TITLE XLI
LIENS
Chapter 447-A
COMMERCIAL REAL ESTATE BROKER LIEN
Section 447-A:1
447-A:1 Definitions. –
In this chapter:
I. "Commercial real estate" means any real estate other than real estate containing one to 4 residential units.
II. "Principal broker" means the individual broker, including the broker designated by a corporation, partnership or association, whom the New Hampshire real estate commission holds responsible for the action of licensees who are assigned to such individual broker.
III. "Real estate" means and includes leaseholds or any other interests or estates in land and business opportunities which involve any interest in real estate. It also includes the sale and resale of time-share developments and manufactured housing parks.
Source. 2002, 144:1, eff. July 12, 2002.
Section 447-A:2
447-A:2 Principal Broker's Lien. –
If a principal broker is entitled to a fee, commission, or property management fee pursuant to a written contract signed by the owner, buyer, or tenant of commercial real estate, or the owner's, buyer's, or tenant's duly authorized agent, pertaining to the sale or lease of said commercial real estate, then the principal broker shall have the right to record a notice of lien in the amount of the fee, commission, or property management fee.
Source. 2002, 144:1, eff. July 12, 2002.
Section 447-A:3
447-A:3 How Secured. –
Any principal broker's notice of lien shall be recorded at the registry of deeds in the county where the property is located. In the case of a sale, where the principal broker claims a fee or commission against the seller, the notice of lien shall be recorded prior to the recording of the deed conveying or transferring title to the commercial real estate from seller to purchaser. If the commission is payable by the purchaser, the notice of lien shall be recorded within 90 days of the recording of the deed conveying title to the property, but must be recorded prior to the recording of a deed conveying that purchaser's title to the property to a bona fide purchaser for value.
Source. 2002, 144:1, eff. July 12, 2002.
Section 447-A:4
447-A:4 Attachment. –
The notice of lien under this chapter shall attach to the commercial real estate or any interest in the commercial real estate upon:
I. The principal broker being otherwise entitled to a fee or commission under a written instrument signed by the duly authorized owner, buyer, tenant or his or her respective agent, as applicable; and
II. Except as provided in paragraphs III-VI, the principal broker recording a notice of lien in the registry of deeds of the county in which the real property or any interest in the real property is located, prior to the actual conveyance or transfer of legal title to the commercial real estate against which the principal broker is claiming a lien by the party from which the principal broker claims its fee.
III. Except as provided in paragraphs IV-VI, when payment to a principal broker is due in installments, a portion of which is due after the conveyance or transfer of the commercial real estate, any notice of lien for those payments due after the transfer or conveyance may be recorded at any time which is subsequent to the transfer or conveyance of the commercial real estate and which time is within 90 days of the date on which the payment is due. However, such notice of lien shall only be effective as a notice of lien against the transferor's interest in the commercial real estate to the extent moneys are still owed to the transferor by the transferee. A single notice of lien recorded prior to transfer or conveyance of the commercial real estate claiming all moneys due under an installment payment agreement shall be valid and enforceable as it pertains to payments due after the transfer or conveyance; provided, however, that as payments or partial payments of commission are received, the principal broker shall provide partial releases therefor, thereby reducing the amount due the principal broker under its notice of lien.
IV. In the case of a lease, including a sublease or assignment of lease, the notice of lien shall be recorded not later than 90 days after the tenant takes possession of the leased premises.
V. If a principal broker may be due future commissions pursuant to a written agreement signed by the then owner, buyer, or tenant either as a result of future actions, including but not limited to the exercise of an option or other right to expand the leased premises, renew or extend a lease, or purchase the property, or otherwise, the principal broker may record its notice of lien at any time after execution of the lease or other written instrument which contains such an option, but not later than 90 days after the event or occurrence on which the future commission is claimed occurs. Notwithstanding paragraph VIII, an action to enforce a lien to collect future commissions shall be commenced within 2 years of the occurrence or transaction on which the future commission is claimed.
