Construction Defect Demand Letter - New Hampshire

NOTICE OF RESIDENTIAL CONSTRUCTION DEFECT CLAIM

NEW HAMPSHIRE — RSA CHAPTER 359-G

SERVE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR IN-HAND SERVICE

Date of service: [__/__/____]

To:

[CONTRACTOR NAME]

[LAST KNOWN ADDRESS OR PLACE OF BUSINESS]

[CITY, STATE ZIP]

Re: Notice under RSA 359-G:4

Homeowner: [HOMEOWNER NAME]

Residence: [PROPERTY ADDRESS]

Contract/project: [DESCRIPTION AND DATE]

Substantial completion: [__/__/____, if known]

Dear [CONTRACTOR NAME]:

[LAW FIRM OR SENDER NAME] represents [HOMEOWNER NAME] concerning the residential construction defects described below. The homeowner asserts a construction-defect claim and serves this notice under RSA chapter 359-G.

The homeowner does not intend to initiate a covered lawsuit, judicial action, or arbitration against you until at least 60 days after service of this notice, unless RSA 359-G:4, III permits an earlier action because you fail to respond, wholly reject the claim, or state that you will neither remedy nor settle it.

Under RSA 359-G:4, II, your written response is due within 30 days after service of this notice.

1. STATUTORY SCOPE AND DEADLINE CHECK

RSA chapter 359-G governs an action asserting a claim for damages or other relief involving a residence and an alleged construction defect. Its definitions include:

• a homeowner that contracted for the construction, sale, substantial remodel or repair, or construction and sale of a residence, including an authorized assignee, agent, or subsequent purchaser;
• a contractor engaged in designing, developing, constructing, modifying, or repairing a residence or an appurtenance; and
• a residence consisting of a single-family house, duplex, or a residential multifamily unit transferred under a condominium or cooperative system, together with specified common areas and appurtenant systems or improvements.

Confirm before service:

• ☐ The sender qualifies as a homeowner under RSA 359-G:2, II.
• ☐ The recipient qualifies as a contractor under RSA 359-G:2, IV.
• ☐ The property qualifies as a residence under RSA 359-G:2, V.
• ☐ The contemplated proceeding is an action under RSA 359-G:2, I.
• ☐ Service will be made by a method authorized in RSA 359-G:2, VI.
• ☐ The filing date is no earlier than [__/__/____], 60 days after service, unless RSA 359-G:4, III applies.

Chapter 359-G does not create a new cause of action. It does not govern a contractor's contribution, indemnity, or recovery claim against a subcontractor, supplier, or design professional, or an insurer-subrogation claim based on payment under a homeowner's policy. RSA 359-G:8, I–III.

2. HOMEOWNER AND PROJECT INFORMATION

Potentially involved subcontractors, suppliers, or design professionals:

3. DETAILED NOTICE OF CLAIM

RSA 359-G:4, I requires enough detail to explain both the nature of each alleged defect and its result. Complete a separate entry for every known defect.

DEFECT 1 — [SHORT TITLE]

Location: [PRECISE LOCATION]

Nature of alleged defect:

[DESCRIBE THE DESIGN, CONSTRUCTION, MODIFICATION, OR REPAIR CONDITION IN DETAIL.]

Observed result or damage:

[DESCRIBE LEAKING, MOVEMENT, CRACKING, LOSS OF USE, PROPERTY DAMAGE, OR OTHER RESULT.]

Date first observed: [__/__/____]

Known progression: [DESCRIPTION]

Contract, plan, warranty, code, instruction, or standard implicated:

[IDENTIFY THE SPECIFIC PROVISION OR STATE THAT EXPERT REVIEW IS PENDING.]

Known or estimated repair: [DESCRIPTION]

Estimated amount: $[AMOUNT OR PENDING]

DEFECT 2 — [SHORT TITLE]

[REPEAT THE DEFECT 1 FORMAT.]

4. HOMEOWNER-HELD EVIDENCE PROVIDED

RSA 359-G:4, I requires the homeowner to provide evidence in the homeowner's possession that depicts the nature and cause of the claimed defect.

