Mechanics Liens Deadlines
Best Practice: Notice of lien rights served on owner prior to providing labor or materials.
Delivery of written account of labor and/or material furnished every 30 days (for the previous 30 days).
Lien must be filed within 120 days of last providing labor or materials. However, in New Hampshire, the lien is not recorded prior to the legal action to enforce it so a lien claimant must file an Ex Parte Petition to Secure Mechanics Lien with the court.
Best Practice: Notice of lien rights served on owner prior to providing labor or materials.
Delivery of written account of labor and/or material furnished every 30 days (for the previous 30 days).
Contractors & suppliers have strong lien rights in New Hampshire. If a contractor or supplier isn’t paid on an New Hampshire job, they can turn to filing a lien to speed up payment and protect themselves. However, there are specific requirements and rules that must be followed. Here are 5 essential things you need to know about New Hampshire’s mechanics lien law.
In New Hampshire, mechanics lien law states that general contractors, subcontractors, laborers, and material/equipment suppliers, are entitled to mechanics lien rights. In contrast, sub-sub-subcontractors (likely) and suppliers to suppliers (definitely) do not have rights.
Though not mentioned explicitly by statute, equipment lessors (within 2 tiers of the general contractor) probably have mechanics lien rights. Prior to January, the law was fuzzy on whether or not professional designers (architects and engineers) could file a New Hampshire mechanics lien, but after a recent amendment, it has been determined that they do have that right.
A mechanics lien in New Hampshire is not required to be notarized.
The deadline to file a mechanics lien in New Hampshire is 120 days from the date that a project participant last contributed labor or materials.
Preliminary notice is required for all project participants not in direct contact with the property owner. Though there is no mandatory deadline for sending preliminary notice, the earlier the better! Because the lien is only worth the amount the property owner owes the general contractor at the time preliminary notice is served sending the notice early is crucial. The Preliminary notice is not required to be sent by any particular method, but since proof of delivery should be obtained, sending via certified mail with return receipt requested may be advisable.
In most states, a mechanics lien consists of the unpaid contract amount. However, in New Hampshire, it’s unsettled as to whether mechanics liens may include profit and overhead (if included in contract amount), interest, finance charges, attorney’s fees, court costs, breach of contract (consequential) damages. The law here is unclear so it is not guaranteed.
New Hampshire mechanics liens generally have priority over pre-existing liens and other encumbrances. The two instances where mechanics liens may not take priority are a tax lien or a pre-recorded conventional mortgage.
Conventional mortgages take precedence when:
– The mortgage was recorded prior to the project participant providing labor or materials
– Proceeds were given to subcontractors and suppliers
– 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 with the disbursement
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.
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.
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.
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, and/or breach of contract (consequential) damages.
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.
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 subsequent mechanics liens. 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.
No. New Hampshire requires that the ex parte petition include a “reasonably accurate description of the land improved.”
No. The documents must be filed in court and signed by the claimant or the claimant’s attorney.
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.
Yes, a mechanics lien may be filed against a project involving a condominium, provided the lien claimant would otherwise have valid mechanics lien rights.
In New Hampshire, if a mechanics lien is satisfied, the lien claimant will withdraw his court action.
New Hampshire does not have statutory lien waiver forms; therefore, you can use any lien waiver form. Since lien waivers are unregulated, be careful when reviewing and signing lien waivers.
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.
To learn more about lien waivers, see our New Hampshire Lien Waiver FAQs and Resources.
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Want to just fill out the New Hampshire mechanics lien form yourself and get it filed? Download an easy-to-fill-out mechanics lien document template for free. All Levelset documents are created and curated by construction attorneys and payment experts.
The provisions of the New Hampshire statutes that permit the filing of mechanics liens and materialman’s liens can be found in New Hampshire’s Construction Lien Law, N.H. Rev. Stat. T. XLI, Ch. § 447:2 et. seq. The full text of the New Hampshire Construction Lien Law is provided below, and has been updated as of 2016.
I. If any person shall perform labor, provide professional design services, or furnish materials to the amount of $15 or more for erecting or repairing a house or other building or appurtenances, or for building any dam, canal, sluiceway, well or bridge, or for consumption or use in the prosecution of such work, other than for a municipality, by virtue of a contract with the owner thereof, he or she shall have a lien on any material so furnished and on said structure, and on any right of the owner to the lot of land on which it stands.
