What’s My Defense?  New Hampshire Statute Provides List of Contractor Defenses to Defect Claims

As we discussed in a prior blog post, New Hampshire’s residential construction statute provides contractors with a statutory right to notice of claimed defects prior to being sued.  This statute, however, also provides contractors with another benefit that is often overlooked.  It contains an extensive list of things that residential contractors will not be liable for.  Specifically, NH RSA 359-G provides that residential contractors are not liable for damages caused by: (more…)

Contractors’ Right to Notice: New Hampshire’s Residential Construction Statute Requires Homeowners to Provide Notice of Defects Prior to Suing

Under New Hampshire law, homeowners are generally required to provide notice of any claimed construction defects prior to filing a lawsuit against their residential contractor.  The purpose of this law is to “encourage the out-of-court resolution of disputes between homeowners and contractors relative to residential construction defects.” N.H. RSA § 359-G. Assuming the contractor has preserved this right to notice (by including required language in its contract), homeowners must provide at least 60 days’ notice of any claimed defects prior to filing a lawsuit. (more…)

Maine Employers: Stop Asking About Salary History

Joining a number of other states, including Massachusetts, Connecticut, and Vermont here in New England, Maine has enacted legislation prohibiting employers from seeking salary history information from prospective employees.  Signed by Governor Mills on April 12, 2019, “An Act Regarding Pay Equality” supplements Maine’s Equal Pay statute and states that an employer may not “use or inquire about the compensation history of a prospective employee from the prospective employee or a current or former employer of the prospective employee unless an offer of employment that includes all terms of compensation has been negotiated and made to the prospective employee, after which the employer may inquire about or confirm the prospective employee’s compensation history.”  The Act also amends the Maine Human Rights Act and provides that an employer’s inquiry, whether direct or indirect, about a prospective employee’s compensation history before an offer of employment has been made may be used as evidence of unlawful employment discrimination. (more…)

Where is the Boundary of Waterfront Property?

Under Maine law, a property boundary described as extending to or along  “the shore” of a tidal area extends only to the high water mark, and not to the low water mark – and the intertidal area between  the upland owner’s land and the low water mark could be owned by another party.

Under well-settled Maine case law, a deed to waterfront property describing a boundary as extending to or along the “shore” means that the property line stops at the high water mark, and does not extend over the intertidal area to the low water mark. (more…)

USDOL Issues Proposed Rule Setting New Salary Threshold for the “White Collar” Executive, Administrative, and Professional Employee Exemptions

The U.S. Department of Labor (USDOL) released proposed regulations on March 7, 2019 adjusting the salary level required for the executive, administrative, and professional employee (EAP) exemptions from the FLSA’s minimum wage and overtime requirements. The proposed regulations are expected to go into effect in January 2020. (more…)

What Happens to Your Coastal Easement When the Sea Rises

Sea rise can shrink the size of oceanfront property as the oceanfront boundary creeps inland.  It can similarly shrink any easement over the property.  Depending on where the easement is and how it is defined, sea rise can cause the easement to move inland as the water’s edge moves inland, cause its use to become more limited, or cause it to disappear altogether. (more…)

Sweet v. Breivogel: A Stern Reminder That Contractors Must Comply With The Home Construction Contract Act

In upholding an award of legal fees in excess of $30,000 in favor of homeowners under the Home Construction Contract Act (the “HCCA”), Maine’s Law Court recently took the “opportunity to underscore the significance of the statutory requirement that construction contracts be formalized in writing.”  As I wrote about in a prior blog post, the HCCA requires contractors to formalize, in writing, any agreement to build, remodel or repair a residence for more than $3,000. (more…)

10 Legal Points for Maine Waterfront Owners on Sea Rise Erosion of Boundaries and Protective Seawalls

  1. Waterfront properties may shrink as the ocean rises and the rising low tide moves their waterfront boundaries inland.

Under Maine law, ownership of oceanfront land typically extends to the low tide mark, or 100 rods from high tide. As the low tide line gradually moves inland because of the rising sea level, so too will the waterfront boundaries move inland. Also, as land that was intertidal becomes permanently submerged, it will become State property, as the State owns all submerged land off the Maine coastline. (more…)

No Contract; No Problem?

On smaller jobs, a contractor or subcontractor may agree to perform work without a formal written contract.  While it is best to have a written contract in place, in the real world, people don’t always take the time to prepare and sign such an agreement. (more…)

The Golden Girls Shared Housing Model – Comedy or Tragedy? It all comes down to planning!

