A commercial tenant signs a long term lease with a landlord. The lease expressly contemplates that the tenant may make improvements to the property. Maybe it says the improvements become the property of the landlord at the end of the lease term, maybe it says the tenant must restore the property to its pre-lease condition at the end of the lease term, and maybe it's just silent on the issue. Say the tenant hires you to build out the fit-up, and doesn't pay you. A mechanic's lien against the tenant's leasehold interest, while theoretically possible, isn't much help (a sheriff's sale of the leasehold won't fetch many interested bidders if, as is usually the case, the landlord has reserved the right to approve any new tenant -- and won't fetch any at all if the rent is at market rate and other space is available). Can you lien the landlord's property as well?
The New Hampshire Supreme Court has yet to answer this question. Other states take varying approaches. Some (California, Illinois) allow the lien as long as the landlord knew of the improvements and didn't object; others (Florida, Massachusetts, New York) require proof of the landlord's express consent to the improvements; still others (Michigan, Missouri, Tennessee) allow the lien only if the tenant was acting as the landlord's agent. A few states (Georgia, Ohio, Texas) disallow the lien unless the owner was a party to the construction contract. Some of these differences track differing language in the applicable statutes. For instance, Massachusetts lien law gives lien rights to "A person entering into a written contract with the owner of any interest in real property, or with any person acting for, on behalf of, or with the consent of the owner . . ."
New Hampshire's statute is not so generous, and requires that the debt arise "by virtue of a contract with an agent, contractor or subcontractor of the owner" (RSA 447:5). Agency can be express or implied. It is safe to say that many factors (is the tenant required or merely allowed to make improvements? does the lease give the landlord the right to approve any plans? does the landlord benefit from the improvements? is the cost of the improvements borne by the landlord through offsets in rent?) may play into whether a tenant is acting as agent for the landlord. The underlying concern is generally one of fairness to the landlord.
The balance was struck in favor of the landlord in I.B.E.W. Local 490 v. Maureen Electrical, Inc., Merrimack County Superior Court No. 2012-CV-684 (Jan. 16, 2013), a case involving a lien asserted against the owner of the Merrimack Premium Outlets. The leases required all tenant fit-up work to be approved by the landlord after submission of plans and specs; required the landlord's approval of the contractors implementing them; and provided that with one exception (track lighting) "all tenant improvements shall become the property of Landlord when installed." Nevertheless, the Court concluded that the landlord received little benefit from the improvements contracted for by its tenants, and rejected the argument that the tenants were acting as agents of the landlord in constructing improvements, based on three factors: "The improvements will not become the property of the lessor until the end of the lease, in 10 years. The alterations, while substantial and permanent, are not beneficial, but are actually a cost because a new tenant will want to fit up the space it rents for itself. Finally, there is no evidence the rental payments reflect any increased value of the property as a result of the improvements."
The lesson here is that a contractor considering doing a tenant fit-up should always ask to see the lease and verify that the landlord both allows the improvements and owns them once they are made. Even that is not enough to ensure lienability of the landlord's interest -- but it is a safe bet that without them lienability will not be found.
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