New Hampshire Preliminary Notice Guide and FAQs

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New Hampshire Preliminary Notice FAQs

About New Hampshire Preliminary Notices

New Hampshire Preliminary Notice Rules
At a Glance


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Preliminary Notices Are Required

Preliminary notice is required for all project participants not in direct contact with the property owner.


N/A
Notice Not Required from GCs

Preliminary Notice is not required for those contracted directly by the property owner.


Prior
to WORK
Subcontractors Must Send Notice

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).


Prior
to WORK
Suppliers Must Send Notice

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).


icon-can
Notice Can be Sent Late

New Hampshire appears to be relatively lax regarding the notice deadlines - especially since there is no strictly defined deadline set forth by the statute. However, sending the notice late may limit the amount protected to the amount due to the GC at the time the notice was received. It is unclear if the monthly statement of account is impacted by being late.


Icon_SearchContractor
Send to Property Owner (and Mortgagee of Construction Mortgage, if any)

Notice in New Hampshire is required to go the the property owner. It appears that it should also be provided to the mortgagee of a construction mortgage (construction lender) as well, if there is one supplying funds on the project.

Preliminary notice not required in WV
Preliminary Notice Not Required

Preliminary notice is not required in order for project participants on New Hampshire public construction projects to retain the ability to make a claim against a payment bond, if necessary. However, it is generally best practice to provide preliminary notice, anyway, in order to promote visibility, open channels for communication, and streamline payment.


X
N/A

On public jobs, any claims for non-payment are made against the general contractor's bond. Since GCs will not make a claim against their own bond for non-payment, they do not have bond claim rights, and have no preliminary notice requirement.


X
No Notice Required from Subs

Preliminary notice is not required in order for project participants on New Hampshire public construction projects to retain the ability to make a claim against a payment bond, if necessary. However, it is generally best practice to provide preliminary notice, anyway, in order to promote visibility, open channels for communication, and streamline payment.


X
No Notice Required from Suppliers

Preliminary notice is not required in order for project participants on New Hampshire public construction projects to retain the ability to make a claim against a payment bond, if necessary. However, it is generally best practice to provide preliminary notice, anyway, in order to promote visibility, open channels for communication, and streamline payment.

New Hampshire has a unique and relatively opaque preliminary notice scheme. Much of New Hampshire’s lien law is archaic (see, a $15 floor for materials giving rise to lien rights), and it’s preliminary notice requirements are not well-defined.

In New Hampshire, there are technically two separate “preliminary notices” that must be given, and both have their own separate requirements:

  1. A single preliminary notice is to be given in writing to the property owner by all parties who did not contract with the property owner; and
  2. Additionally, the parties required to provide the initial preliminary notice must also provide a recurring written accounting of the work performed or material furnished.

In addition to the interesting scheme of the single + recurring preliminary notice scheme, the deadlines for New Hampshire preliminary notices are also not entirely clear.

There is no specific mandatory deadline for sending the single preliminary notice. New Hampshire statutes state that the party giving notice should “give 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” [emphasis added]. However, in the very next statutory section, it is made expressly allowable that “Such notice may be given after the labor is performed, the professional design services are provided, or the material is furnished.” If the notice is given after furnishing, however, it appears that a subsequent lien is only be allowed to the extent and amount there is money due or to become due to the party who hired the claimant. Note, however, that this provision is unclearly worded, and the lien may be limited to the amount due to the GC only, when the notice is provided.

The requirement for the recurring preliminary notice is just as complex and confusingly worded. New Hampshire requires that all parties who were required to give the original preliminary notice, also provide an account of the labor or material provided “as often as once in 30 days.” This has generally been taken to mean that the noticing party should provide the owner with a monthly statement of the labor or materials performed in the prior month, to obligate the owner to retain funds sufficient to pay for that work. This is not too confusing, but the previous notice section specifically notes that this accounting “may also be given at the time [the original notice] is given.” That’s kind of a mess.

To be best protected, however, it appears that a party in New Hampshire who did not contract with the property owner should send a notice 1) prior to furnishing labor or materials (or as soon thereafter as possible); and 2) provide an additional notice each month thereafter describing the work performed in the previous month.

Preliminary Notice Frequently Asked Questions

Sending preliminary notices in New Hampshire can be tricky. There are multiple notices that may be required, and certain notices must be sent multiple times. Accordingly, if you're sending preliminary notices in New Hampshire, it's important to get all the details right. And, if you're receiving prelims, it's important to know what you're looking at and know what to do in followup. Since prelims are subject to a lot of complex rules and requirements, this can all be difficult. Here are some frequently asked questions (and their answers) about the New Hampshire preliminary notice process.

Prelim FAQs on Private Projects

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.

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.

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 a lien may potentially  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.

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.

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 m

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, consider the notice delivered when received or refused if sent by certified mail.

Public Jobs

Do I Need to Send a New Hampshire Preliminary Notice?

Preliminary notice is not specifically required for either a lien on the funds due from the public entity or a claim on the contractor’s bond. However, any party may give preliminary notice, and, at least prior to claiming a lien on the contract funds it may be best practice to provide a preliminary notice similar to the preliminary notice required for a private mechanic’s lien.

When do I Need to Send a New Hampshire Preliminary Notice?

N/A

What if I Send the New Hampshire Preliminary Notice Late?

N/A

How Should the New Hampshire Preliminary Notice be Sent?

N/A

To Whom Must the New Hampshire Preliminary Notice be Given?

N/A

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New Hampshire Preliminary Notice Form Template

The information that must be included on a New Hampshire preliminary notice is set forth and required by New Hampshire statutes. This doesn’t mean that the form has to look a certain way, but it does mean that the document must contain certain information. And, there are multiple notice forms that apply to different situations in which notice must be provided. The forms provided here for free by Levelset are compliant with the New Hampshire rules. You can download them for free, or use our system to send or request them easily.

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