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American College of Mortgage Attorneys — Partner with the Best®

Formed in 1974, the American College of Mortgage Attorneys (ACMA) is comprised of over 500 lawyers in North America who are experts in mortgage law.

United States

New Hampshire

SECURITY INSTRUMENT USED

The following are required: (i)&nbsp;notary acknowledgment; (ii)&nbsp;mortgagee's latest mailing address; (iii)&nbsp;in the first sentence of the first description paragraph, the names of all municipalities in which the mortgaged property is located, and (iv)&nbsp;the name of each person executing the mortgage printed or typewritten under the signature. See NH RSA &sect;&nbsp;478:4-a. In addition to the statutory requirements listed above, the New Hampshire registrars of deeds have adopted document standards, including the following: the first recorded page must have a minimum 3” margin at the top, all other margins must be a minimum of 1”; paper must be white, 20 pounds, and without watermarks; the text must be clean, sharp, and black; signatures must be executed in dark black or dark blue ink; seals must be impressed firmly and clearly; justice & notary expirations must be legibly reproduced in black ink; a justice's name must be legibly reproduced under the signature; original documents and signatures are required, but if original documents are on record with another government agency a certified copy may be accepted; no foreign objects may be attached to any pages; no continuous forms or bound sheets are accepted; paper size shall not exceed legal size (8&frac12;” x 14”); single-sided pages only; minimum font size is 10 point in Times New Roman. Pursuant to NH RSA &sect;&nbsp;478:17-g:II, in addition to standard recording fees, the recordation of each deed, mortgage, mortgage discharge, or plan (but excluding any other kind of document to be recorded) requires an additional charge of $25 per document, to be paid by the grantee in a deed, the grantor in a mortgage, the person or entity discharging a mortgage in the case of a discharge, or the primary owner of property shown on a plan (the fee is not assessed on documents in which the United States or any instrumentality thereof, the State of New Hampshire, a state agency, a county, a municipality, a village district, or a school district is a party).

RECORDING REQUIREMENTS

Borrower waives all right of homestead in the property (NH RSA &sect;&nbsp;480:1.

STATUTES TO BE WAIVED

UNUSUAL TREATMENT OF STANDARD PROVISIONS

Subject to the provisions of NH RSA &sect;&nbsp;447:12-a, Liens for Labor and Materials, a recorded mortgage takes priority as of the date of its recording as to advances or obligations thereafter made or incurred that do not exceed the maximum amount stated in the mortgage except that interest, late charges, and foreclosure costs may be collected even if they exceed the face amount of the mortgage. NH RSA &sect; 479:3; Leroux v. Bank of New Hampshire, 567 A.2d 561 (N.H. 1989).

SECURING FUTURE ADVANCES

A mortgage may secure additional advances to protect collateral if so specified in the mortgage, and subject to foregoing comment on priority as to advances.

SECURING ADDITIONAL ADVANCES TO PROTECT THE COLLATERAL, INCLUDING PAYMENT OF TAXES AND INSURANCE

Mortgagee may foreclose through (i)&nbsp;entry under process, (ii)&nbsp;entry and publication, (iii)&nbsp;possession and publication, (iv)&nbsp;decree for sale, or (v)&nbsp;sale under statutory power of sale. The latter is the most common manner of foreclosure. Under statutory power of sale, notice of foreclosure sale shall be published once a week for 3 successive weeks in a newspaper with general circulation in the town or county in which property is situated. The first publication shall not be less than 20 days before the date of sale, calculated by excluding the date of publication of the first notice and date of sale. A copy of the notice must be served on the mortgagor or sent by registered or certified mail to his or her last known address or to such person as may be agreed upon in the mortgage at least 25 days before the sale, or in the case of a residential mortgage, at least 45 days before the sale. A copy of the notice must be sent to any person having a lien of record on the mortgaged premises at least 21 days before the sale, provided that the lien is recorded at least 30 days, or in the case of a residential mortgage, at least 50 days, before the date of the sale in the registry of deeds. Some special language is required in the notice. The foreclosure deed, notice of sale, and affidavit of sale must be recorded within 60 days of the sale date; failure to do so renders the sale void. Title passes to the purchaser upon recording of the deed and affidavit. If a mortgagee fails to discharge a mortgage within 60 days of payoff, mortgagor may file a “Discharge by Affidavit”. NH RSA &sect;&nbsp;479:7-a. The mortgagor may record an affidavit in the registry of deeds swearing that the mortgage was paid off. A properly recorded affidavit will serve to discharge the mortgage. The mortgagor may execute the affidavit. In addition, the statute provides for a penalty if lender fails to discharge a mortgage within 60 days of payoff. The penalty provides for damages to the mortgagor of $200/week after the 60-day deadline, up to a maximum of $2,500, or “in an amount equal to the loss sustained as a result of the failure of the mortgagee to execute and deliver a release, whichever is greater, plus costs and reasonable attorney's fees.” RSA &sect;&nbsp;479:8.

