC-002, 6 ¶ 16, 141 N.M. 21, 150 P.3d 971 (“ An appeal from the grant of a motion for summary 7 judgment presents a question of law and is reviewed de novo.”). “Summary judgment 8 is appropriate where there ar e no genuine issues of materi al fact and the movant is 9 entitled to judgment as a matter of law.” Id. (internal quotation marks and citation 10 omitted). The issue of whether San Angelo’s materialmen’s lien is superior to TAL 11 Realty’s right to redemption, or alternatively, whether it is entitled to reimbursement 12 for the improvements is a matter of statutory interpretation. Such an interpretation 13 presents a question of law requiring a de novo review. State v. Smith , 2009-NMCA14 028, ¶ 8, 145 N.M. 757, 204 P.3d 1267. 15 San Angelo Is Not Entitled to Reimbur sement for Improvements Under Section 16 48-2-5 17
{6} Section 48-2-5(A) states, in pertinent part, that the materialmen’s liens are 18 preferred over “any lien, mo rtgage or other encumbrance which may have attached 19 subsequent to the time when the . . . impr ovement . . . was comme nced[;] also to any 205 lien, mortgage or other encumbrance of which the lienholder had no notice and which 1 was unrecorded at the time the . . . impr ovement . . . was commenced.” San Angelo 2 claims that Section 48-2-5(A) gives its lie n absolute statutory preference over TAL’s 3 right of redemption since improvements on the property commenced before the 4 certificate of redemption was filed. We di sagree. Our Supreme Court has explained 5 that Section 48-2-5, read together with related sections of the materialmen’s lien 6 statute indicates that “timing and actual or constructive notice—not a general public 7 policy favoring materialmen—are the princi pal considerations in determining [a 8 lien’s] priority.” Hasse Contracting Co. v. KBK Fin., Inc. , 1999-NMSC-023, ¶ 12, 127 9 N.M. 316, 980 P.2d 641. 10
{7} We find that to be true in the pres ent case. Under NMSA 1978, § 48-2-4 (1880) 11 of the materialmen’s lien statute, a materi almen’s lien will not attach to the property 12 unless the person or entity that is contracting to improve the property has a fee simple 13 estate in the property. Where a purported ow ner that does not have a fee simple estate 14 in the property at issue and has improveme nts made, the materialmen’s lien will only 15 attach to the interest the purported owner does have. See § 48-2-4 (“[I]f at the 16 commencement of the work, or of the furnishing the materials for the same, the land 17 belonged to the person who caused said bu ilding, improvement or structure to be 186 constructed, altered or repaired, but if such person ow ned less than a fee simple estate 1 in such land, then only his interest therein is subject to such lien.”). 2
{8} In the context of a foreclosure sale, the purchaser does not obtain a fee simple 3 estate in the property upon its purchase. See First State Bank of Taos v. Wheatcroft , 4 1931-NMSC-047, ¶ 10, 36 N.M. 88, 8 P.2d 1061. The purchaser’s interest is subject 5 to the right of redemption, and as such, the purchaser’s title can be defeated by the 6 redeemer until the expiration of the redemption period. See Ulivarri v. Lovelace , 7 1934-NMSC-087, ¶ 5, 39 N.M. 36, 38 P.2d 1114 (stating that when a decree of 8 foreclosure is entered, “the mortgagor no longer has any title to the property. The sole 9 right remaining to the mortgagor is the ri ght to redeem, a right, which does not arise 10 out of the mortgage or the decree, but a right, which is extended to him by statute, 11 whereby he [or his assigns] may defeat th e title of the purchaser” (internal quotation 12 marks and citation omitted)). 13
{9} In the instant case, Alpha Beta purchased the property on March 6, 2012. The 14 same day Alpha Beta contracted with San Angelo and San A ngelo began improving 15 the property. Because Alpha Beta did not havea fee simple estate when it contracted 16 with San Angelo or when work on the property commenced, San Angelo’s lien only 17 attached to Alpha Beta’s interest, whic h was extinguished once the property was 18 redeemed. See First State Bank of Taos , 1931-NMSC-047, ¶ 15 (stating that “when 197 the assignee of the mortgagors redeems he takes the title of the purchaser at the 1 foreclosure sale and [ sic ] free of subsequent judgment liens”). Thus, under the 2 materialmen’s lien statute, we conclude San Angelo is not entitled to recover from 3 TAL for improvements to the property that were made while the property was subject 4 to the right of redemption. 5 San Angelo Is Not Entitled to Reim bursement Under the Theory of Unjust 6 Enrichment 7
