Given the close geographic proximity of Maine and New Hampshire, it is easy to assume that mechanic’s lien rights function similarly across state lines. However, key statutory differences—particularly when work is performed for a tenant rather than the property owner—can dramatically affect whether a contractor can lien the property owner’s interest in the subject property.
This case study illustrates how similar construction projects may lead to dramatically different lien rights depending on the state in which the work occurs.
Background: Statutory foundations
A mechanic’s lien is a statutory right that allows contractors, subcontractors, and suppliers to place a claim on real property to secure payment for work performed or materials furnished. These rights exist only because state statutes create them, and the scope of the lien depends entirely on the language of each state’s law.
When contracting directly with the property owner, determining what interest a mechanic’s lien may encumber is relatively straightforward. It becomes more complicated when work is performed on behalf of a lessee instead of the property owner, particularly when a contractor seeks to perfect its lien against the landlord’s ownership interest. Maine and New Hampshire diverge sharply on whether, and under what circumstances, a tenant’s contract may support a lien against the landlord’s interest.
Maine: Owner consent matters
Maine’s mechanic’s lien statute, 10 M.R.S.A. § 3251, creates a lien when labor or materials are furnished… by virtue of a contract with or by consent of the owner. The “by consent” language is critical.
In other words, a mechanic’s lien in Maine may arise either:
- by direct contract with the landlord; or,
- by the landlord’s consent to work arranged by the lessee.
The Maine Supreme Court has held that a lien may attach to the building owner’s interest when the building owner consents to improvement contracted for and arranged by the tenant (see Fischbach & Moore, Inc. v. Presteel Corp., 398 A.2d 397, 400-01 (Me. 1979)). Ordinarily, a mechanic’s lien can only attach to the interest that the contracting party has in the property (see Lyon v. Dunn, 402 A.2d 461, 463 (Me. 1979)), unless the work was performed with the property owner’s consent.
Therefore, a contractor working for a tenant can reach the landlord’s ownership interest so long as the landlord consented to the work. This makes Maine relatively favorable to contractors working on leased premises.
New Hampshire: Liens limited to the contracting owner’s interest
New Hampshire’s lien statute, RSA 447.2, takes a narrower approach. It does not, by contrast, create a lien against the landlord’s fee interest merely because the landlord had knowledge of or consented to the work.
RSA 447:2 provides: “If any person shall perform labor, provide professional design services, or furnish materials . . . , by virtue of a contract with the owner thereof, he or she shall have a lien on any material so furnished and on said structure, and on any right of the owner to the lot of land on which it stands.”
RSA 447:2 creates a lien only on:
- the materials furnished;
- the structure; and
- any interest held by the contracting “owner” to the lot of land.
New Hampshire courts have interpreted this language strictly. The statute limits the mechanic’s lien to any interest in the land held by the project “owner.” (see Dandero Bros. Gen. Contractors & Masonry, LLC v. CMAB Assocs. II, LLC, No. 218-2018-CV-00653, at * 5 (Rockingham Super. Ct. Jan. 10, 2019 (Schulman, J.)). Under New Hampshire’s mechanic’s lien statute, when a contractor contracts with a tenant, the lien encumbers only the leasehold interest, not the landlord’s interest.
This is a critical difference. The absence of the “with or by consent”language has the effect of precluding a lien on the owner’s fee interest absent some other facts establishing an agency relationship or circumstances showing that the lessee was acting on the landlord’s behalf or for the benefit of the owner.
In other words, a landlord’s consent or awareness of tenant improvements is not enough to create a lien on the landlord’s property interest. Contractors must take care to identify the exact estate held by the project “owner” so they do not attempt to perfect a lien against an interest for which there are no lien rights.1
Practical takeaways
The contrast between Maine and New Hampshire highlights the importance of understanding exactly who owns what interest in a project. Contractors working on leased property should:
- Confirm whether they are contracting with the fee owner or a tenant.
- Review the lease and related documents, if possible.
- Understand whether the landlord has provided meaningful consent (in Maine) or whether additional facts are needed to support a broader lien claim (in New Hampshire).
Assuming that the law works the same on both sides of the border can lead to serious missteps.
Conclusion
Maine and New Hampshire diverge significantly on how mechanic’s lien rights operate on leased property. In Maine, a landlord’s consent can allow a contractor to reach the landlord’s ownership interest. In New Hampshire, strict statutory language confines liens to the interest of the contracting owner, typically limiting the lien to the tenant’s leasehold.
For contractors and counsel alike, understanding these distinctions is essential for preserving lien rights in projects involving leased property and for avoiding the filing of an unenforceable lien.
1Courts with similar mechanic’s lien statutes to New Hampshire, have rejected liens against the landlord’s interest based solely on the landlord’s knowledge or passive approval. See:
- Hall v. Peacock Fixture & Elec. Co., 475 A.2d 1000, 1102 (Conn. 1984) (discharging a mechanic’s lien on the landlord’s fee simple interest and holding the mere granting of permission for work to be conducted on one’s property is insufficient to support a mechanic’s lien against the fee simple interest);
- Nunley Contracting Co. v. Fourt Taylors, 384 S.E.2d 216, 217 (Ga. App. 1989) (holding that although lessor participated in arranging financing of the project, it shows no more than approval of the construction project);
- Ringland-Johnson-Crowley Co. v. First Cent. Serv. Corp., 255 N.W.2d 149, 151 (Iowa 1977) (“Ordinarily, mere knowledge of or consent to the making of improvements by a lessee does not subject the interest of lessor to a mechanic’s lien.” (quotation marks omitted)).
Bernstein Shur’s Construction Group helps developers, contractors, and construction professionals manage risk and keep projects on track at every stage of the project lifecycle. The group provides sophisticated legal solutions spanning contract negotiation, project administration, dispute avoidance, and litigation, drawing on deep experience in the construction industry. Maggie Shields is a construction and commercial litigation attorney who advises owners, developers, and contractors on contract drafting and negotiation, risk mitigation, and dispute resolution, representing clients in litigation and alternative dispute proceedings with a practical, detail-oriented approach focused on efficient outcomes. She can be reached at [email protected].