BRIEF DESCRIPTION OF PROCEDURE

60 days under power-of-sale process. Entry under process or with publication, or possession and publication, require mortgagee possession of the mortgaged premises for a minimum of 1 year.

TYPICAL LENGTH OF PROCEDURE

FORECLOSURE BID REQUIREMENTS

Before foreclosure by payment of all demands and the performance of all things secured by mortgage and the payment of all damages and costs sustained and incurred by reason of the non-performance of mortgage conditions or by a legal tender thereof before foreclosure.

REDEMPTION PERIOD AND PRICE

WAIVER OF REDEMPTION; REDUCTION OF REDEMPTION PERIOD

The holder of the note secured by a mortgage may bring an action, including a deficiency action, upon the note within 20 years from the date of default under the note or mortgage provided that the note holder is entitled to bring an action upon the mortgage, i.e.&nbsp;provided that the mortgagee has not terminated or discharged the mortgage. When the covenants of the mortgage given to secure a note remain undischarged, the obligor is deemed to have waived the right to plead the standard 3-year statute of limitations for 20 years. If the mortgage is terminated or discharged, the noteholder may bring a deficiency action on the note within the 3-year statute of limitations. The deficiency action may include the full amount of the deficiency plus interest, costs, and attorney fees if provided for in the note or mortgage.

DEFICIENCIES

Foreclosure terminates all leases not recorded prior in time to the mortgage.

EFFECT OF FORECLOSURE UPON LEASES

CASE LAW

There is no general usury restriction.

USURY CEILING

USURY EXEMPTIONS

If New Hampshire law governs the perfection of the security interest, then for personal property in which a security interest is perfected by filing, filing with the New Hampshire Secretary of State for personal property, and filing with the county registry of deeds for interests in as-extracted collateral or timber to be cut, or if the financing statement is filed as a fixture filing and the collateral is goods that are or are to become fixtures; provided that if the debtor is a transmitting utility, filing with the New Hampshire Secretary of State for collateral, including fixtures, is required.

LOCATION FOR FILING

A copy of the security agreement is sufficient as a fixture financing statement if it contains the information currently required under NH&nbsp;RSA &sect;&nbsp;382-A:9-502(a) (provides the name of the debtor, gives the name of the secured party or a representative of the secured party, and indicates the collateral covered by the financing statement), indicates that it covers fixtures; and that it is to be filed in the real property records, and provides a description of the real property to which the collateral is related, and the name of the record owner of the real property if the debtor does not have an interest of record in the real property.

SECURITY INSTRUMENT AS FIXTURE FILING

Under NH&nbsp;RSA &sect;&nbsp;399-B:2, a lender is required to give the borrower and the guarantor a notice of finance charges.

UNUSUAL PROVISIONS OR REQUIREMENTS

None other than standard equitable remedies.

SPECIAL PROBLEMS IN ENFORCEMENT OF GUARANTY

Personal actions - generally 3 years; an action on a mortgage note may be brought so long as the noteholder is entitled to bring an action on the mortgage. No action on recovery of real estate shall be brought after 20 years from the time the right to recover first accrued.

STATUTE OF LIMITATION PERIOD

Recorded discharge or release that is executed and witnessed or acknowledged.

REQUIREMENTS FOR RELEASE OF LIEN

HOMESTEAD ISSUES

New Hampshire is not a community property state.

