New Hampshire Lien Law Amended January 2013

Any services provided by a design professional, such as a licensed architect, licensed landscape architect, licensed engineer, etc., are now allowed the protection of a mechanic’s lien. Effective January 2013, N.H. RSA 447:2 extends explicit mechanic’s lien protection to “design professionals” provided certain requirements are met.  While this amendment provides some clarification of the parties entitled to mechanic’s lien protection in New Hampshire, more explicit clarification could still be used.

Old N.H. RSA 447:2, 447:5 and Previous Protection

Previously in New Hampshire, mechanic’s lien protection was extended to parties to a construction contract who met the following criteria/description:

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If any person shall, by himself or others, perform labor or furnish materials to the amount of $15 or more for erecting or repairing a house or other building or appurtenances. . .he 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.  N.H. RSA 447:2 (previous)

If a person shall by himself or others perform labor 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, he shall have the same lien as provided in said sections,  N.H. RSA 447:5 (previous)

This was interpreted to clearly provide protection to general contractors, first and second tier subcontractors, and material suppliers to at least the general and a first-tier sub.  Other parties to the project, however, may or may not have been covered.  In fact, the Resources section of levelset’s website noted the issue in the New Hampshire section.  As noted there, New Hampshire provided protection to “general contractors, subcontractors, laborers, and material/equipment suppliers.”  The section went on to state, however, that “although there has not been case law on the issue, it seems likely that professional designers, engineers, and surveyors would also be entitled to mechanic’s lien protection”, and that “sub-sub-subcontractors (likely) and suppliers to suppliers (definitely) do not have lien rights in New Hampshire.”

That bit of explanation proved prescient, as the parties determined “likely” to be entitled to mechanic’s lien law protection are now specifically protected.

New N.H. RSA 447:2 and Current Protection

It is now specifically clear that protection in New Hampshire is extended to parties who provide “professional design services” to a construction project, provided the improvements are actually made.  For mechanic’s lien purposes, “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. N.H. RSA 447:2 (current)

While design professionals as defined above may have had protection under the previous iteration of the law, it is now expressly clear that their services warrant mechanic’s lien protection.  Any services provided by a design professional, such as a licensed architect, licensed landscape architect, licensed engineer, etc., are now allowed the protection of a mechanic’s lien.

That’s Good, But Now Finish the Job

The explicit inclusion of design professionals into the class of construction project parties eligible to file a mechanic’s lien is a large step in the right direction of clarifying the parties entitled to mechanic’s lien protection in New Hampshire.  However, there is still some uncertainty regarding the entire list of people allowed to file.  Primarily, equipment lessors are not specifically mentioned in the New Hampshire statutes – it is generally assumed that an equipment lessor would be protected, provided that he/she is within 2 tiers of the prime contractor.  With no explicit language in the statute, though, equipment lessors are now placed in the same gray area that design professionals just left.