{10} San Angelo also claims that TAL Realty has been unjustly enriched by the 8 uncompensated value, which the improveme nts added to the property. We are not 9 persuaded. To prevail on a claim of unjust enrichment , “one must show that: (1) 10 another has been knowingly benefitted at one ’s expense[, and] (2) in a manner such 11 that allowance of the other to re tain the benefit would be unjust.” Ontiveros Insulation 12 Co. v. Sanchez , 2000-NMCA-051, ¶ 11, 129 N.M. 200, 3 P.3d 695. The theory of 13 unjust enrichment provides relief where, “in the absence of privity, a party cannot 14 claim relief in contract and insteadmust seek refuge in equity.” Id. San Angelo 15 verified that it had entered into an oral c ontract with Alpha Beta to furnish the labor, 16 service, equipment, or materials to Alpha Beta as the owner or reputed owner of the 17 real property. Arguably, San Angelo has the avenue of seeking relief in contract 18 against Alpha Beta. 198 {11} As we discussed earlier, Section 48-2- 4 precludes San Angelo from attaching 1 its lien to the property where the purporte d owner requesting the improvements did 2 not have a fee simple estate in the property. San Angelo cannot re ly on this equitable 3 doctrine to recover the costs of improve ments on the equitable theory of unjust 4 enrichment where the result would contravene the materialmen’s lien statute. See 5 Coppler & Mannick, P.C. v. Wakeland , 2005-NMSC-022, ¶ 8, 138 N.M. 108, 117 6 P.3d 914 (“It is a basic maxim that equity is ancillary, not antagonistic, to the law. 7 Equitable relief is not available when th e grant thereof would violate the express 8 provision of a statute.” (internal quot ation marks and citation omitted)). 9
{12} In its motion for summary judgment and on appeal, TAL Realty relies on Chase 10 Manhattan Bank v. Candelaria , 2004-NMSC-017, 135 N.M. 527, 90 P.3d 985, for the 11 proposition that requiring a redeemer to pay for the improvements made by the 12 purchaser is contrary to the redemp tion statute and the policy underlying the 13 redemption statute, where the improver had reason to know that the property was 14 subject to the right of redemption whenimprovements had commenced. San Angelo 15 argues that Chase is inapplicable because improve ments here were made by a third 16 party, not a purchaser. We note that our re sult in this case is consistent with our 17 Supreme Court’s interpretation of the redemption statue as articulated in Chase

. See 18 id. ¶¶ 8-9 (stating that based on the plain language of the redemption statute “the only 199 funds that a purchaser may recover under th e redemption statute are those funds that 1 the purchaser paid to acquire the property” and further reasoni ng that requiring the 2 redeemer to pay for improvements made by the purchaser would contravene the public 3 policy and defeat the purpose underlying th e redemption statute giving the property 4 owner, or his assigns, a reasonable opportunity to redeem the property, noting in 5 particular that “[p]urchasers could make it more burdensome for redeemers to redeem 6 their property by investing significant amount s of money into improvements, almost 7 ensuring that the redeemer would be unabl e to redeem their property,” essentially 8 inhibiting, if not extinguishing a redeemer’s right to redemption). Because San 9 Angelo’s unjust enrichment claim directlycircumvents Section 48-2-4, we need not 10 further apply Chase to these facts. 11 CONCLUSION 12
{13} For the foregoing reasons, we affirm the district court’s order granting summary 13 judgment in favor of TAL Realty, Inc. 14
{14} IT IS SO ORDERED. 15

16 M. MONICA ZAMORA, Judge 17 WE CONCUR: 1810 1 RODERICK T. KENNEDY, Judge 2

3 J. MILES HANISEE, Judge 4