COMMUNITY PROPERTY

MORTGAGE TAX

DOCUMENTARY STAMP TAX

Presently $1.50 per $100 of price or consideration, shared equally between transferor and transferee. On Foreclosure Sale: Based on the sale price plus any obligations senior to the mortgage, but in no event less than fair market value. On Deed in Lieu of Foreclosure: Based on the amount by which the debt of the obligor secured by the mortgaged premises is reduced, plus the amount, if any, of such debt assumed by the transferee in exchange for the mortgaged premises. In 2016, significant changes were made to NH RSA &sect; 78-B Tax on Transfer of Real Property. Most notably, two exemptions to the transfer tax were added. First, the transfer tax does not apply to any transfer of title, where no consideration is exchanged, “coincidental” to a change in an entity's form of organization, so long as the ownership, assets, and liabilities of the transferor and transferee are identical before and after. Second, a transfer of title from the owners of an entity to the entity, or from the entity to the owners of the entity, is exempt, provided that no consideration is exchanged, the direct or indirect owners of the parties to the transfer remain the same before and after, the respective ownership percentages of each are identical, and the combined assets and liabilities of the transferor and transferee remain the same. In addition to the exemptions, “transfers made solely to obtain financing or refinancing, as required by a lending institution, and that accomplish no other business purposes shall not be considered sufficient consideration to make a transfer a contractual transfer.” NH RSA &sect; 78-B:1a, IV. In 2019, the statute was amended again to provide for exemptions on transfer tax for transfers of interest in real property involving affordable housing. NH RSA &sect; 78-B:2, XXIII(a). The exemption is contingent on payment of real estate transfer tax at the time of initially acquiring the real property title. &sect;&nbsp;NH RSA 78-B:2, XXIII (a). Thereafter, transfers of interest in real property associated with that property for the following projects are exempt from transfer tax: (1) federal low-income housing tax credit projects or state low-income housing projects that receive federal grants, which comply with extended low-income housing commitment requirements; (2) Rental Assistance Demonstration (RAD) public housing conversions; and (3) other local state, or federal funding programs that mandate the real estate comply with covenants limiting rents, pursuant to the requirements for workforce housing or for the given program. &sect; NH RSA 78-B:2, XXIII(a)(1)-(3).

TRANSFER TAX

Choice of law provision enforceable, although the law of the situs of the land controls enforcement of mortgage.

ENFORCEABILITY OF AGREEMENT OF BORROWER AND LENDER AS TO CHOICE OF LAW PROVISIONS

The Superior Court may appoint a receiver to collect on a promissory note or other security for the payment of money from a trustee chargeable with paying it.

RECEIVER AVAILABLE

Any person engaged in the business of extending credit must furnish to each person or entity receiving credit, concurrently with the consummation of the transaction or agreement to extend credit, a clear statement in writing setting forth the finance charges, expressed in dollars, rate of interest, or monthly rate of charge, or a combination thereof, to be borne in connection with such extension of credit as originally scheduled. See NH RSA &sect;&nbsp;399-B:2. Other special rules concerning fees are imposed under certain licensed-lender laws, from which state or federally chartered banks, credit unions, and savings and loan associations generally are exempt.

ANY PROHIBITION OR SPECIAL RULES REGARDING LOAN APPLICATION, LOAN FEES OR COMMITMENT FEES

Manufactured housing, as defined by NH RSA &sect;&nbsp;674:31, may be secured either by a mortgage (if the housing is placed on a site and tied in to required utilities) or pursuant to the New Hampshire Uniform Commercial Code. NH RSA &sect;&nbsp;674:31 defines manufactured housing as “any structure, transportable in one or more sections, which, in the traveling mode, is 8 body feet or more in width and 40 body feet or more in length, or when erected on site, is 320 square feet or more, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to required utilities, which include plumbing, heating and electrical heating systems contained therein,” but specifically excludes presite built housing, as defined in NH RSA &sect;&nbsp;674:31-a. Applicants for voluntary merger of lots must give notice to mortgage holders. NH RSA &sect; 674:39-a, II. The planning boards' approval of merger applications is conditioned on obtaining the mortgage holders' consent. When recorded, the mortgage applies to all lots involved in the merger. The deadline to restore involuntarily merged lots is December 31, 2021. NH RSA &sect; 674:39-aa.

