New
Hampshire Lemon Law Statutes
Title 31 - Chapter 357D
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§ 357-D:1 Intent. - The legislature
finds and declares that manufacturers,
distributors and importers of new
motor vehicles should be obligated
to provide speedy and less costly
resolution of automobile warranty
problems. Manufacturers should be
required to provide in as expeditious
a manner as possible a refund of the
consumer's purchase price, payments
to a lessor and lessee, or a replacement
vehicle that is acceptable to the
consumer whenever the manufacturer
is unable to make the vehicle conform
with its applicable warranty. New
motor vehicle dealers and used motor
vehicle dealers cannot be sued under
this chapter.
Source. 1991, 222:1,
eff. Jan. 1, 1992.
§ 357-D:2 Definitions.
- In this chapter:
I. "Board"
means the New Hampshire new motor
vehicle arbitration board.
II. "Business
day" means any day during which
the service departments of authorized
dealers of the manufacturer of the
motor vehicle are normally open for
business.
III. "Consumer"
means the purchaser, other than for
purposes of resale of a new motor
vehicle; the lessee of a new motor
vehicle, other than for the purpose
of sublease; any person to whom such
motor vehicle is transferred during
the duration of an express warranty
applicable to the motor vehicle; or
any other person entitled by the terms
of the warranty to enforce the obligations
of the warranty. "Consumer"
shall not include any governmental
entity.
IV. "Distributor"
means any person who sells or distributes
new or used motor vehicles to motor
vehicle dealers or who maintains distributor
representatives within this state.
V. "Early termination
costs" means expenses and obligations
incurred by a motor vehicle lessee
as a result of an early termination
of a written lease agreement and surrender
of a motor vehicle to a manufacturer,
including penalties for prepayment
of finance arrangements.
VI. "Factory
branch" means any branch office
maintained by a manufacturer for the
purpose of selling, leasing, or offering
for sale or lease, vehicles to a distributor
or new motor vehicle dealer or for
directing or supervising, in whole
or in part, factory distributor representatives.
VII. "Lease"
or "leased" means a written
agreement with a lessee which shall
be for the use of a motor vehicle
for consideration for a term of 2
or more years.
VIII. "Lessee"
means any consumer who leases a motor
vehicle pursuant to a written lease
agreement for a term of 2 or more
years.
IX. "Manufacturer"
means any person, resident or nonresident,
who manufactures or assembles new
motor vehicles, or imports for distribution
through distributors of motor vehicles
or any partnership, firm, association,
joint venture, corporation or trust,
resident or nonresident, which is
controlled by a manufacturer. The
term "manufacturer" includes
distributors and factory branches.
X. "Motor vehicle"
means:
(a) A motor vehicle,
as defined in RSA 259:60, of the private
passenger or station wagon type with
a gross weight not exceeding 9,000
pounds that is purchased or leased
by a consumer; or
(b) Any other 4-wheel
motor vehicle with a gross weight
not exceeding 9,000 pounds, except
tractors, and mopeds; or
(c) Motorcycles,
or
(d) Any off highway
recreational vehicle as defined in
RSA 215-A:1, VI.
XI. "Motor vehicle
dealer" means any person engaged
in the business of selling, offering
to sell, leasing, soliciting or advertising
the sale of new or used motor vehicles
or possessing motor vehicles for the
purpose of resale either on his own
account or on behalf of another, either
as his primary business or incidental
thereto. However, "motor vehicle
dealer" shall not include:
(a) Receivers, trustees,
administrators, executors, guardians,
or other persons appointed by or acting
under judgment, decree or order of
any court; or
(b) Public officers
while performing their duties as such
officers.
XII. "Motor
vehicle lessor" means a person
who holds title to a motor vehicle
leased to a lessee under written lease
agreement for a term of 2 or more
years, or who holds the lessor's rights
under such an agreement.
XIII. "New motor
vehicle" means a passenger motor
vehicle which is still under the manufacturer's
express warranty.
XIV. "Nonconformity"
means a defect or condition that substantially
impairs the use, value or safety of
a motor vehicle, but does not include
a defect or condition that results
from an accident, abuse, neglect,
modification, or alteration of the
motor vehicle by persons other than
the manufacturer or its authorized
service agent.