Television has popularized the notion of older adults living together in a shared housing arrangement born out of financial or other necessity, but evolving into a mutually supportive environment, capped off by ensuing hilarity.  In real life, however, the results of a shared housing arrangement can be significantly less fun, especially if proper planning isn’t employed at the outset. (more…)

Why You Probably Shouldn’t Form a Delaware Corporation

Start-up clients often ask me whether they should from a Delaware corporation. My answer is usually that unless the company can point to some specific compelling reason for forming in Delaware, a Delaware corporation is unlikely to be the best vehicle for achieving the company’s goals. Setting aside for another blog post the question of whether an LLC would be a better option, it often makes sense for a corporation to form under the laws of the state in which it will be principally located or transact the majority of its business. Let’s unpack the reasons for this conclusion: (more…)

Hidden Risks of Personal Liability for LLC Owners

As a lawyer who helps start-up companies, I’m often asked whether forming a limited liability company (LLC) will truly shield a company’s owner(s) from the risk of incurring personal liability. Sometimes, my clients are surprised to find out that the answer is no – forming an LLC only serves to limit personal liability with respect to the business in a few very specific, albeit important, ways. (more…)

USDOL Overtime Rule Update

Remember the scramble two years ago to prepare for the new federal overtime rule that would have increased the salary threshold level for “white-collar” exemptions from $23,660 to $47,476, only to have a federal district court judge in Texas issue an injunction preventing the USDOL from implementing and enforcing the rule just days before it was set to go into effect? Here is a quick summary of what has been happening on this issue since that November 2016 injunction. (more…)

How to “Bond Off” a Mechanic’s Lien

A mechanic’s lien can be a powerful tool in the hands of a contractor, subcontractor, or supplier that is owed money on a project.  Once recorded and perfected, a mechanic’s lien allows those that have performed work or supplied materials on a project to claim a legal right to the underlying property.  The property subject to the lien essentially serves as security for the payment of all unpaid amounts owed to the party asserting the lien. (more…)

The Supreme Court Overrules Quill Corp., Requiring Remote Vendors to Collect Sales Tax

On June 21, 2018, the United States Supreme Court issued an opinion (5-4) in South Dakota v. Wayfair, Inc., that upheld a state law requiring out-of-state sellers to collect and remit sales tax as if the seller had a physical presence in that state.  The ruling overrules the Court’s prior holding in Quill Corp. v. North Dakota, where the Court held that a state may not require a business that has no physical presence in said state to collect its sales tax. (more…)

The Supreme Court Upholds Arbitration Agreements That Waive Employees’ Right to Join a Class Action

On May 21, 2018, the United States Supreme Court issued an opinion (5-4) that upheld class-action waivers in arbitration agreements. The ruling gives businesses the ability to prevent employees from joining together to file claims for work-related issues.  Rather, pursuant to this decision, when employees enter into employment agreements that contain arbitration agreements, each employee must file an individual arbitration claim when a suspected violation arises. (more…)

Contract Brewing Agreements and Alternating Proprietorships

As your business continues to grow, you may find that your brewery has excess brewing capacity and begin to ask yourself how you can best fill those openings on your brew schedule and get more beer into the tanks.  Or you may be seeking to increase your production on a seasonal basis by asking another local brewer to brew beer for you. (more…)

Internships: To pay or not to pay?

As summer approaches, employers across the state will begin to receive resumes from students seeking practical work experience through internships. While internships can provide a great experience for both employers and students, one question that commonly arises is whether an intern should be paid. (more…)

“No Lien” Clauses: Are They Enforceable?

A “no lien clause” in a construction contract forces a contractor (or subcontractor or supplier) to give up its lien rights in advance of performing the construction work and/or supplying materials on a project.   In other words, the contractor promises that it won’t lien the project in the event of non-payment. (more…)

Year-End Tax Planning Reminders

Another year end is rapidly approaching so it is once again time to consider end of the year tax planning.  This year there is even more uncertainty than usual with the possibility of extensive modifications and changes to the tax code that, if passed, will seriously alter the tax landscape for 2018 and subsequent years. (more…)

Recent Legislation Affects Business’ Ability to Contract Against Negative Online Content

In the age of the viral tweet and YouTube channel, it’s no wonder that many businesses expend significant resources to manage and cultivate a positive online footprint. As 2017’s seemingly endless supply of high profile corporate PR disasters has thus far demonstrated, it has never been easier for a business to lose control of its online reputation. Well aware that online reviews increasingly inform and influence consumer choices, the prudent business owner may well wonder how he or she can best protect the company from negative online content. (more…)

Is that a “Spite Fence”?

This common scenario plays out throughout all of Maine:  a homeowner sets out to complete a major renovation to improve a water view and over the course of the remodel, relations with a neighbor sour.  Maybe it was the construction crew that drove on the neighbor’s lawn without permission or maybe it is the expanded size of the newly renovated home that has generated the ill will.  Either way, the disgruntled neighbor has now built a tall boundary fence, which, coincidentally or not, obliterates that newly obtained view.  What can the homeowner do? (more…)

USCIS Releases New Form I-9

On July 17, 2017, the U.S. Citizenship and Immigration Services (USCIS) released a revised Form I-9, Employment Eligibility Verification. Form I-9 is used to verify the identity and employment authorization for employees hired to work in the United States, and all U.S. employers are required to complete a Form I-9 for each individual hired to work within the United States. (more…)

Contractor Payment Obligations: “Pay-When-Paid” vs. “Pay-If-Paid”

