New Hampshire Caps the Condo Super-Lien at Six Months

Perfection is the first limit and it is short. RSA 356-B:46, III requires the unit owners' association to file, before the expiration of 6 months from the time the assessment became due and payable, a memorandum in the registry of deeds of the county where the condominium sits, verified by the oath of the principal officer or such other officer as the condominium instruments specify. The memorandum must contain a description of the unit under RSA 356-B:9, the names of the unit owners, the amount of unpaid assessments currently due or past due with the date each fell due, and the date of issuance. RSA 356-B:46, II requires the memorandum to be recorded in every county in which any part of the condominium lies and indexed in the general index to deeds identifying it as a lien for condominium assessments. Miss the 6-month window and there is no perfected lien to enforce.

Priority is the second limit. Once perfected the lien is prior to all other liens and encumbrances except three things named in RSA 356-B:46, I(a): real estate tax liens on that unit, liens and encumbrances recorded before the declaration was recorded, and sums unpaid on any first mortgages or first deeds of trust securing institutional lenders. Subparagraph (b) preserves the priority of mechanics' and materialmen's liens on top of that.

The super-priority in subparagraph (c) is where New Hampshire is unusually demanding. It reaches only the regular monthly common assessments unpaid during the 6-month period immediately preceding the filing of the memorandum, plus costs of collection including reasonable attorney's fees. Two notices are conditions, not formalities. Within 70 days of the occurrence of any delinquency the association must send the unit owner and the institutional lender holding the first mortgage written notice, by certified mail and first class mail, that the account is at least 60 days delinquent. Separately, at least 30 days before filing the memorandum, it must give the lender notice by certified mail and first class mail of its intent to file. The association may rely on the registry of deeds for the lender's address unless the lender has notified it of a different one by certified mail. Subparagraph (d) adds two further caps: the association may not assert more than one priority lien unless and until the existing priority lien is discharged, and the super-priority does not apply to any mortgage executed before the effective date of the section, which is January 1, 2011 under 2010, 142:1.

Enforcement carries its own ceilings. RSA 356-B:46, IV bars any suit to enforce a perfected lien after 6 years from the recording of the memorandum, with the filing of a petition to enforce treated as institution of a suit and with no extension of the time to perfect. RSA 356-B:46, V requires the judgment or decree to include reimbursement for costs and attorneys' fees together with interest at the maximum lawful rate from the time the sum became due. RSA 356-B:46, VII preserves an ordinary action at law under RSA 356-B:15 alongside the lien. Nothing in RSA 356-B:46 grants a power of sale, so a Condominium Act lien is enforced through a court.

The older act works the other way round. RSA 479-A, the Unit Ownership of Real Property Act, still governs real estate submitted to it before September 10, 1977, because RSA 356-B:2, I says the Condominium Act supersedes RSA 479-A prospectively, bars any new condominium under RSA 479-A on or after that date, and is not deemed to apply to property already submitted to RSA 479-A except for the timesharing and 10-or-more-added-units cases in paragraphs II and III. For those older projects RSA 479-A:22 gives the assessment lien priority over everything except tax liens and all sums unpaid on a first mortgage of record, with no 6-month super-priority at all, and then says the lien "may be foreclosed by the manager or board of directors, acting on behalf of the unit owners, in like manner as a mortgage of real property." That pulls in the mortgage foreclosure machinery of RSA 479, including the power-of-sale requirements of RSA 479:25: publication once a week for 3 successive weeks with the first publication not less than 20 days before the sale, notice to the mortgagor at least 25 days before the sale and at least 45 days for a residential mortgage, and the statutory paragraph telling the owner of the right to petition the superior court to enjoin the sale. RSA 479-A:22 also entitles the plaintiff to a receiver to collect a reasonable rental if the bylaws so provide, lets the board bid in the unit at the sale unless the declaration forbids it, and wipes pre-acquisition assessments off a first mortgagee who takes title at its own foreclosure, turning them into a common expense collectible from every other owner.

Outside condominiums, New Hampshire has no association lien statute. The only provision in the Revised Statutes Annotated that names homeowners' associations, RSA 292:8-m, sits in the voluntary corporations chapter and does two narrow things: it requires a 2/3 majority to amend bylaws, budgets or a contracted property management service where one person acquires more than 50 percent of the votes after developer control ends, and it bars dissolution under RSA 292:9 or RSA 292:10-a before a hearing under RSA 676:2 in front of the planning board that approved the association. It says nothing about assessments, liens or foreclosure. A New Hampshire subdivision homeowners association therefore collects on whatever lien its recorded declaration creates, enforced as a contract or covenant claim, with none of the perfection deadlines, priority rules or super-priority of RSA 356-B:46 behind it.

A New Hampshire condominium owner who falls behind faces an escalating sequence rather than an immediate foreclosure. RSA 356-B:46, IX lets the association, if the members have authorised the board to do it, terminate the delinquent unit's common privileges and cease supplying services normally supplied or paid for by the association, after 30 days' prior written notice to both the owner and the first mortgagee, with everything restored on payment. RSA 356-B:46-a is the rent remedy: 60 days after a common expense assessment falls due, the association may collect rent from a tenant of the unit, after written notice by both first class and certified mail stating the exact amount claimed, and the owner then has 30 days from mailing to pay or to prove prior payment.

Paragraph II of that section bars an owner from withholding or offsetting assessments without first obtaining a court determination that the assessment was unlawful, and paragraph IV voids any lease waiver of the section and protects the paying tenant from retaliation and from default. The association must have adopted RSA 356-B:46-a into its declaration or bylaws by a majority vote of those attending an annual meeting. On the lien itself, the sharpest sanction runs against the association: under RSA 356-B:46, VIII, failure to furnish or make available a recordable statement of unpaid assessments within 10 business days of a written request from an owner or purchaser under contract extinguishes the lien as to that unit, and the association may charge no more than $10 for the statement.