New Hampshire Mechanics Lien Frequently Asked Questions
Please see below for information related to New Hampshire mechanics liens and construction notices. You can use Levelset‘s platform to exchange construction documents such as preliminary notices or lien waivers. New Hampshire is an Unpaid Balance state. To learn more about New Hampshire’s mechanics lien law, read the frequently asked questions below.
[zlien id=”26741″]
[divider_flat]
[zlien id=”26739″]
[hr]
Frequently Asked Questions
[toc=”2,3,4″ title=”Table of contents”]
New Hampshire Mechanics Lien FAQ
Who Can File a New Hampshire Mechanics Lien?
In New Hampshire, general contractors, subcontractors, laborers, and material/equipment suppliers, are entitled to lien rights. Although there has not been case law on the issue, it seems likely that professional designers, engineers, and surveyors would also be entitled to mechanics lien protection. Sub-sub-subcontractors (likely) and suppliers to suppliers (definitely) do not have lien rights in New Hampshire. Equipment lessors are not specifically mentioned by New Hampshire statute, but it is likely that an equipment lessor would qualify for lien protection if he is within two tiers of the prime contractor.
[hr]
When is the Deadline to File a New Hampshire Mechanics Lien?
In New Hampshire, a mechanics lien must be recorded within 120 calendar days from the date of last furnishing labor or materials for the project.
[hr]
Do I Need to Send Notice the Lien Was Recorded?
Yes. In New Hampshire, the lien is not recorded prior to the legal action to enforce it – the court steps in at the beginning of the process. In order to have a mechanics lien in New Hampshire, the lien claimant must file an Ex Parte Petition to Secure Mechanics Lien with the court. This may be done without notice of this action to the owner or other parties (Notice of Attempt to Lien must be given previously if lien claimant is not the general contractor). After the court grants the petition, the lien may be recorded, and a petition, order, and writ of attachment may be filed. Once the order has been signed by the court, and the lien has been recorded, the owner must be served personally by a process server.
[hr]
Can I include Attorney’s Fees, Collection Costs, or Other Amounts in the Lien Total?
It depends. Generally the lien amount is the unpaid contract amount, however, New Hampshire law is unsettled as to whether any or all of the following damages may be included: profit and overhead (if included in contract amount), interest, finance charges, attorney’s fees, court costs, breach of contract (consequential) damages.
[hr]
When is the Deadline to Enforce a New Hampshire Mechanic’s Lien, or, How Long is My Lien Effective?
In New Hampshire the action is initiated prior to the recording of the lien. The lien must be recorded within 120 days from the last date of furnishing labor or materials to the project, so the action should be initiated well before that date to ensure the court has a chance to see it prior to the recording deadline.
[hr]
Will My New Hampshire Lien Have Priority Over Pre-Existing Mortgages or Construction Loans?
Generally yes. Mechanics liens in New Hampshire have priority over all pre-recorded liens or other encumbrances other than a conventional mortgage or a tax lien. With regard to conventional mortgages, the “first in time” rule applies, that is if the mortgage was recorded prior to the furnishing of labor or materials to the project it has priority over the subsequent mechanic’s lien. Also, with respect to construction mortgages, the mechanics lien will take precedence except to the extent that 1) the proceeds were disbursed to subcontractors or suppliers, or 2) there is an affidavit from the borrower a disbursement from the lender is for completed work, and all subcontractors and suppliers have been paid for their share of such work, or will be paid out of such disbursement.
[hr]
Must the New Hampshire Lien Include a Legal Property Description?
No. New Hampshire requires that the ex parte petition include a “reasonably accurate description of the land improved.”
[hr]
Must the New Hampshire Lien be Notarized?
No. The documents must be filed in court and signed by the claimant or the claimant’s attorney.
[hr]
Can I File a New Hampshire Lien if I’m Unlicensed?
New Hampshire does not impose any licensing requirements on the ability to claim a mechanic’s lien. However, it is never advisable to perform work unlicensed if a license is required.
[hr]
Can I File a New Hampshire Lien on a Condominium Project?
Yes mechanics lien may be filed against a project involving a condominium, provided the lien claimant would otherwise have valid mechanic lien rights.
[hr]
Who Cancels the New Hampshire Lien if/when I get Paid?
In New Hampshire, if a mechanics lien is satisfied, the lien claimant will withdraw his court action.
[hr]
What Are the Lien Waiver Rules?
New Hampshire does not have statutory lien waiver forms, and therefore, you can use any lien waiver forms. Since lien waivers are unregulated, be careful when reviewing and signing lien waivers. See this article: Should You Sign That Lien Waiver?. New Hampshire state law is unclear or silent about whether contractors and suppliers can waive their lien rights before any work on the project begins. Accordingly, you want to proceed with caution on this subject. You can learn more about such “no lien clauses” at this article: Where Can You Waive Your Lien Rights Before Payment?
[zlien id=”26739″]
[hr]
New Hampshire Preliminary Notice FAQs
Do I Need to Send a New Hampshire Preliminary Notice?
New Hampshire requires a preliminary notice to be sent by all parties who do not have a direct contract with the property owner.
[hr]
When do I Need to Send a New Hampshire Preliminary Notice?
New Hampshire mechanics lien statutes require that a preliminary notice (notice of intent to lien) be given prior to the delivery of labor and/or materials to the project. Also, a written account of the labor and/or materials furnished in the preceding 30 days is required to be given every 30 days after the original preliminary notice is given. However, practically speaking, the time period in which the preliminary notice may be given is probably longer. A preliminary notice may be given at any time prior to the lien claim itself, but the lien will only be effective against the amounts owed by the property owner to the general contractor at the time the preliminary notice is served on the owner – therefore, the sooner the preliminary notice is served the more likely the lien will be effective. Also, there has been some disagreement in the courts as to the specific timing and necessity of the written statements of account to be given after the preliminary notice.
[hr]
What if I Send the New Hampshire Preliminary Notice Late?
If the preliminary notice is not given prior to furnishing labor and/or materials, it can be given later, as long as it is given prior to the lien itself. However, a lien is only effective against the amounts owed by the property owner to the general contractor at the time the preliminary notice is served on the owner, so potentially a lien may be rendered ineffective if the preliminary notice is sent late. Failure to give the statement of account required to be given subsequently to or concurrently with the preliminary notice is complicated. Courts disagree, but it may render part of the lien claim (corresponding to the missed statement) invalid; there is confusion here, however.
[hr]
How Should the New Hampshire Preliminary Notice be Sent?
New Hampshire statutes do not state how the service of the preliminary notice on the owner should be accomplished, merely that a notice should be “furnished” to the property owner. Sending the notice by certified mail, return receipt requested may be advisable.
[hr]
Do I Have to Send the New Hampshire Preliminary Notice to Someone Other than the Owner?
The notice should also be delivered to the mortgagee of a construction mortgage.
[hr]
Is the New Hampshire Preliminary Notice Requirement met when sent or delivered?
Because the statutes do not state how service is to be accomplished, this is left unanswered. To be safe, considered the notice delivered when received or refused if sent by certified mail.
[zlien id=”26739″]
Leave a Reply