Unlike most states, New Hampshire requires an “attachment” – a court order that property shall be held as security – before a mechanic’s lien may be filed. RSA 447:9 provides that the lien “shall continue for 120 days after the services are performed, or the materials, supplies or other things are furnished” while RSA 447:10 specifies that “Any such lien may be secured by attachment of the property upon which it exists at any time while the lien continues.” But a different statute, RSA 511-A, governs the procedure for getting the attachment approved and recorded.
The basic rule is found in RSA 511-A:1, which provides that “a defendant shall be given notice and an opportunity for a preliminary hearing before any pre-judgment attachment, including attachments of property held by a trustee, shall be made.” An exception exists when there is a need for speed and all will be lost if the claimant must await notice and a hearing. But mechanic’s lien attachments are routinely granted without advance notice to the defendant even if there is no such emergency.
The statutory authority for dispensing with advance notice is RSA 511-A:8: “Upon application to the court, in exceptional circumstances, an attachment may be ordered in advance of notice to the defendant if the plaintiff establishes probable cause to the satisfaction of the court of his basic right to recovery and the amount thereof and in addition thereto the existence of any of the following: . . .” Five scenarios follow, including “III. In equity cases for specific performance of an agreement to transfer land or a unique chattel, there is imminent danger of transfer to a bona fide third party. In such land cases, as well as those to perfect a labor and materials lien under RSA 447, a writ of attachment may be filed at a registry of deeds without prior application and notice, provided said writ is in the form of a lis pendens and specifically restricts its application to the particular real estate described in the writ and the return of attachment.”
Let’s break this down. First, the would-be lienor must show “probable cause to the satisfaction of the court of his basic right to recovery and the amount thereof.” Second, “a writ of attachment may be filed at a registry of deeds without prior application” – that is, without prior application to the court (don’t ask me how one can both make “application to the court” yet not apply to the court at all!) – as long as it is in the form of a lis pendens. A lis pendens (Latin for “pending suit”) puts third parties on notice of a lawsuit (presumably one filed by the would-be lienor in which the attachment is being sought). The "application to the court" and "without prior application" tension was resolved in Topjian Plumbing and Heating, Inc. v. Bruce Topjian, Inc., 129 N.H. 481, 484 (1987), ruling that “recording a lis pendens gives notice but does not create an attachment or perfect a lien.”
It seems clear that the Legislature intended this lis pendens option solely as a means of avoiding the problem that would otherwise arise under RSA 511-A:5 (“Such attachments shall not be effective against bona fide purchasers for value until attachments of real estate have been recorded in the registry of deeds”). After all, the whole point of recording a lis pendens is to eliminate third party purchasers’ bona fides, thus keeping a mechanic’s lien (or a specific performance lawsuit) from becoming worthless in instances where a bona fide purchaser is about to close on the real estate before an attachment hearing with notice can be held.
Until the Topjian case is overturned or the statute is amended, recording a lis pendens won't perfect a mechanic's lien attachment; court approval will still be required in every case. But RSA 511-A:8,III provides scant authority for getting it without notice, at least in the absence of "imminent danger of transfer to a bona fide third party" -- a qualification which is explicit in the first sentence of the subsection, and implicit in the second. It is high time the courts stopped reading the second sentence as a blanket approval of ex parte mechanic's lien attachments.
The basic rule is found in RSA 511-A:1, which provides that “a defendant shall be given notice and an opportunity for a preliminary hearing before any pre-judgment attachment, including attachments of property held by a trustee, shall be made.” An exception exists when there is a need for speed and all will be lost if the claimant must await notice and a hearing. But mechanic’s lien attachments are routinely granted without advance notice to the defendant even if there is no such emergency.
The statutory authority for dispensing with advance notice is RSA 511-A:8: “Upon application to the court, in exceptional circumstances, an attachment may be ordered in advance of notice to the defendant if the plaintiff establishes probable cause to the satisfaction of the court of his basic right to recovery and the amount thereof and in addition thereto the existence of any of the following: . . .” Five scenarios follow, including “III. In equity cases for specific performance of an agreement to transfer land or a unique chattel, there is imminent danger of transfer to a bona fide third party. In such land cases, as well as those to perfect a labor and materials lien under RSA 447, a writ of attachment may be filed at a registry of deeds without prior application and notice, provided said writ is in the form of a lis pendens and specifically restricts its application to the particular real estate described in the writ and the return of attachment.”
Let’s break this down. First, the would-be lienor must show “probable cause to the satisfaction of the court of his basic right to recovery and the amount thereof.” Second, “a writ of attachment may be filed at a registry of deeds without prior application” – that is, without prior application to the court (don’t ask me how one can both make “application to the court” yet not apply to the court at all!) – as long as it is in the form of a lis pendens. A lis pendens (Latin for “pending suit”) puts third parties on notice of a lawsuit (presumably one filed by the would-be lienor in which the attachment is being sought). The "application to the court" and "without prior application" tension was resolved in Topjian Plumbing and Heating, Inc. v. Bruce Topjian, Inc., 129 N.H. 481, 484 (1987), ruling that “recording a lis pendens gives notice but does not create an attachment or perfect a lien.”
It seems clear that the Legislature intended this lis pendens option solely as a means of avoiding the problem that would otherwise arise under RSA 511-A:5 (“Such attachments shall not be effective against bona fide purchasers for value until attachments of real estate have been recorded in the registry of deeds”). After all, the whole point of recording a lis pendens is to eliminate third party purchasers’ bona fides, thus keeping a mechanic’s lien (or a specific performance lawsuit) from becoming worthless in instances where a bona fide purchaser is about to close on the real estate before an attachment hearing with notice can be held.
Until the Topjian case is overturned or the statute is amended, recording a lis pendens won't perfect a mechanic's lien attachment; court approval will still be required in every case. But RSA 511-A:8,III provides scant authority for getting it without notice, at least in the absence of "imminent danger of transfer to a bona fide third party" -- a qualification which is explicit in the first sentence of the subsection, and implicit in the second. It is high time the courts stopped reading the second sentence as a blanket approval of ex parte mechanic's lien attachments.
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