Sending a New Hampshire preliminary notice is an effective way to speed up payment on a construction project. A preliminary notice is an informational document typically sent to the property owner near the beginning of a construction project. Here's what you need to know about the rules and requirements for sending preliminary notice in New Hampshire.
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.
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 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.
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.
How to send preliminary notice in New Hampshire (DIY)
Read the step-by-step guide for preliminary notices in New Hampshire. The guide will walk you through how to prepare and serve your preliminary notice in New Hampshire, including the required information, deadlines, and rules for delivery.
New Hampshire construction law is strict about the language and information that you must include on a preliminary notice. Our forms are written by construction attorneys to meet New Hampshire’s requirements, making it easy for you to get this part right.
Make sure you fill the form out carefully. That’s because making a mistake while preparing your preliminary notice could cause you to lose your right to file a New Hampshire mechanics lien down the line. Include all required information, and make sure it’s 100% accurate.
Deliver the notice
You need to deliver your preliminary notice before you furnish and materials or labor on the project. Deliver the notice to the property owner and mortgagee of construction mortgage (if any). Either deliver the notice personally, or send it via certified mail, return receipt requested.
How to send a Preliminary Notice with Levelset
Select Preliminary Notice document.
Provide basic job information.
Levelset sends the document for you. Postage included!