XV. "Warranty"
includes express warranties as defined
in the Uniform Commercial Code, RSA
382-A, plus any written warranty of
the manufacturer.
Source. 1991, 222:1.
1994, 220:1, 2, eff. Jan. 1, 1995.
2002, 215:1, eff. July 1, 2002.
§ 357-D:3 Enforcement
of Warranties. - I. Every new motor
vehicle sold in this state shall conform
to all applicable warranties.
II. It shall be the
manufacturer's obligation under this
chapter to insure that all new motor
vehicles sold or leased in this state
conform with the manufacturer's express
warranties. The manufacturer may delegate
responsibility to its agents or authorized
dealers provided, however, in the
event the manufacturer delegates its
responsibility under this chapter
to its agents or authorized dealers,
it shall compensate the dealer for
all work performed by the dealer in
satisfaction of the manufacturer's
responsibility under this chapter.
III. If a new motor
vehicle does not conform to all applicable
express warranties and the consumer
reports the nonconformity to the manufacturer,
its agent or authorized dealer during
the term of the warranty, the manufacturer
shall cause whatever repairs are necessary
to conform the vehicle to the warranties,
notwithstanding the fact that the
repairs are made after the expiration
of a warranty term.
IV. A manufacturer,
its agent or authorized dealer shall
not refuse to provide a consumer with
a written repair order and shall provide
to the consumer, each time the consumer's
vehicle is brought in for examination
or repair of a defect, a written summary
of the complaint and a fully itemized
statement indicating all work performed
on the vehicle including, but not
limited to, examination of the vehicle,
parts, and labor.
V. If, after a reasonable
number of attempts, the manufacturer,
its agent or authorized dealer or
its delegate is unable to conform
the motor vehicle to any express warranty
by repairing or correcting any defect
or condition covered by the warranty
which substantially impairs the use,
market value, or safety of the motor
vehicle to the consumer, the manufacturer
shall, at the option of the consumer
within 30 days of the effective date
of the board's order, replace the
motor vehicle with a new motor vehicle
from the same manufacturer, if available,
of comparable worth to the same make
and model with all options and accessories
with appropriate adjustments being
allowed for any model year differences
or shall accept return of the vehicle
from the consumer and refund to the
consumer the full purchase price or
to the lessee, in the case of leased
vehicles, as provided in paragraph
IX. In those instances in which a
refund is tendered, the manufacturer
shall refund to the consumer the full
purchase price as indicated in the
purchase contract and all credits
and allowances for any trade-in or
down payment, license fees, finance
charges, credit charges, registration
fees, and any similar charges and
incidental and consequential damages
or, in the case of leased vehicles,
as provided in paragraph IX. Refunds
shall be made to the consumer and
lienholder, if any, as their interests
may appear, or to the motor vehicle
lessor and lessee as provided in paragraph
IX. A reasonable allowance for use
shall be that amount directly attributable
to use by the consumer prior to the
first repair attempt and shall be
calculated by multiplying the full
purchase price of the vehicle by a
fraction having as its denominator
100,000, or for a motorcycle or OHRV
with an engine size of 250 cubic centimeters
or smaller 20,000, or for a motorcycle
or OHRV with an engine size greater
than 250 cubic centimeters 40,000,
and having as its numerator the number
of miles that the vehicle traveled
prior to the first attempt at repairing
the vehicle.
VI. It shall be an
affirmative defense to any claim under
this chapter that an alleged nonconformity
does not substantially impair the
use, market value, or safety or that
the nonconformity is the result of
abuse, neglect, or unauthorized modifications
or alterations of a motor vehicle
by a consumer.
VII. It shall be
presumed that a reasonable number
of attempts have been undertaken to
conform a motor vehicle to the applicable
warranties if:
(a) The same nonconformity
as identified in any written examination
or repair order has been subject to
repair at least 3 times by the manufacturer,
it agent, or authorized dealer within
the express warranty term and the
same nonconformity continues to exist;
or
(b) The vehicle is
out of service by reason of repair
of one or more nonconformities, defects,
or conditions for a cumulative total
of 30 or more business days during
the term of the express warranty.
