New Hampshire lien waiver: nothing voids one, and nothing gets recorded

Search chapter 447 for the word waiver and this is all you find

Eighteen sections, from vessels at 447:1 to the public works bond petition at 447:18, and only one of them contains any form of the word waive. It is in RSA 447:12-a, the section giving a lien attachment precedence over a construction mortgage, and the sentence reads that any agreement waiving the precedence provided by this section shall be enforceable only upon like showing by the mortgagee. That is a rule about a bank's priority, not about your right to a lien.

So there is no New Hampshire equivalent of the statutes in twenty odd states that void a waiver given before payment. There is no prescribed form, no notarization requirement, no rule that a waiver must be conditional and no rule that it must be exchanged for a check. The New Hampshire Supreme Court has said a waiver of a mechanic's lien requires an actual intention to give up a known right and is not presumed, but that is a canon of construction and it is a thin thing to be relying on once your own signature is on a document headed unconditional waiver and release.

What that leaves is ordinary contract law. Read the release you are handed, and if it says the signer unconditionally waives all lien rights through a date, understand that it does exactly that on signature, and that the bounced check afterwards is a separate lawsuit rather than a defense.

The notice before you start, and what a late one costs

Anyone working under a contract with an agent, contractor or subcontractor rather than with the owner gets a lien under RSA 447:5 only if written notice went to the owner, or to the person having charge of the property, saying the lien will be claimed, before the labor is performed or the material furnished. That is a pre start notice, and it is unusual. Most states give you a window measured from the first day on site. New Hampshire measures backwards from it.

RSA 447:6 is the rescue and it is a partial one. The notice may be given after the labor is performed or the material furnished, and the lien is then valid to the extent of the amount then due or that may thereafter become due to the contractor, agent or subcontractor of the owner. In plain terms, a late notice does not destroy your lien, it shrinks it to whatever the owner has not yet paid your general. Give the notice before you start and the lien covers your whole claim. Give it late on a job where the owner has already paid ahead and there may be nothing left for it to attach to.

Then RSA 447:8, which nobody does and everybody should. Once you have given notice you must, as often as once in thirty days, furnish the owner or the person in charge of the property a written account of the labor, design services or materials furnished during those thirty days. In exchange, the owner shall retain a sufficient sum of money to pay the claim and is not liable to the contractor or subcontractor for it unless the contractor pays you first. That is a statutory stop payment on your general's draw, and it runs every thirty days for as long as you keep sending the account.

One hundred twenty days, and then a writ rather than a filing

RSA 447:9 says the lien created by 447:2 through 447:7 continues for one hundred twenty days after the services are performed or the materials furnished, unless payment is made first, and takes precedence over all prior claims except tax liens. There is no extension, no notice of continuation and no recording that preserves it.

RSA 447:10 is the sentence that makes New Hampshire different from almost every other state. 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 the return on it distinctly expressing that purpose. There is no such thing as filing a New Hampshire mechanics lien at the registry of deeds. You secure it by suing and attaching the property inside the one hundred twenty days, which means a lawyer, a writ and a court, not a form and a recording fee.

Two consequences follow. The first is that the one hundred twenty days is a hard deadline for starting litigation, not for paperwork, so it has to be treated as much shorter than it reads. The second is priority. Under RSA 447:11 the attachment takes precedence over lien claims for work done after it was made, and under RSA 447:12 attaching lien creditors share pro rata in the property or its proceeds. Being early is worth money.

RSA 447:14 is a small mercy worth knowing: no lien is defeated by taking a note, unless the note was taken in discharge of the amount due and of the lien. Accepting a promissory note for the balance does not by itself end your lien. Signing a release does.

The construction mortgage rules, and the affidavit that can be a felony

RSA 447:12-a gives a lien attachment precedence and priority over a construction mortgage, which is a strong position. The bank gets out of it in only two ways: by showing that the loan proceeds were disbursed toward payment of invoices or claims of subcontractors and suppliers on that work, or by showing it received an affidavit from the mortgagor or his agent that the work has been completed and the subs and suppliers have been paid or will be paid out of that disbursement. The mortgagee may not knowingly accept a fraudulent affidavit, and a mortgagor who makes a willfully false one commits a misdemeanor, or a felony if it is not a natural person.

That is the context for the one waiver sentence in the chapter. An agreement waiving the precedence given by 447:12-a is enforceable only upon a like showing by the mortgagee. So if a lender asks you to sign a subordination, the statute already limits what that signature is worth. It says nothing about the ordinary lien waiver you sign at a draw, and nobody should read it as protection there.

RSA 447:12-b adds two housekeeping rules people ignore. Within ten business days of executing a construction mortgage the mortgagor must post the lender's name, address and telephone number conspicuously on the jobsite. Anyone entitled to a lien must give that lender written notice, including the name and address of the jobsite, within fifteen business days of the posting or of starting work, whichever is later. Failing to send it does not on its own invalidate your lien, but it is the cheapest way to make sure the institution holding the money knows you exist. The same section makes a two party check arrangement binding on the lender once a copy of the agreement reaches it.

What to do about it on a New Hampshire job

Send the 447:5 notice before the first day on site if you are not contracting with the owner. It is one letter, it has to say you will claim a lien, and giving it early is the difference between a lien for your whole claim and a lien for whatever the owner still owes your general.

Then keep sending the thirty day account under 447:8, because that is what forces the owner to hold money back and takes him off the hook to your general only if he pays you. Most subs send the first notice and nothing after it, and hand back the one piece of leverage the chapter gives them.

Sign conditional, never unconditional, until the money has cleared your bank, and put the amount and the through date on the form. Nothing in chapter 447 will narrow a waiver that does not narrow itself, and nothing in it will save a signature given for a check that never arrived.

Above all, diary the one hundred twenty days as a date to be in court rather than a date to file paperwork. There is no recorded New Hampshire mechanics lien. The lien is secured by attaching the property under 447:10 while it is still alive, which means the decision to bring in a lawyer has to be made well before day one hundred twenty, not on it.

Which of the four to sign on a New Hampshire job

New Hampshire supplies no statutory safety net, so the wording of the form is the entire protection. A conditional waiver ties the release to the payment clearing. An unconditional one gives it up on the day you sign, and no section of chapter 447 reads a condition back in.

Questions people ask

Working in another state? The general lien waiver forms page covers all four waiver types, and conditional vs unconditional lien waiver explains which of the two to sign and when.

This page quotes New Hampshire RSA 447:5 and explains what it says. It is not legal advice, and a statute can be amended. Read the linked section before you rely on it.