II. In this section, “professional design services” means any services provided by a licensed architect, licensed landscape architect, licensed engineer, permitted septic designer, certified wetland scientist, certified soil scientist, or licensed land surveyor that is directly related to the improvement of real property.
If a person shall perform labor or furnish materials or fuel to the amount of $15 or more for the making of brick, by virtue of a contract with the owner thereof, he shall have a lien upon said materials and fuel and upon the brick with the kiln containing said brick, for such labor, materials or fuel. Said lien shall continue for 90 days after said brick are burned, and may be secured by attachment as provided in RSA 447:10.
If a person shall, by himself or others, or by teams or machinery, perform labor or furnish supplies to the amount of $15 or more toward rafting, driving, cutting, hauling, sawing or drawing wood, bark, lumber or logs, or toward cooking or hauling supplies in aid of such labor, by virtue of a contract with the owner of the wood, bark, lumber or logs, he shall have a lien thereon for such labor or supplies.
If a person shall perform labor, provide professional design services as defined in RSA 447:2, or furnish materials to the amount of $15 or more for any of the purposes specified in RSA 447:2, 447:3 and 447:4 and in RSA 453, by virtue of a contract with an agent, contractor or subcontractor of the owner, the person shall have the same lien as provided in said sections, provided, that he or she gives notice in writing to the owner or to the person having charge of the property that he or she shall claim such lien before performing the labor or furnishing the material for which it is claimed.
Such notice may be given after the labor is performed, the professional design services are provided, or the material is furnished, and said lien shall be valid to the extent of the amount then due or that may thereafter become due to the contractor, agent or subcontractor of the owner. The account required under RSA 447:8 may also be given at the time said notice is given.
If a person shall perform labor, provide professional design services, or furnish materials to the amount of $15 or more, in the grading, masonry, bridging or track-laying of a railroad, under a contract with an agent, contractor or subcontractor of the proprietors thereof, the person shall have a lien upon the railroad and the land upon which it is constructed; provided, that he or she gave notice in writing to such proprietors, or to the person having charge of the railroad, that he or she should claim such lien before performing the labor, providing the services, or furnishing the materials for which it is claimed.
Any person giving notice as provided in RSA 447:5–7 shall, as often as once in 30 days, furnish to the owner, or person having charge of the property on which the lien is claimed, an account in writing of the labor performed, professional design services provided, or materials furnished during the 30 days; and the owner or person in charge shall retain a sufficient sum of money to pay such claim, and shall not be liable to the agent, contractor or subcontractor therefor, unless the agent, contractor or subcontractor shall first pay it.
The lien created by RSA 447:2-7, inclusive, shall continue for 120 days after the services are performed, or the materials, supplies or other things are furnished, unless payment therefor is previously made, and shall take precedence of all prior claims except liens on account of taxes.
Any such lien may be secured by attachment of the property upon which it exists at any time while the lien continues, the writ and return thereon distinctly expressing that purpose.
Such attachment shall have precedence over all lien claims for labor, professional design services, materials, or other things done or furnished after the attachment was made, except the same were done or furnished in the performance of a contract existing when the attachment was made, or were necessary for the preservation of the property attached.
Such attachment shall have precedence and priority over any construction mortgage. For the purposes of this section, a construction mortgage shall mean any mortgage loan made for the purpose of financing the construction, repair or alteration of any structure on the mortgaged premises where the lien secured by such attachment arises from the same construction, repair or alteration work. However, such attachment shall not be entitled to precedence as provided in this section to the extent that the mortgagee shows that the proceeds of the mortgage loan were disbursed either toward payment of invoices from or claims due subcontractors and suppliers of materials or labor for the work on the mortgaged premises, or upon receipt by the mortgagee from the mortgagor or his agent of an affidavit that the work on the mortgaged premises for which such disbursement is to be made has been completed and that the subcontractors and suppliers of materials or labor have been paid for their share of such work, or will be paid out of such disbursement. A mortgagee shall not knowingly accept a fraudulent affidavit, and shall encourage and promote the practices outlined in RSA 447:12-b. Any agreement waiving the precedence provided by this section shall be enforceable only upon like showing by the mortgagee. The precedence provided by this section shall not apply to wage claims of employees working for wages under an employer-employee relationship, as defined in RSA 275:42. A mortgagor or his agent making a willfully false affidavit under this section shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.
I. Within 10 business days of the execution of a construction mortgage, including any refinancing thereof, the mortgagor or his agent shall post in a conspicuous place on the jobsite for which the construction funds were secured, the name, address and telephone number of the institution providing the construction funds.