The term of any warranty and the 30-day
period shall be extended by any period
of time during which repair services
were not available to the consumer
because of war, invasion, strike,
fire, flood, or other natural disaster.
If an extension of time is necessitated
due to these conditions, the manufacturer
shall provide for the free use of
a vehicle to the consumer whose vehicle
is out of service. A vehicle shall
not be deemed out of service if it
is available to the consumer for a
major part of the day.
VIII. In order for
an attempt at repair to qualify for
the presumptions of this section,
the attempt at repair shall be evidenced
by a written examination or repair
order issued by the manufacturer,
its agent, or its authorized dealer.
The presumptions of this section shall
only apply to 3 attempts at repair
evidenced by written examination or
repair orders undertaken by the same
agent or authorized dealer, unless
the consumer shows good cause for
taking the vehicle to a different
agent or authorized dealer.
IX. In cases in which
a refund is tendered by a manufacturer
for a leased motor vehicle under paragraph
V, the refund and rights of the motor
vehicle lessor, lessee, and manufacturer
shall be in accordance with the following:
(a) The manufacturer
shall provide to the lessee the aggregate
deposit and rental payments previously
paid to the motor vehicle lessor by
the lessee, and incidental and consequential
damages, if applicable, minus a reasonable
allowance for use. The aggregate deposit
shall include, but not be limited
to, all cash payments and trade-in
allowances tendered by the lessee
to the motor vehicle lessor under
the lease agreement. The reasonable
allowance for use shall be calculated
by multiplying the aggregate deposit
and rental payments made by the lessee
on the motor vehicle by a fraction
having as its denominator 100,000
or for a motorcycle or OHRV 20,000,
and having as its numerator the number
of miles that the vehicle traveled
prior to the first attempt to repair
the vehicle.
(b) The manufacturer
shall provide to the motor vehicle
lessor the aggregate of the following:
(1) The lessor's
actual purchase cost, less payments
made by the lessee;
(2) The freight cost,
if applicable;
(3) The cost for
dealer or manufacturer-installed accessories,
if applicable;
(4) Any fee paid
to another to obtain the lease;
(5) An amount equal
to 5 percent of the lessor's actual
purchase cost as prescribed in subparagraph
IX(b)1). The amount in this subparagraph
shall be instead of any early termination
costs.
(c) The lessee's
lease agreement with the motor vehicle
lessor and all contractual obligations
shall be terminated upon a decision
of the board in favor of the lessee.
The lessee shall not be liable for
any further costs or charges to the
manufacturer or motor vehicle lessor
under the lease agreement.
(d) The motor vehicle
lessor shall release the motor vehicle
title to the manufacturer upon the
payment by the manufacturer under
the provisions of this section.
(e) The board shall
give notice to the motor vehicle lessor
of the lessee's filing of a request
for arbitration under this chapter
and shall notify the motor vehicle
lessor of the date, time and place
scheduled for a hearing before the
board. The motor vehicle lessor shall
provide testimony and evidence necessary
to the arbitration proceedings. Any
decision of the board shall be binding
upon the motor vehicle lessor.
Source. 1991, 222:1;
1992, 282:15, eff. Jan. 1, 1993. 2002,
215:2, 3, eff. July 1, 2002.
§ 357-D:4 Procedure
to Obtain Refund or Replacement. -
I. After the third attempt at repair
or correction of the nonconformity,
defect or condition, or after the
vehicle is out of service by reason
of repair of one or more nonconformities,
defects or conditions for a cumulative
total of 30 or more business days
as provided in this chapter, the consumer
shall notify the manufacturer along
with a clear and conspicuous disclosure
notice of the rights of the consumer
under this chapter at the time the
new motor vehicle is delivered, of
the nonconformity, defect or condition
and the consumer's election to proceed
under this chapter. The forms shall
be made available by the manufacturer
to the New Hampshire new motor vehicle
arbitration board, and any other public
or nonprofit agencies that shall request
them. Forms and notices shall be in
a form prescribed by rule of the department
of justice and shall not include window
stickers. The consumer shall, in the
notice, elect whether to use the dispute
settlement mechanism or the arbitration
provisions established by the manufacturer
or to proceed under the New Hampshire
new motor vehicle arbitration board
as established under this chapter.