VI. In the event that the property is sold or otherwise conveyed prior to the date on which a future commission is due, if the principal broker has filed a valid notice of lien prior to the sale or other conveyance of the property, then the purchaser or transferee shall be deemed to have notice of and shall take title to the property subject to the notice of lien; provided, however, that if a principal broker claiming a future commission fails to record its notice of lien for future commission prior to the recording of a deed conveying legal title to the property to the purchaser or transferee, then such principal broker may not claim a lien on the property. The provisions of this paragraph shall not limit or otherwise affect claims or defenses a principal broker, owner, or any other party may have on any other basis, in law or in equity.
VII. If a principal broker has a written agreement with a prospective buyer or tenant as described in RSA 447-A:2, then the notice of lien shall attach upon both the prospective buyer or tenant purchasing or leasing or otherwise accepting a conveyance or transfer of the commercial real estate or an interest therein and the recording of a notice of lien by the principal broker in the registry of deeds of the county in which the real property is located, within 90 days after the purchase or other conveyance or transfer to the buyer or tenant.
VIII. The principal broker shall, within 10 days of recording its notice of lien, either mail a copy of the notice of lien to the owner of record on the commercial real estate by registered or certified mail, return receipt requested, or the agent of the owner of record at the address of the owner stated in the written instrument on which the notice of lien is based, or if no such address is given, then to the address of the property on which the notice of lien is based. If the notice of lien is recorded within 10 days prior to closing, the principal broker is not required to mail a copy of the notice of lien. Mailing of the copy of the notice of lien is effective when deposited in the United States mailbox with postage prepaid. The broker's lien shall be unenforceable if mailing or service of the copy of notice of lien does not occur at the time and in the manner required by this paragraph.
IX. (a) A principal broker may bring suit to enforce a lien in the superior court in the county where the property is located by filing a writ and sworn affidavit that the notice of lien has been recorded.
(b) The principal broker claiming a lien shall, within 2 years after recording the notice of lien, commence proceedings by filing a writ. Failure to commence proceedings as required herein within 2 years after recording the notice of lien shall extinguish the lien. No subsequent notice of lien may be given for the same claim nor may that claim be asserted in any proceedings under this chapter.
(c) If a notice of lien has been recorded against commercial real estate, then either the owner or the authorized agent of the owner of the commercial real estate or the interest therein against which the notice of lien is asserted, may serve a written demand upon the principal broker by certified mail, return receipt requested. This demand may require the principal broker to file a writ and commence litigation based on the notice of lien within 30 days of the principal broker's receipt of the demand. If the principal broker fails to file a writ and commence litigation based on the notice of lien within this 30-day period, then the notice of lien shall be deemed extinguished as a matter of law. In the event the notice of lien and the principal broker's rights under the notice lien are extinguished in the manner described in this paragraph, this shall not have any effect on any other rights of the principal broker to claim the commission in law or in equity.
(d) A principal broker claiming a lien based upon an option or other right to purchase or lease shall, within 2 years after the transfer or conveyance of the commercial real estate under the exercise of the option to purchase or lease, commence proceedings by filing a writ. Failure to commence proceedings within this time shall extinguish the lien. No subsequent notice of lien may be given for the same claim nor may that claim be asserted in any proceedings under this chapter.
(e) A writ under this section shall contain a brief statement of the contract or instrument on which the notice of lien is founded, the date when the contract or instrument was made, a description of the services performed, the amount due and unpaid, a description of the property that is subject to the claimed lien, and other facts necessary for a full understanding of the rights of the parties. The plaintiff shall make all interested parties, of whose interest the plaintiff is notified or has knowledge, defendants to the action, and shall issue summons and provide service as in other civil actions. When any defendant resides or has gone out of the state, or on inquiry cannot be found, or is concealed within the state so that process cannot be served on that defendant, the plaintiff shall cause a notice by publication in a newspaper of statewide publication. Failure of the plaintiff to provide proper summons or notice shall be grounds for judgment against the plaintiff and in favor of the defendant who is not properly served with summons or notice with prejudice.