The following is enclosed or provided with this notice:

• ☐ Dated photographs or video
• ☐ Inspection report
• ☐ Engineer, architect, or consultant report
• ☐ Moisture, air-quality, or other testing
• ☐ Repair estimate or scope
• ☐ Plans, specifications, or change orders
• ☐ Contract and written warranty
• ☐ Prior repair records
• ☐ Relevant correspondence
• ☐ Other: [DESCRIPTION]

Evidence not currently in the homeowner's possession or still being developed:

[DESCRIPTION]

5. CONTRACTOR'S STATUTORY RESPONSE

Within 30 days after service, RSA 359-G:4, II requires you to serve a written response on the homeowner and on any other contractor that received this notice. The response must disclose evidence in your possession depicting the nature and cause of the claimed defect and must do one of the following:

1. offer to settle through a monetary payment, repairs, or both, without inspection;
2. propose an inspection of the residence; or
3. wholly reject the claim.

Please send the response to:

[RECIPIENT NAME]

[ADDRESS]

[EMAIL, IF ALSO REQUESTED]

[TELEPHONE]

If you fail to respond, wholly reject the claim, or state that you will neither remedy the alleged defect nor settle the claim, RSA 359-G:4, III permits the homeowner to bring the described claim immediately, subject to other applicable law.

6. INSPECTION PATH

If you propose an inspection, the homeowner may provide prompt and complete access within 15 days after receiving the proposal. RSA 359-G:1 and RSA 359-G:4, IV encourage but do not require inspection access.

Any inspection proposal should identify:

• proposed dates and expected duration;
• each attending contractor, subcontractor, agent, expert, or consultant;
• the areas and components to be inspected;
• proposed non-destructive testing; and
• any proposed destructive testing and restoration plan.

Destructive or non-destructive testing requiring authorization may be performed only with the homeowner's written authorization. For authorized destructive testing, provide advance notice and restore the residence as close as reasonably practicable to its pre-testing condition. Any additional testing also requires notice and the homeowner's written consent. RSA 359-G:4, IV.

Within 15 days after completing inspection and testing, serve the response required by RSA 359-G:4, V. That response must disclose contractor-held inspection or testing records depicting the nature and cause of the defect and must provide:

• a written offer to remedy all or part of the defect at no cost, including the additional work and anticipated completion timetable;
• a written monetary offer;
• a written offer combining repairs and payment; or
• a written statement that you will not proceed further.

7. PROPOSED RESOLUTION

Without limiting the homeowner's evaluation of a statutory response, the homeowner proposes:

Option A — Repair

• Repair scope: [DESCRIPTION]
• Contractor or approved repair contractor: [NAME]
• Start date: [__/__/____]
• Completion date: [__/__/____]
• Permits and inspections: [DESCRIPTION]
• Written repair warranty: [TERMS]
• Temporary protection or relocation: [DESCRIPTION]
• Other payment: $[AMOUNT AND BASIS]

Option B — Monetary Resolution

• Proposed payment: $[AMOUNT]
• Payment deadline: [__/__/____]
• Scope of proposed release: [DESCRIPTION]

An accepted offer that is fully performed bars a later action on that claim under RSA 359-G:6. If the homeowner accepts an offer under RSA 359-G:4, V and the contractor does not pay or remedy the defect within the agreed timetable, RSA 359-G:4, VI permits an action without further chapter 359-G notice; the offer and acceptance may also create a rebuttable presumption of an enforceable settlement.

8. CLAIMS AND DAMAGES RESERVED FOR COUNSEL REVIEW

Chapter 359-G supplies a notice-and-discussion framework, not a cause of action. Counsel should select and plead only theories supported by the contract, warranty, project facts, and current law.

Potential theories requiring case-specific review:

• ☐ Breach of a specific contract provision
• ☐ Breach of an identified express warranty
• ☐ Negligence or professional negligence
• ☐ A transaction-specific implied-warranty theory
• ☐ Misrepresentation or another statutory theory supported by particular conduct
• ☐ Other: [IDENTIFY]

Potential damages requiring proof and recoverability analysis:

Counsel must separately determine whether the governing contract, statute, rule, and proven claim support attorney's fees, costs, interest, consequential damages, or another requested remedy.

9. LIMITATIONS AND REPOSE WARNING

This notice does not state that every claim has the same filing deadline.

