#60:  Getting a Mechanic’s Lien Attachment Without Giving Advance Notice

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, one that implements constitutional due process requirements, 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.” Despite this, mechanic’s lien attachments are routinely granted on an “ex parte” basis, i.e., without advance notice to the defendant.
When there is a need for speed and all will be lost if the claimant must await notice and a hearing, RSA 511-A:8 comes to the rescue: “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 (the one filed by the would-be lienor in which the attachment is being sought). But our Supreme Court made clear in Topjian Plumbing and Heating, Inc. v. Bruce Topjian, Inc., 129 N.H. 481, 484 (1987), 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 a 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”). Recording a lis pendens eliminates 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.
As the Topjian case makes clear, court approval is still required for a mechanic's lien attachment. But RSA 511-A:8,III provides no authority for getting it on an ex parte basis. The better bet is RSA 511-A:8,V, which authorizes ex parte attachments “when other exceptional circumstances are established to the satisfaction of the court” – which may be the case with mechanic’s liens that are reaching the end of their 120-day pre-attachment existence under RSA 447:9.
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