MANUFACTURED HOUSING

LOAN MODIFICATION SPECIAL REQUIREMENTS

New Hampshire imposes strict liability on any person who historically or presently owns and operates a facility that generates hazardous waste or arranged for the transportation or disposal of hazardous waste. Such person is liable for all costs incurred by the state in responding to a release or threatened release of hazardous waste. NH RSA &sect; 147-B:10, I. New Hampshire places a lien on: (1)&nbsp;all business revenues, (2)&nbsp;all real property, and (3)&nbsp;all personal property of any person who is responsible for the costs incurred by the state in responding to a release or threatened release of hazardous waste. NH RSA &sect;&nbsp;147-B:10-b. The lien on contaminated property, business revenues generated by the site, and personal property located at the site has priority over all encumbrances, even those previously perfected or recorded. With respect to non-contaminated real property, unrelated business revenues, and personal property located elsewhere, the lien does not have priority over existing encumbrances that were recorded or filed. The lien is for all costs incurred by the state pursuant to NH RSA &sect; 147-B. Such recoverable costs include containment costs, clean-up and restoration costs, removal of hazardous wastes or hazardous materials, and actions taken to monitor, assess, evaluate, or mitigate damage. NH RSA &sect;&nbsp;147-B:10, II. For the lien to be valid against real property, the state must record a notice of lien with the county. For a lien to be valid against business revenues and personal property, the state must record a notice of lien with the secretary of state. NH RSA &sect;&nbsp;147-B10-b III. Finally, the statute grants to a responsible party who undertakes cleanup activities or expends funds on other response or remedial costs, a lien of equal priority to the government's lien. NH RSA &sect;&nbsp;147-B:10-b,&nbsp;III(d).

ENVIRONMENTAL LIENS

No local bar opinion report articulating standard accepted opinion practices.

LEGAL OPINIONS

MATERIAL LIEN CLAIMS (“L&M LIEN”)—PRIORITY ISSUES:

LABOR AND

Generally, an L&M Lien has precedence and priority over any construction mortgage, except to the extent that a mortgagee shows that proceeds of the mortgage loan were either disbursed (i)&nbsp;toward payment of invoices from or claims due to contractors and suppliers of materials or labor for work on the mortgaged premises, or (ii)&nbsp;upon receipt by mortgagee from the mortgagor or mortgagor's agent of an affidavit that the work on the mortgaged premises for which such disbursement is to be made has been completed and that the subcontractors and suppliers of materials and labor have been paid for their share of such work, or will be paid out of such disbursement. NH RSA &sect;&nbsp;447:12-a.

GENERAL

Within 10 business days of the execution of a construction mortgage, including any refinancing thereof, the mortgagor or mortgagor's agent shall post in a conspicuous place on the job site for which the construction funds were secured, the name, address, and telephone number of the institution providing the construction funds. NH RSA &sect; 447:12-b. Any person entitled to an L&M Lien pursuant to NH RSA &sect;&nbsp;447:2-7 must provide written notice to the institution providing the construction funds that such person is furnishing services, materials, supplies or other things. Said notice must be given by the later of 15 business days of (i)&nbsp;the above-referenced posting by mortgagor or (ii)&nbsp;commencing to furnish services, materials, supplies, or other things. This notice must include the name and address of the job site. Failure to provide this notice shall not alone invalidate the lien created by NH&nbsp;RSA&nbsp;&sect;&nbsp;447:2-7. At least 48 hours prior to requesting any construction mortgage requisition, the mortgagor or its agent shall post the anticipated funding date for said requisition in a conspicuous place on the applicable job site. The mortgagee shall require a copy of said notice, which shall be certified as to its posting by the mortgagor or mortgagor's agent prior to disbursing any funds. If a written contract between the mortgagor or its agent and any person furnishing services, materials, supplies, or other things provides that the disbursement of construction funds, a portion of which is intended to pay such person, shall be by a 2-party check, the mortgagor or its agent shall transmit a copy of such agreement to the mortgagee. Upon receipt of a copy of such written agreement, the mortgagee shall subsequently disburse funds intended in part to pay any such person only by a check made payable to the mortgagor or its agent and such person. Unless otherwise agreed by the mortgagor and mortgagee, disbursements shall be made only for actual work completed and materials consumed on the job site for which the construction funds were secured.

ADDITIONAL RESPONSIBILITIES OF OWNER AND CONSTRUCTION LENDER

Title policies in New Hampshire are written on ALTA Forms.