II. Any person entitled to a lien pursuant to RSA 447:2-7 shall, within 15 business days of the posting required in paragraph I or of commencing to furnish services, materials, supplies or other things, whichever is later, provide written notice to the institution providing the construction funds that such person is furnishing services, materials, supplies or other things. The written notice provided under this paragraph shall include the name and address of the jobsite. Failure to provide the notice required by this paragraph shall not alone invalidate the lien created by RSA 447:2-7.
III. At least 48 hours prior to requesting any construction mortgage requisition, the mortgagor or his agent shall post in a conspicuous place on the jobsite for which the construction funds were secured, the anticipated funding date for said requisition. The mortgagee shall require a copy of said notice, which shall be certified as to its posting by the mortgagor or his agent prior to disbursing any funds.
IV. In the event that a written contract between the mortgagor or his agent and any person furnishing services, materials, supplies or other things shall provide that the disbursement of construction funds, a portion of which is intended to pay such person, shall be by a 2-party check, the mortgagor or his agent shall transmit a copy of such agreement to the mortgagee. Upon receipt of a copy of such written agreement, the mortgagee shall subsequently disburse funds intended in part to pay any such person only by a check made payable to the mortgagor or his agent and such person. Unless otherwise agreed by the mortgagor and mortgagee, disbursements shall be made only for actual work completed and materials consumed on the jobsite for which the construction funds were secured.
If logs are attached, the officer making the attachment may pay the boomage thereon, if any, and return the amount so paid on the writ, and it shall be included in the costs recovered.
No lien shall be defeated by taking a note, unless it was taken in discharge of the amount due and of the lien.
The liens given by RSA 447:5–14, inclusive, shall attach to any money due or to become due from the state or from any political subdivision thereof by virtue of any contract for any public work or construction, alteration, or repair, in the performance of which contract the lienor participated by performing labor, providing professional design services, or furnishing materials or supplies. Such liens shall not attach, however, unless filed within 90 days after the completion and acceptance of the project by the contracting party, whether such contracting party is the state or any political subdivision of the state.
Officers, public boards, agents or other persons who contract in behalf of the state or any political subdivision thereof for the construction, repair or rebuilding of public buildings, public highways, bridges or other public works shall if said contract involves an expenditure of $35,000, and may if it involves an expenditure of less amount, obtain as a condition precedent to the execution of the contract, sufficient security, by bond or otherwise, in an amount equal to at least 100 percent of the contract price, or of the estimated cost of the work if no aggregate price is agreed upon, conditioned upon the payment by the contractors and subcontractors for all labor performed or furnished, for all equipment hired, including trucks, for all material used and for fuels, lubricants, power, tools, hardware and supplies purchased by said principal and used in carrying out said contract, and for labor and parts furnished upon the order of said contractor for the repair of equipment used in carrying out said contract.
[Repealed 1981, 4:6, eff. March 6, 1981.]
To obtain the benefit of the bond, any person, firm or corporation having any claim for labor performed, materials, machinery, tools, or equipment furnished as aforesaid shall, within 90 days after the completion and acceptance of the project by the contracting party, file in the office of the secretary of state, if the state is a contracting party, or with the department of transportation, if the state is a party to said contract by or through said department, or with the department of administrative services, if the state is a party to said contract by or through said department, or in the office of the clerk of the superior court for the county within which the contract shall be principally performed, if any political subdivision of the state is a contracting party, a statement of the claim, a copy of which shall forthwith be sent by mail by the office where it is filed to the principal and surety.
Said claimant shall, within one year after filing such claim, file a petition in the superior court for the county within which the contract shall be principally performed to enforce his claim or intervene in a petition already filed, with copy to the principal and surety, and such further notice as the court may order. Such petition shall contain an allegation of the nature and subject matter of the claim or contract or indebtedness relied upon, of the execution and delivery of the bond, and of the facts showing compliance by the claimant with the provisions of RSA 447:17 and this section relative to the filing of said claim. Subsequent pleadings may thereafter be filed by any party in interest for the purpose of formulating issues under the direction of the court. The court shall examine all claims which have been duly filed in accordance herewith, and fix a date for hearing thereon, with notice to all creditors who have filed claims as herein provided, and to the principal and surety or sureties, and find the respective amounts due such party claimants and their rights to participate in the security and make such orders and decrees as justice may require. The court may require at any hearing on said claims the attendance of any official with whom claims have been filed, with such claims, or require such official to furnish a copy of such claims for the use of the court.