• RSA 508:4, I generally requires a personal action within three years of the complained-of act or omission. If the injury and its causal relationship to that act or omission were not and could not reasonably have been discovered then, the action must be commenced within three years after actual or reasonably diligent discovery of both.
• RSA 508:4-b, I generally bars covered actions for property injury, personal injury, wrongful death, or economic loss arising from a deficiency in creating an improvement to real property more than eight years after substantial completion.
• RSA 508:4-b defines substantial completion, delays the trigger for systems serving an entire phased project until all phases are substantially complete, extends the period to match a longer written warranty or guarantee, and contains special rules for fraudulent misrepresentation or concealment.
• RSA 508:4-b excludes specified nuclear-power, nuclear-waste, and long-term hazardous-material storage improvements and preserves liabilities based on actual possession or control and negligence in repair, maintenance, or upkeep.
• RSA 382-A:2-725 supplies a four-year period for a qualifying contract for sale and generally measures warranty accrual from tender of delivery; it should not be applied automatically to a construction-services claim.

Calculate all deadlines independently. Do not assume that service of this notice tolls a limitations or repose period.

10. SAFETY, MITIGATION, AND RECORDS

Nothing in chapter 359-G prevents a homeowner from acting as necessary to prevent an unsafe condition or further deterioration of the residence. RSA 359-G:8, IV.

The homeowner requests that you preserve relevant project records and materials, including contracts, subcontracts, plans, specifications, change orders, permits, inspection records, communications, photographs, daily logs, warranty records, invoices, testing data, and insurance information. This is a preservation request; available remedies for lost evidence depend on the facts and applicable law.

The homeowner reserves the right to perform emergency or protective work and will document conditions before alteration when reasonably possible.

11. CONCLUSION

Please serve the response required by RSA 359-G:4, II within 30 days after service of this notice. Direct scheduling requests and settlement communications to [CONTACT NAME] at [CONTACT INFORMATION].

Respectfully,

[LAW FIRM OR SENDER NAME]

By: _________________________________

[ATTORNEY OR HOMEOWNER NAME]

[NEW HAMPSHIRE BAR NUMBER, IF APPLICABLE]

[ADDRESS]

[TELEPHONE]

[EMAIL]

ENCLOSURES

• ☐ Evidence listed in Section 4
• ☐ Contract and amendments
• ☐ Written warranty
• ☐ Repair estimates
• ☐ Expert or inspection materials
• ☐ Other: [DESCRIPTION]

Proof of service: ☐ Certified-mail receipt attached ☐ In-hand service affidavit attached

ATTORNEY REVIEW NOTES

1. Premature action: On a party's application, a court or arbitrator must stay a noncompliant action without prejudice until compliance. The stay may not exceed RSA 359-G:4, I's 60-day period, and no contractor attachment may issue until it expires. RSA 359-G:3.
2. Later-discovered defect: A later defect substantially related to the facts, acts, or omissions in the initial notice may be added to the action without repeating the notice procedure. RSA 359-G:5.
3. Building code: Verify the code version and local amendments applicable when the work was performed. RSA 155-A:1 currently defines the state building code by adopted model-code editions and ratified amendments. Analyze separately what legal effect a proven code issue has on the selected claim.
4. Credentials: Check the people and work involved. Electrical installations are regulated under RSA chapter 319-C; plumbing and fuel-gas work under RSA 153:27 through 153:38; and professional engineering under RSA 310-A:2 through 310-A:27. Also verify project-specific local requirements.
5. Accepted offers: Do not accept repair or payment terms without defining scope, schedule, access, permits, testing, restoration, payment, warranty, insurance, and release terms.

OFFICIAL SOURCES

• New Hampshire General Court, RSA chapter 359-G: https://gc.nh.gov/rsa/html/XXXI/359-G/359-G-mrg.htm
• RSA 508:4: https://gc.nh.gov/rsa/html/LII/508/508-4.htm
• RSA 508:4-b: https://gc.nh.gov/rsa/html/LII/508/508-4-b.htm
• RSA 382-A:2-725: https://gc.nh.gov/rsa/html/XXXIV-A/382-A/382-A-2-725.htm
• RSA 155-A:1: https://gc.nh.gov/rsa/html/XII/155-A/155-A-1.htm

This template is for informational purposes only and does not constitute legal advice. A New Hampshire attorney must review and customize it before use.