The consumer's election of whether
to proceed before the board or the
manufacturer's dispute settlement
mechanism shall preclude his recourse
to the method not selected.
II. A consumer shall
not pursue a remedy under this chapter
if he has discontinued financing or
lease payments, if the payments have
been discontinued due to the manufacturer's
breach of obligation under this chapter
or due to a breach of the manufacturer's
warranties.
III. A consumer who
elects to proceed before the board
shall pay a filing fee of $ 50 and
the manufacturer shall pay a filing
fee of $ 250. Such fees shall be retained
by the department of safety and used
to defray costs associated with the
work of the board, including per diem
costs of board members and any other
administrative expenses.
IV. Arbitration of
the consumer's complaint, either through
the manufacturer's dispute settlement
mechanism or the board, shall be held
within 40 days of receipt by the manufacturer
or the board and the manufacturer
of the consumer's notice electing
the remedy of arbitration unless the
consumer or the manufacturer has good
cause for an extension of time, not
to exceed an additional 30-day period.
If the extension of time is requested
by the manufacturer, the manufacturer
shall provide free use of a vehicle
to the consumer if the consumer's
vehicle is out of service. In the
event the consumer elects to proceed
in accordance with the manufacturer's
dispute settlement mechanism and the
arbitration of the dispute is not
held within 40 days of the manufacturer's
receipt of the consumer's notice and
the manufacturer is not able to establish
good cause for the delay, the consumer
shall be entitled to receive the relief
requested under this chapter.
V. Within the 40-day
period set forth in paragraph IV,
the manufacturer shall have one final
opportunity to correct and repair
the defect which the consumer claims
entitles him to a refund or replacement
vehicle. If the consumer is satisfied
with the corrective work done by the
manufacturer or his delegate, the
arbitration proceedings shall be terminated
without prejudice to the consumer's
right to request that arbitration
be recommended as provided in RSA
357-D:11, I(b) if the repair proves
unsatisfactory.
VI. The manufacturer
shall refund the reasonable allowance
provided for in RSA 357-D:3, V or
IX, or make the replacement required
by the board within 30 days of a decision
of the board or within 15 days of
final adjudication.
Source. 1991, 222:1.
1994, 220:3, eff. Jan. 1, 1995.
§ 357-D:5 New
Motor Vehicle Arbitration Board Established;
Administrative Attachment; Rulemaking;
Decisions. - I. There is created a
New Hampshire new motor vehicle arbitration
board consisting of 5 members and
3 alternate members to be appointed
by the governor and council. Terms
of members shall be for 3 years. Board
members may be appointed for no more
than 2 terms. One member and one alternate
of the board shall be new car dealers
in New Hampshire, one member and one
alternate shall be persons knowledgeable
in automobile mechanics, and 3 members
and one alternate shall be persons
who represent consumers and have no
direct involvement in the design,
manufacture, distributions, sales
or service of motor vehicles or their
parts. Three members of the board
shall constitute a quorum. Members
shall be paid $50 per diem plus mileage.
II. The board shall
be administratively attached to the
department of safety under RSA 21-G:10.
III. The board shall
adopt rules, pursuant to RSA 541-A,
to implement the provisions of this
chapter.
IV. The board shall
hold a hearing within 40 days of receipt
of a complaint, unless an extension
of time has been granted by the board
under RSA 357-D:4, IV, and shall render
a decision within 30 days of the conclusion
of a hearing. The board shall have
the authority to issue only damages
as are provided by this chapter.
Source. 1991, 222:1.
1994, 220:4, 5, eff. Jan. 1, 1995.
§ 357-D:6 Appeal
From Board's Decision. - I. The decision
of the board shall be final and shall
not be modified or vacated unless,
on appeal to the superior court, a
party to the arbitration proceeding
proves, by clear and convincing evidence,
that:
(a) The award was
procured by corruption, fraud or other
undue means.
