Furnisher of labor, professional design services, or material to owner, general or 1st-tier subcontractor. Suppliers to suppliers are not covered, at least not where the customer is supplying the first-tier subcontractor. Coverage is unclear if the claimant’s customer is actually supplying the general contractor. ‘Professional design services’ means services provided by a licensed architect, licensed landscape architect, licensed engineer, permitted septic designer, certified wetland scientist, certified soil scientist, or licensed land surveyor. [447:2, 447:5; Westinghouse Elec. Supply Co. v. Electromech, Inc., 409 A.2d 1142 (1979); Schor at §30.02[B]]
1. Who May Have A Lien?
Private:
Public:
Furnishers of labor, professional design services, equipment, supplies or material at least to general or sub. Suppliers to suppliers are not covered. [447:15; Lyle Signs, Inc. v. Evroks Corp., 132 N.H. 156, 562 A.2d 785 (1989)]
2. What Is The Lien Against?
Private:
Structure and land on which it stands. [447:2]
Public:
-Money due from the public body.
-Contractor’s payment bond. [447:15 and 447:16]
3. Who Must Give The Preliminary Notice?
Private:
Suppliers of labor, professional design services, or materials to agent, contractor or subcontractor. [447:5]
Public:
MONEY DUE FROM THE STATE:
There are apparently no preliminary notices required, however it would be a good idea to give a prelien comparable to the notice required for private works. [447:15]
PAYMENT BOND:
No one. Recommend, however, obtaining a copy of the bond at the outset of claimant’s involvement with the project. [447:15, 447:16, 447:5]
4. To Whom Is The Preliminary Notice Given?
Private:
-Owner or person in charge of property. [447:5]
-Mortgagee of construction mortgage. [447:12-b]
Public:
A preliminary notice is not required.
5. When Must Preliminary Notice Be Given?
Private:
TO OWNER:
Notice must be received BEFORE performing labor or professional design services, or before furnishing materials. If given later, the amount one may claim is ultimately limited to the amount owed to the contractor at the time the notice is received. [447:5, 447:6]. ALSO, after giving prelien, every 30 days claimant must give the owner a written account stating amount of labor, professional design services or materials furnished during preceding 30 days. Owner must then withhold sufficient funds to cover claim. If, however, the prelien isn’t received until after the claimant furnishes all of its labor, professional design services or materials, then the notice every 30 days isn’t necessary. [447:8; Schor at §30.02[B]]
TO MORTGAGE LENDER:
Notice must be received within 15 business days of lender posting at the job site its notice regarding construction funds, OR within 15 days of claimant beginning to furnish labor, professional design services, or materials, whichever is LATER. [447:12-b]
Public:
Not applicable.
6. Contents of Preliminary Notice.
Private:
TO OWNER:
Notice of intention to claim a lien. Neither the statute nor the case law requires any specific signature on the notice. [447:5] The notice to be given every 30 days needs to be a written account of labor or professional design services performed or materials furnished during the preceding 30 days. [447:8]
TO MORTGAGE LENDER:
Notice that claimant is furnishing materials etc.; include name and address of jobsite. Neither the statute nor the case law requires any specific signature on the notice. [447:12-b]
Public:
Not applicable.
7. How Must Preliminary Notice Be Given?
Private:
No specific provision; regular mail and registered or certified mail or personal service recommended, so as to have proof of receipt of notice. The consequences of refusal of acceptance of the mail are not clear. The notice requirement can be waived by the owner. It is recommended to ensure delivery in all cases, however. [Schor at §30.02[B]]
Public:
Not applicable.
8. Who Must Give Interim Notice?
Private:
An interim notice is not required.
Public:
An interim notice is not required.
9. Who Must Give Final Notice (Notice of Claim)?
Private:
No one, although if claimant gives prelien notice, claimant must give owner notice at least every 30 days, as discussed above.
Public:
MONEY DUE FROM STATE:
All claimants must secure lien by filing attachment. [447:15]
PAYMENT BOND:
All claimants. [447:17]
10. To Whom Is Final Notice Given?
Private:
Not applicable except as below; a lien is perfected by judicial attachment. See “Time to start suit’ section, below.
Public:
MONEY DUE FROM THE STATE:
“Filed.” [447:15]
PAYMENT BOND:
-Office of the Secretary of State, if the state is the contracting party, or
-Department of Transportation, if the state is contracting through that department, or
-Department of Administrative Services, if the state is contracting through that department, or
-Office of the clerk of superior court for county in which the contract is principally performed, when contract is with some other political subdivision. [447:17; Schor at §30.03[C]]
11. When Is Final Notice Given?
Private:
Not applicable except as below; a lien is perfected by judicial attachment. See “Time to start suit’ section, below.
Public:
MONEY DUE FROM THE STATE:
Filed within 90 days after the completion and acceptance of project. [447:15]
PAYMENT BOND:
Received within 90 days after the completion and acceptance of project. [447:17] It may be acceptable to give the final notice before completion. [Fastrack Crushing Services, Inc. v. Abatement International/Advatex Associates, Inc. 153 N.H. 284, 893 A.2d 674 (2006)]
12. How Is Final Notice Given?
Private:
Not applicable except as below; a lien is perfected by judicial attachment. See “Time to start suit’ section, below.
Public:
MONEY DUE FROM THE STATE:
Filed. [447:15]
PAYMENT BOND:
Filed with appropriate state agency or office. [447:15, 447:17]
13. Contents of Final Notice
Private:
Not applicable except as below; a lien is perfected by judicial attachment. See “Time to start suit’ section, below.
Public:
MONEY DUE FROM THE STATE:
Not specified. Please contact Levy von Beck & Associates for more information. [447:15]
PAYMENT BOND:
Statement of claim; name of claimant and contracting parties recommended. Neither the statute nor the case law requires any specific signature on the notice. [447:17]
14. Time to Start Suit / Foreclose?
Private:
Within 120 days after claimant last furnishes labor, professional design services, or materials, claimant must start suit by writ of attachment on materials, building, and property. [447:9] Note that the lien attaches to the materials, structure and land. If the owner posts a bond or deposits the remaining contract funds with the court, the claimant must obtain a court order or an agreement of the parties that the lien, attachment and priority also attach to the bond or funds. [512:38 – 512:40; Schor at §30.02[E]]
Public:
MONEY DUE FROM THE STATE:
No specific provision; recommend starting action sooner rather than later. Please contact Levy von Beck and Associates for further information.
PAYMENT BOND:
Within one year after filing final notice. Note that a copy must also be given to the principal and surety within this one-year time frame. [447:15, 447:18; General Insulation Co. v. Eckman Const., 992 A.2d 613 (N.H.,2010)]
