It is generally recognized by New Hampshire courts that “[f]ailure to comply with the specific statutory provisions of perfecting a mechanics lien is usually fatal,” Alex Builders & Sons, Inc. v. Danley, 161 N.H. 19, 23 (2010).  Yet one of those statutory provisions, RSA 447:8, is in my experience regularly ignored by subcontractors and suppliers to whom it applies.  It states:    “Any person giving notice as provided in RSA 447:5-7 shall, as often as once in 30 days, furnish to the owner, or person having charge of the property on which the lien is claimed, an account ..read more

On January 10, 2024, the U.S. Department of Labor issued its new rules on how to properly classify workers as either employees or independent contractors under the Fair Labor Standards Act.   The new rules are slated to go into effect on March 11, 2024, and reinstate the so-called “economic realities” test for determining whether a worker is in fact in business for himself.  According to DOL, the new rules “will help to ensure that workers who are employees are paid the minimum wage and overtime due to them, and that responsible employers that comply with the law are not pl ..read more

Many construction contracts and subcontracts, both residential and commercial, provide that any addition or deletion from the scope of work described in the contract must be documented by a written change order.   The purpose of these written change order requirements is obvious: to avoid disputes down the road over the existence of, extent of, or price and time effects of changes to the work.   In the press to get a project completed, contractors and their customers sometimes ignore such contract language, agreeing on a change but failing to get a written change order signed.&n ..read more

New Hampshire’s three-year statute of limitations for filing lawsuits, RSA 508:4, states “Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of . . .”  The phrase “personal actions” is not defined in the statute.  Does it encompass arbitration proceedings?   Neither the Federal Arbitration Act, 9 U.S.C. § 1 et seq., nor New Hampshire’s state arbitration act, RSA 542, mentions the statute of limitations.  The New Hampshire Supreme Court implicitly assumed applica ..read more

It happens this way: A contractor or subcontractor borrows money from a lender, and as security for the loan it gives the lender an assignment of or lien on its receivables and contract rights.  The borrower defaults, and the lender notifies everyone who may owe the borrower money of the lender’s rights to its customer’s receivables, demanding that any further payments owed to the borrower be remitted directly to the lender.   If the construction project is not yet complete, this puts the recipient of the notice in a quandary: paying the lender instead of the general contractor or su ..read more

For the first time in 40 years, the regulations implementing the prevailing wage requirements of the Davis-Bacon Act have been updated, effective October 23, 2023.  Contractors on federal and federally-funded projects need to be aware of the changes.   Davis-Bacon has long mandated that construction workers on these projects must be paid at least the locally prevailing wage and fringe benefits applicable to each classification of workers.  Contractors are required to maintain accurate records of hours worked and wages paid, including fringe benefit contributions, and submit cert ..read more

Subrogation – the right of an insurer, upon paying an injured party’s damages arising out of a negligence claim, to chase the negligent party for reimbursement – is a staple of the law.  “The doctrine of subrogation presupposes the payment of a debt by a party secondarily liable therefore, who thereby acquires an equitable right to be reimbursed by the principal debtor and for the purpose of making this right effective is invested with all the rights which the creditor had against him (the principal debtor).”  Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 26 (2007) (quotation omitte ..read more

Commercial construction subcontracts frequently incorporate by reference provisions of the prime contract between the owner and the general contractor, often with language requiring the subcontractor to assume toward the general contractor all duties owed by the general contractor to the owner.  (Article 2 of the popular AIA A401 (2017) is an example.)  Exactly what duties these “flow down” clauses embrace can be less clear than a casual reading might suggest.   Flow down clauses can limit a subcontractor’s remedies for breach by incorporating the prime contract’s restrictions ..read more

When commercial contractors request a progress payment or final payment, they typically must sign payment requisitions under oath, representing that the amount sought has been earned – and, inferentially, that all contractual prerequisites to payment have been satisfied.  For government contractors, there can be serious repercussions if those representations are knowingly false. The federal False Claims Act (FCA), 31 U.S.C. § 3729 et seq., imposes liability for knowingly making a false or fraudulent “claim,” or a false record or statement material to such a claim, in order to obtain fund ..read more

A couple of years ago I blogged (#101) on “pay-if-paid” clauses, which make a general contractor’s receipt of payment from the owner a prerequisite – a “condition precedent,” in legal terms – to its obligation to pay subcontractors.  The main purpose of such clauses is to shift the risk of owner nonpayment, whether due to owner insolvency or owner breach, from the contractor to the subcontractors.  But while pay-if-paid clauses can take various forms and include various qualifications, many such clauses are open-ended, not confined to any particular reason for the owner’s failure to ..read more