359-G:4. Notice and Opportunity to Repair.
I. In every action subject to this chapter, the homeowner shall, no later than 60 days before initiating an action against a contractor, provide service of written notice of claim on that contractor. The notice of claim shall state that the homeowner asserts a construction defect claim and is providing notice of the claim pursuant to the requirements of this chapter. The notice of claim shall describe the claim in detail sufficient to explain the nature of the alleged construction defect and the result of the defect. In addition, the homeowner shall provide to the contractor any evidence in possession of the homeowner that depicts the nature and cause of the construction defect.
II. Within 30 days after service of the notice of claim by the homeowner required in paragraph I, each contractor that has received the notice of claim shall serve on the homeowner, and on any other contractor that has received the notice of claim, a written response to the claim or claims, which discloses any evidence in the possession of the contractor that depicts the nature and cause of the construction defect, and:
(a) Offers to settle the claim by monetary payment, the making of repairs, or a combination of both, without inspection;
(b) Proposes to inspect the residence that is the subject of the claim; or
(c) Wholly rejects the claim.
III. Notwithstanding any other provision of this chapter, if the contractor fails to respond to the homeowner under paragraph II, wholly rejects the claim, or will neither remedy the alleged construction defect nor settle the claim, the homeowner may immediately bring an action against the contractor for the claims described in the notice of claim without further notice except as otherwise provided under applicable law.
IV. If a proposal for inspection is made pursuant to subparagraph II(b), the homeowner may, within 15 days of receiving a contractor's proposal, provide the contractor and its subcontractors, agents, experts, and consultants prompt and complete access to the residence to inspect the residence, document any alleged construction defect, and, if authorized in writing by the homeowner, perform any destructive or non-destructive testing required to fully and completely evaluate the nature, extent, and cause of the claimed defect and the nature and extent of any repairs or replacements that may be necessary to remedy the alleged defect. If destructive testing is authorized in writing by the homeowner, the contractor shall give the homeowner advance notice of such tests and shall, after completion of the testing, return the residence to a condition as close as reasonably practicable to its pre-testing condition. If any inspection or testing reveals a condition that requires additional testing to allow the contractor to fully and completely evaluate the nature, cause, and extent of the construction defect, the contractor shall provide notice to the homeowner of the need for such additional testing and, if the homeowner consents in writing to such additional testing, the homeowner shall provide access as provided under this section. If a claim is asserted on behalf of owners of multiple residences, or multiple owners of units within a multi-family complex, then the contractor shall be entitled to inspect each of the residences or units, with the written consent of the unit owner.
V. Within 15 days following completion of the inspection and testing under paragraph IV, the contractor shall serve on the homeowner a response disclosing any inspection or testing records in the possession of the contractor that depict the nature and cause of the construction defect, and:
(a) A written offer to fully or partially remedy the construction defect at no cost to the homeowner. Such offer shall include a description of any additional construction necessary to remedy the defect described in the claim, and an anticipated timetable for the completion of such construction;
(b) A written offer to settle the claim by monetary payment;
(c) A written offer including a combination of repairs and monetary payment; or
(d) A written statement that the contractor will not proceed further to remedy the defect.
VI. If a homeowner accepts a contractor's offer made pursuant to subparagraph V(a), (b), or (c) and the contractor does not proceed to make the monetary payment or remedy the construction defect within the agreed timetable, the homeowner may bring an action against the contractor for the claim described in the notice of claim without further notice except as otherwise provided by applicable law. In such situation, the homeowner may also file the contractor's offer and homeowner's acceptance, and such offer and acceptance will create a rebuttable presumption that a binding and valid settlement agreement has been created and should be enforced by the court or arbitrator.
VII. If a homeowner receives a written statement that the contractor will not proceed further to remedy the defect, the homeowner may bring an action against the contractor for the claim described in the notice of claim without further notice except as otherwise provided by applicable law.
VIII. If the homeowner rejects the offer made by the contractor to remedy the construction defect or to settle the claim by monetary payment or a combination of each, the homeowner may serve written notice of the homeowner's rejection on the contractor.
IX. If the value of the offer that the homeowner rejects under this section is greater than any judgment awarded in an ensuing civil proceeding, then the contractor shall be deemed the prevailing party for the purpose of determining the taxation of costs in the proceeding.
X. Any homeowner accepting the offer of the contractor to remedy a construction defect shall do so by serving the contractor with a written notice of acceptance within a reasonable period of time after receipt of the contractor's settlement offer, but no later than 30 days after receipt of the offer. If no response is served upon the contractor within the 30-day period, then the offer shall be deemed rejected.
XI. If a homeowner accepts a contractor's offer to repair a construction defect described in a notice of claim, the homeowner shall provide the contractor and its subcontractors, agents, experts, and consultants prompt and reasonable access to the residence to perform and complete the construction by the timetable stated in the settlement offer.
XII. Service of a written notice of claim pursuant to this chapter shall automatically toll the expiration of an applicable limitations period for a period of 60 days. This paragraph shall not be construed to:
(a) Extend any tolling of expiration beyond 60 days;
(b) Revive any statute of limitation that expired prior to service of a notice of claim; or
(c) Extend any applicable statute of repose.
XIII. A homeowner and a contractor may alter, by written mutual agreement, the procedure for the notice of claim process described in this section. The altered process may follow customer dispute resolution guidelines outlined by recognized third party insured warranty programs licensed or approved by the state of New Hampshire.
XIV. In an action relating to a residence involving a construction defect, a contractor shall not be liable for any portion of a homeowner's damages caused by:
(a) Normal shrinkage due to drying or settlement of construction components within the tolerance of normally accepted building industry standards or standards agreed upon in the contract between the homeowner and the contractor.
(b) The contractor's reasonable reliance on written information relating to the residence that was obtained from official government records or provided by a government entity.
(c) The contractor's reasonable reliance on applicable building codes in effect at the start of the construction, except to the extent the homeowner and the contractor had agreed in writing to exceed the construction standards set forth in the applicable building codes.
(d) Any construction defect that was known by or disclosed to a homeowner in writing prior to the homeowner's purchase of the residence, and that was not caused to worsen or otherwise exacerbated by acts or omissions of the contractor.
(e) If the homeowner is not the first owner of the residence, any construction defect known by the homeowner or that could have been discovered by the homeowner through the exercise of reasonable diligence prior to the homeowner's purchase of the residence, and that was not caused to worsen or otherwise exacerbated by acts or omissions of the contractor.
(f) Refusal of the homeowner or homeowner's agent to allow the contractor or contractor's agents to perform their warranty service work.
(g) Normal wear, tear, and deterioration of building components.
(h) Comparative negligence or failure to perform normal and reasonable maintenance of the residence on the part of the homeowner.
(i) Alteration of contractor's work by homeowner without contractor's written consent.
Source. 2005, 155:1, eff. Jan. 1, 2006.
