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#59:  New Hampshire's "Right to Repair" Law

8/1/2017

8 Comments

 
Like many states, New Hampshire has a so-called “right to repair” statute for residential construction defect cases. Found in RSA 359-G, it is intended to provide a period of time before a homeowner commences a lawsuit for the parties to attempt an out-of-court resolution, by giving the contractor a crack at making things right. But our statute has far less teeth than many other states' statutes. Here's how it works:

First, with the purchase and sales agreement or written contract for construction the contractor is supposed to give a written notice advising the homeowner of the statutory requirement for opportunity to repair defects. The penalty for failure to provide this notice? NONE. (In some states, the contractor loses his statutory opportunity to repair.)

Next, if the homeowner believes there has been defective work, before suing he or she is supposed to detail the problems in writing to the contractor. The penalty for failure to provide this notice prior to suit? Up to a 60-day “stay” of the lawsuit at the request of the contractor. (In some states the penalty is outright dismissal of the lawsuit.)

Next, within 30 days of receiving the homeowner notice of defects, the contractor may either (a) offer to settle the claim by monetary payment, the making of repairs, or a combination of both, without inspection; (b) propose to inspect the residence first; or (c) completely reject the claim (in which case the homeowner can sue immediately). If the contractor chooses (b) and gives notice that he wishes to inspect the premises before committing to anything, must the homeowner allow the inspection? Interestingly, the statute says that “homeowners are encouraged, but not required, to provide access for an inspection.” The penalty for not allowing one? NONE. (In some states, refusing the inspection bars a later suit entirely.)

If the contractor offers to make repairs (either initially or after an allowed inspection) and the homeowner accepts the offer, either the contractor will perform within the time frame agreed upon, or he won't. If he does perform, problem solved; no need for a lawsuit. If he doesn't, the homeowner can sue either for the original defects or for breach of the settlement agreement.

Unlike some states which give the contractor an absolute right to repair, in New Hampshire a homeowner can simply reject the contractor's settlement offer and file a lawsuit. At that point the statute threatens a mild penalty: if the homeowner doesn't win a judgment for more than the value of the repair offer, he must pay the contractor's “costs” (which do not include attorneys' fees) incurred in the lawsuit. If the homeowner wins nothing, obviously any repair offer was more valuable (but in that case, the contractor would be awarded his costs anyway as the prevailing party). But if the homeowner wins a judgment – presumably based on the cost of particular repairs – how does the contractor prove that the value of his repair offer exceeded the amount of that judgment? Surely he won't have testified that the homeowner's claimed damages were too low! And if the judgment is for the exact same repairs that the contractor offered to make, using the judgment to establish their value automatically means both figures will be exactly equal, and the contractor won't get his costs. This diminishes the sting of the “penalty.”

Perhaps the best feature of the statute is its list of things that a residential contractor will not be liable for: (a) normal shrinkage from drying or settlement; (b) reliance on information from the government or on building codes then in effect; (d) defects disclosed to the homeowner prior to purchase or that the homeowner should have discovered when buying the residence from a prior owner; (e) warranty items that the contractor tried to but wasn't allowed to address; (f) normal wear and tear; (g) items on which the homeowner did not perform normal and reasonable maintenance; (h) items that were altered by the homeowner. It is useful to have such a concise statement of contractor defenses, for both sides' benefit.

8 Comments
June E Champagne
6/23/2018 12:45:32 pm

Joe montalvo has left us with 150,000$ worth of home repairs from a fire. We are now 23,000$ I dept to a law firm that said it could help us. We have been sued by a subcontractor for further payment, that settled in our favor but did not pay for any legal fees. We contacted the state and were told that we should have contacted them before hiring a law firm. Tell us now, who in NH, has our rights as citizens in this state and are willing to help us???? That's what we thought, no one. Thanks

Reply
eliaandponto.com link
10/21/2018 09:19:45 am

Nice blog and absolutely outstanding. You can do something much better but i still say this perfect.Keep trying for the best.

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Jennifer
1/3/2019 11:42:22 pm

Thank you for this detailed explanation. A quick question. I recently had my house roof replaced by a reputable contractor. Unfortunately, the interior of my home was damaged when water leaked into the house during the roofing job. The owner of the company verbally, and in a text message, accepted negligence and offered to make the repairs. However, nearly two months have passed and no attempt to initiate the repairs has been made. I've sent so many emails and text messages asking for the owner to sit down with my husband and I so that we can work something out. He will make an appointment to meet with us and fail to keep it. By failing to keep it, I mean he just doesn't show up. He doesn't even have enough respect for us to give a call and say he cannot make it. This has happened several times. We have not completed paying him for the job. At this point, what should I do. Repairs need to be made and I have a reliable carpenter who can complete the job. I don't believe that I have the legal right to unilaterally decide that I can pay my carpenter and then subtract that cost from the roofer's bill. Do I need to initiate a small claims court case (this will be under the 10,000 dollar limit set by NH state)? Or, should I get an attorney involved? As well, is there any agency at the state level that licenses businesses that would be interested to hear about my plight?

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Frank Spinella
1/4/2019 11:08:39 am

Jennifer, thanks for posting. Blogs are not the right spot for legal advice. Give me a call if you want to discuss. Frank

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David
4/27/2020 01:48:04 pm

good afternoon i am david i would like to work for you

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Construction Malfunction Lawsuit in South Carolina link
7/12/2021 10:34:54 am

Thank you for sharing how the New Hampshires construction lawsuit process works. I recently had to pursue a similar process in Litchfield Beach, South Carolina so it is highly interesting to me to see how other states handle these issues. In South Carolina we also were able to settle with the contractor prior to legal action as an alternative. We worked with Segui Law Firm in Mount Pleasant and they were a huge help in us navigating this process and avoiding a full lawsuit. Avoiding the full hassle of legal proceedings with the help of professionals who understand SC state construction law was absolutely vital to us getting the best result with our condo remodel. Definitely recommend being advised by a lawyer who understands your states remodel and construction legal proceedings even if you do not pursue full legal action!

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9/12/2022 11:14:32 am

If the judgment is for the exact same repairs that the contractor offered to make, using the judgment to establish their value automatically means both figures will be exactly equal, and the contractor won't get his costs. Thank you, amazing post!

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Best family law attorney link
9/12/2022 11:42:19 am

Interestingly, the statute says that homeowners are encouraged, but not required, to provide access for an inspection. Thank you for making this such an awesome post!

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