(b) There was evident
partiality by the board or corruption
or misconduct by the board prejudicing
the rights of any party.
(c) The board exceeded
its powers.
(d) The board refused
to postpone a hearing after being
shown sufficient cause to do so, refused
to hear evidence material to the controversy,
or otherwise conducted the hearing
contrary to the rules adopted by the
board so as to prejudice substantially
the rights of a party.
II. A party to the
arbitration proceeding shall not pursue
an appeal until a final decision has
been rendered by the board. Any appeal
shall be filed with the superior court
within 30 days of the date of the
written board decision.
Source. 1991, 222:1.
1994, 220:6, eff. Jan. 1, 1995.
§ 357-D:7 Unfair
and Deceptive Acts and Practices.
- Failure of the manufacturer or distributor
to comply with a decision of the board
shall constitute an unfair or deceptive
act or practice under RSA 358-A:2.
Source. 1991, 222:1,
eff. Jan. 1, 1992.
§ 357-D:8 Dealer's
Liability. - Nothing in this chapter
imposes any liability on a franchised
motor vehicle dealer or creates a
cause of action by a consumer against
a dealer, except for written express
warranties made by the dealer apart
from the manufacturer's warranties.
A dealer shall not be made a party
defendant in any action involving
or relating to this chapter, except
as provided in this section. The manufacturer
shall not charge back or require reimbursement
by the dealer for any costs, including,
but not limited to, any refunds or
vehicle replacements, incurred by
the manufacturer arising from this
chapter.
Source. 1991, 222:1,
eff. Jan. 1, 1992.
§ 357-D:9 Notification
to Consumers; Rulemaking by Department
of Justice. - Beginning with the model
year following July 1, 1992, the manufacturer
of every motor vehicle sold in this
state shall provide a clear and conspicuous
written notice of the consumer's rights
under this chapter as provided under
RSA 357-D:4 at the time of the delivery
of every such new motor vehicle in
this state. The manufacturer shall
provide the consumer with a self-addressed
notice in a form developed in accordance
with rules adopted by the department
of justice under RSA 541-A and sufficient
to notify the manufacturer of the
consumer's election to proceed under
this chapter. The manufacturer shall
not delegate this responsibility to
its authorized dealers. The manufacturer
of every new motor vehicle sold in
this state shall also provide a clear
and conspicuous notice that informs
consumers of their rights under this
chapter.
Source. 1991, 222:1,
eff. Jan. 1, 1992.
§ 357-D:10 Costs
and Attorney's Fees. - In any action
by a consumer against the manufacturer
or distributor of a motor vehicle
based upon the alleged breach of an
express warranty made in connection
with the sale or lease of such motor
vehicle, the court, in its discretion,
may award to the plaintiff costs and
reasonable attorney's fees. If the
court determines that the action was
brought with no substantial justification,
it may award costs and reasonable
attorney's fees to the defendant.
Source. 1991, 222:1,
eff. Jan. 1, 1992.
§ 357-D:11 Limitations
on Actions. - I. Any proceeding initiated
under the provisions of this chapter
shall be commenced within one year
following the later of:
(a) The expiration
of the express warranty term; or
(b) The manufacturer's
final repair attempt of the nonconformity,
as provided in RSA 357-D:4, V which
gave rise to the consumer's request
that the vehicle be replaced or the
money refunded.
II. Nothing in this
chapter shall in any way limit the
rights or remedies which are otherwise
available to a consumer under any
other provision of law.
Source. 1994, 220:7,
eff. Jan. 1, 1995.
§ 357-D:12 Sale
of Defective Motor Vehicles. - I.
For purposes of this section "a
serious safety defect" means
a life-threatening malfunction or
nonconformity that impedes the consumer's
ability to control or operate the
motor vehicle for ordinary use or
reasonable intended purposes or creates
a risk of fire or explosion.
II. Any manufacturer
or its agent or authorized dealer
is prohibited from reselling in New
Hampshire any vehicle determined or
adjudicated by the board as having
a serious safety defect.
Source. 1994, 395:1,
eff. Jan. 1, 1995.