X. The notice of lien shall state the name of the claimant, the name of the owner, a legal description of the property upon which the lien is being claimed, the amount for which the lien is claimed, and the real estate broker's license number of the broker. The notice of lien shall recite that the information contained in the notice is true and accurate to the knowledge of the signator. The notice of lien shall be signed by the broker or by a person authorized to sign on behalf of the principal broker and shall be verified under oath.
XI. Whenever a notice of lien has been filed in the registry of deeds and a condition occurs that would preclude the broker from receiving compensation under the terms of the written agreement on which the notice of lien is based, the principal broker shall provide to the owner of record, within 10 days following written demand by the owner of record, a recorded written release or satisfaction of the notice of lien.
XII. If the principal broker and the party or parties from whom the commission is claimed agree to alternative dispute resolution ("ADR"), the claim shall be heard and resolved in the forum on which these parties have agreed. The court before which the legal proceeding is brought shall retain jurisdiction to enter judgment on the award or other result made or reached on ADR on all parties to the foreclosure. The broker's notice of lien shall remain of record and the legal proceeding shall be stayed during the pendency of the ADR process.
XIII. The cost of proceedings brought under this chapter including reasonable attorneys' fees, costs, and prejudgment interest due to the prevailing party shall be borne by the non-prevailing party. When more than one party is responsible for costs, fees, and prejudgment interest, the costs, fees, and prejudgment interest shall be equitably apportioned by the court or ADR tribunal among those responsible parties.
XIV. Except for a waiver or release of lien provided in consideration of payment of the fee claimed by the broker, any waiver of a principal broker's right to lien commercial property under this statute, any other waiver or release of lien shall be void.
Source. 2002, 144:1, eff. July 12, 2002.
Section 447-A:5
447-A:5 Priority. –
Notwithstanding any other provision of law, no principal broker's lien shall be valid until the date of its recording in the registry of deeds in which the real estate against the lien is sought is located, even if the right to such lien arose prior to the date of such recording. Valid prior recorded liens, valid prior recorded mortgages, valid prior recorded encumbrances, and all other valid prior recorded interests of any sort or nature whatsoever shall have priority over a principal broker's lien. In no event shall the priority of a recorded principal broker's lien be deemed to relate back to a time and date prior to the actual time and date of recording of such principal broker's lien, even if the right to such lien arose at a prior time and date. Prior recorded liens, liens for ad valorem taxes, mortgages, encumbrances, and other similar interests that have priority over a principal broker's lien shall include, without limitation:
I. A mechanic's lien claim that is recorded subsequent to the principal broker's notice of lien but which relates back to a date prior to the recording date of the principal broker's notice of lien.
II. Prior recorded mortgages of all types, including prior recorded mortgages that secure lines of credit, including without limitation revolving credit lines or future advances, or both.
III. Prior recorded construction mortgages securing construction loans.
IV. Prior recorded UCC financing statements.
V. UCC financing statements recorded after the date of the recording of the principal broker's lien if such UCC financing statements would be entitled to priority over prior recorded UCC financing statements under RSA 382-A.
VI. Prior recorded leases or notices of lease, or both.
VII. Any and all prior recorded liens, encumbrances, or other interests in real estate of any sort or nature.
Source. 2002, 144:1, eff. July 12, 2002.