FORM USUALLY REQUIRED BY LENDER

The following endorsements are available to an ALTA Loan Policy: <table>
 <tbody>
 <tr>
 <td width="475">
 Zoning (ALTA 3, 3.1).
 </td>
 </tr>
 <tr>
 <td width="475">
 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Unimproved Land
 </td>
 </tr>
 <tr>
 <td width="475">
 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Completed Structure
 </td>
 </tr>
 <tr>
 <td width="475">
 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Land Under Development
 </td>
 </tr>
 <tr>
 <td width="475">
 Condominium (ALTA 4).
 </td>
 </tr>
 <tr>
 <td width="475">
 Planned Unit Development (ALTA 5 or 5.1).
 </td>
 </tr>
 <tr>
 <td width="475">
 Variable Rate Mortgage (ALTA 6.1).
 </td>
 </tr>
 <tr>
 <td width="475">
 Negative Amortization (ALTA 6.2).
 </td>
 </tr>
 <tr>
 <td width="475">
 Environmental Protection Lien (ALTA 8.1)
 </td>
 </tr>
 <tr>
 <td width="475">
 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Commercial Environmental Protection Lien
 </td>
 </tr>
 <tr>
 <td width="475">
 Comprehensive (ALTA 9).
 </td>
 </tr>
 <tr>
 <td width="475">
 Other endorsements:
 </td>
 </tr>
 <tr>
 <td width="475">
 Access and Entry
 </td>
 </tr>
 <tr>
 <td width="475">
 Address
 </td>
 </tr>
 <tr>
 <td width="475">
 Aggregation
 </td>
 </tr>
 <tr>
 <td width="475">
 Assignment
 </td>
 </tr>
 <tr>
 <td width="475">
 Assignment and Datedown
 </td>
 </tr>
 <tr>
 <td width="475">
 Assignment of Rents and Leases
 </td>
 </tr>
 <tr>
 <td width="475">
 Coinsurance Single Policy
 </td>
 </tr>
 <tr>
 <td width="475">
 Contiguity Multiple Parcels
 </td>
 </tr>
 <tr>
 <td width="475">
 Contiguity Single Parcel
 </td>
 </tr>
 <tr>
 <td width="475">
 Covenants, Conditions and Restrictions
 </td>
 </tr>
 <tr>
 <td width="475">
 Deletion of Arbitration
 </td>
 </tr>
 <tr>
 <td width="475">
 Disbursement Endorsement
 Doing Business
 Easement Damage or Enforced Removal
 Electronic Policy Authentication
 Encroachments Boundaries and Easements
 Encroachments Boundaries and Easements Described Improvements
 Encroachments Boundaries and Easements Described Improvements Land Under Development
 Energy Project Covenants Conditions and Restrictions and Under Development
 Energy Project Encroachments
 Energy Project Leasehold/Easement
 Energy Project Leasehold Loan
 </td>
 </tr>
 <tr>
 <td width="475">
 Fairway
 </td>
 </tr>
 <tr>
 <td width="475">
 First Loss Multiple Parcel Transactions
 Future Advance Knowledge
 Future Advance Letter of Credit
 Future Advance Priority
 Future Advance Reverse Mortgage
 Identified Risk Coverage
 Indirect Access and Entry
 Interest Rate Swap Direct Obligation
 Interest Rate Swap Direct Obligation Defined Amount
 </td>
 </tr>
 <tr>
 <td width="475">
 Land Same as Survey
 </td>
 </tr>
 <tr>
 <td width="475">
 Last Dollar
 Leasehold
 Location
 Manufactured Housing Unit
 Manufactured Housing Unit Conversion Loan
 Mezzanine Financing
 Minerals and Other Subsurface Substances - Buildings
 Minerals and Other Subsurface Substances - Described Improvements
 Minerals and other Subsurface Substances - Land Under Development
 Mortgage Modification
 Mortgage Modification with Subordination
 Mortgage Modification with Additional Amount
 Multiple Tax Parcel
 Pending Improvements
 Pending Disbursements
 Same as Portion of Survey
 Same as Survey
 </td>
 </tr>
 <tr>
 <td width="475">
 Secondary Market
 </td>
 </tr>
 <tr>
 <td width="475">
 Separate Tax Parcel
 Severable Improvements
 Shared Appreciation Mortgage
 Single Tax Parcel
 </td>
 </tr>
 <tr>
 <td width="475">
 Street Assessment
 </td>
 </tr>
 <tr>
 <td width="475">
 Subdivision
 </td>
 </tr>
 <tr>
 <td width="475">
 Tax deed
 </td>
 </tr>
 <tr>
 <td width="475">
 Tie-in
 </td>
 </tr>
 <tr>
 <td width="475">
 Usury
 </td>
 </tr>
 <tr>
 <td width="475">
 Utility Access
 </td>
 </tr>
 <tr>
 <td width="475">
 Other affirmative coverages
 </td>
 </tr>
 <tr>
 <td width="475">
 Extended coverage for specific title problems
 </td>
 </tr>
 </tbody>
</table> &nbsp;

New Hampshire

Mortgage Law Summary

Continue reading the
Mortgage Law Summary for New Hampshire

New Hampshire

Mortgage Law Summary

Continue reading theMortgage Law Summary for New Hampshire

Continue reading the
Mortgage Law Summary for New Hampshire