Lemon Law - New Hampshire
Lemon Law
Lemon Law - "Lemon
law" is that body of state law which defines an automobile
owners rights when the manufacturer is not able to repair the
automobile within the limits specified. In
such cases, the automobile is referred to as a "lemon",
and is subject to the conditions of the state lemon law.
Your Lemon Law:
Disclaimer:
These pages are created to inform and educate the public about lemon
law and under the lemon law in your state. They are not and
should not be considered legal opinions or advice as to whether you
have rights under lemon law or whether you should pursue "a
lemon law case". If after reading this information,
you believe you qualify, you should seek the advice and counsel of
an attorney specializing in lemon law in your state. Remember
that each state's lemon laws vary.
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.
357-D:2 Definitions.
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, off highway recreational vehicles, and mopeds; or
(c) Motorcycles.
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.
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 lien holder, 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 with an engine size of 250 cubic
centimeters or smaller 20,000, or for a motorcycle 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, its 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 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.
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.
357-D:5 New Motor Vehicle
Arbitration Board Established.
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.
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.
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.
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.
357-D:9 Notification to
Consumers.
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.
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.
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.
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.