Section 447-A:6
447-A:6 Escrow of Disputed Amounts. –
I. Whenever a notice of lien securing a principal broker's lien has been filed with the registry of deeds, an escrow account may be established from the proceeds of the sale of the commercial real estate in an amount equal to the amount of the notice of lien. The option to establish an escrow account, as provided for in this section, shall not be cause for any party to the real estate transaction to refuse to close the sale of the commercial real estate. The escrowed funds shall be held in escrow until the parties' rights to the escrowed moneys have been determined by written agreement of the parties, by a court of law, or by any other process as may be agreed to by the parties for resolution of their dispute. Upon the escrow of funds in the amount of the claimed lien, the lien or claim of lien shall be automatically dissolved, and a release of the notice of lien shall be provided by the principal broker and recorded forthwith at the registry of deeds in the county where the real estate is located. Once the principal broker has provided the release, the principal broker who has claimed a notice of lien and provided such release shall have an equitable lien on the funds which were or shall be held in escrow.
II. The parties are not required to follow this escrow procedure if alternative procedures which would allow the transaction to close are available and are acceptable to the transferee, the transferor, and the principal broker in the transaction. If the proceeds from the transaction are insufficient to release all liens claimed against the commercial real estate, including the principal broker's notice of lien, then the parties are not required to follow this escrow procedure.
Source. 2002, 144:1, eff. July 12, 2002.
Section 447-A:7
447-A:7 Discharge of Lien. –
I. Except as provided in RSA 447-A:6, when the lien of a principal broker is satisfied, the principal broker shall cause a discharge of the lien to be recorded within 10 days after such lien is satisfied in the registry of deeds of the county in which the commercial real estate is located.
II. If a principal broker fails to provide a release of the lien within 60 days from receipt of payment of the lien in accordance with the payoff statement furnished to the owner by the principal broker, an attorney licensed to practice in the state of New Hampshire, may, on behalf of the owner of the commercial real estate or interest therein which is subject to the principal broker's notice of lien, or the owner's executor, administrator, assignee, transferee, or other successor in title, execute and cause to be recorded in the registry of deeds in which the notice of lien is recorded, an affidavit which states that:
(a) The affiant is an attorney in good standing and licensed to practice in the state of New Hampshire.
(b) The affidavit is made on behalf of, and at the request of the owner, or the owner's executor, administrator, assignee, transferee, or other successor in title.
(c) The principal broker has provided a payoff statement with respect to the lien secured by the notice of lien.
(d) The affiant has ascertained that the principal broker has received payment of the lien secured by the notice of lien in accordance with the payoff statement, as evidenced by a bank check, certified check, or attorney's clients' funds account check which has been negotiated by the principal broker and bears no indication of a stop payment order or return for insufficient funds, or by other equivalent documentary evidence of such receipt of payment by the principal broker.
(e) More than 60 days have elapsed since such payment was received by the principal broker.
(f) The affiant has given the principal broker at least 15 days notice in writing by certified mail, return receipt requested sent to the principal broker's last known address, of intention to execute and cause to be recorded an affidavit in accordance with this section, together with a copy of the proposed affidavit; and the principal broker has not delivered a release of lien in response to such notification and the owner has complied with any request made by the principal broker for additional payment at least 15 days prior to the date of the affidavit.
III. The affidavit shall include the names and addresses of both the owner and the principal broker, the date of the notice of lien, and the title reference.
IV. The affiant shall attach to the affidavit the following, certifying that each is a true copy of the original document:
(a) Photostatic copies of the documentary evidence that payment has been received by the principal broker, including the principal broker's endorsement of any bank check, certified check, or attorney's clients' funds account check; and
(b) A photostatic copy of the payoff statement.
V. The affidavit when recorded, shall constitute a discharge of the notice of lien and a release of the lien created by the notice of lien on the premises.
VI. Any person who causes an affidavit to be recorded in accordance with this section, knowing the information and statements contained in the affidavit to be false, shall be guilty of false swearing pursuant to RSA 641:2.
VII. In this section, the term "payoff statement" means a written statement of the amount of the unpaid balance on the lien, including principal, interest, and other charges properly assessed pursuant to the principal broker's claim for notice of lien.
Source. 2002, 144:1, eff. July 12, 2002.