Contractors often include “pay-when-paid” clauses in their subcontracts. These clauses provide that the contractor will pay its subcontractor after the contractor has received payment from the owner. A typical pay-when-paid clause might read: “Contractor shall pay Subcontractor within seven (7) days of Contractor’s receipt of payment from the Owner.” Thus, under this type of clause, the receipt of payment from the owner will trigger the contractor’s obligation to pay its subcontractor. But what happens if the owner never pays? Does the contractor have any payment obligations to its subcontractor? (more…)

How to Preserve and Enforce a Mechanic’s Lien

A mechanic’s lien can be an effective tool for contractors, subcontractors, and material suppliers seeking to enforce their right to get paid on a job. Under Maine law, anyone that furnishes labor or materials on a project with the owner’s consent will automatically have a lien (which secures payment for the labor or materials) on the real property where the project is located. (more…)

Maine’s Prompt Payment Act: Hidden Traps for the Unwary

Maine’s Prompt Payment Act strictly enforces owners’, contractors’ and subcontractors’ payment obligations.

For owners, the Act’s requirements are fairly straightforward. An owner must pay its contractor in accordance with the terms of its contract. If the contract does not include payment deadlines, the owner must pay the contractor’s invoices 20 days after the end of each billing period, or 20 days after delivery of each invoice, whichever is later. If payments to the contractor are subject to retainage, the owner must release those funds within 30 days after final acceptance of the work. (more…)

2016 End of Year Tax Planning Ideas

As we approach year-end, it’s time to consider end of the year tax planning.  For this year, the problem is compounded as a result of uncertainty as to what the new year will bring with a change in administration and the likelihood that President-elect Trump and the Republican majorities in the House and Senate will make structural alterations in the Tax Code.  There is certainly a possibility that next year will bring about lower marginal income tax rates and significant changes to the application of exemptions and deductions. (more…)

New Procedure for Obtaining a Waiver of the 60 Day Rollover Deadline for Retirement Account

MISSING THE 60 DAY ROLLOVER DEADLINE CAN CAUSE THE RETIREMENT ACCOUNT ROLLOVER TO BE TAXED: Most of us are aware that a taxpayer who participates in an IRA or qualified retirement plan may be eligible to make a tax free rollover of a lump sum distribution but only if the funds are contributed to another IRA or qualified retirement plan within 60 days of receipt. Failure to meet the 60 day requirement can cause the distribution to be taxable and possibly subject to the penalty tax on early distributions. (more…)

Client Bulletin the New FLSA Regulations: What They Mean and How to Comply, June 2016

The U.S. Department of Labor (the “DOL”) recently published a Final Rule updating its White Collar overtime exemption regulations. The Final Rule will become effective on December 1, 2016. The Final Rule changes the overtime pay exemption for certain salaried white collar and highly compensated employees under the Fair Labor Standards Act (the “FLSA”). The Final Rule significantly raises the base salary and wage thresholds necessary to satisfy the FLSA’s White Collar Exemption and Highly Compensated Employee Exemption, thereby creating potential overtime eligibility for salaried employees who were previously not entitled to overtime pay. (more…)

FTC Investigations: What To Expect When The FTC Comes Calling

A huge range of businesses – from “Mom and Pop” retail stores to large, multinational firms – collect and keep personal consumer information. The Federal Trade Commission (“FTC” or the “agency”) is the federal regulator overseeing the safety of that information. If your business maintains any consumer information, the FTC may review your data security practices. (more…)

Wyndham’s Shot Across the Bow: A Challenge to the FTC’s Authority to Enforce Data Security Standards

After the hotel chain Wyndham Worldwide Corporation (“Wyndham”) suffered three data security breaches in the span of two years, the Federal Trade Commission (“FTC”) brought suit against Wyndham under Section 5 of the FTC Act.  The FTC alleged that Wyndham had engaged in unfair and deceptive trade practices by: (1) failing to implement reasonable and appropriate data security measures to secure its customers’ personal information; and (2) misrepresenting that it had implemented such reasonable and appropriate measures to its customers. (more…)

Tax Advice for Victims of Identity Theft

The IRS reported a total of 1.6 million victims of identity theft involving stolen tax refunds in the first half of 2013, compared to just 271,000 for the whole of 2010. In monetary terms, the 2013 payout of stolen tax refunds came to $5.8 billion. The problem appears to be getting worse for 2014, with reports of penetrations of the computer systems of major tax preparation companies, including Turbo Tax, and widespread collection call scams. (more…)

Tax Filing Tips under the Affordable Care Act

The Affordable Care Act contains tax provisions that affect your 2014 income tax return. Almost everyone is affected by the individual shared responsibility provision, while only people who purchased coverage through the Marketplace are affected by the premium tax credit. The following chart will help you better understand what you need to do on your tax return. This chart is also available at (more…)

Hardship Exemption under the Affordable Care Act

The Internal Revenue Service has published an Announcement and new Regulations relating to qualifying for the “hardship exemption” under the Affordable Care Act, IRS Notice 2014-76, which may be helpful to taxpayers in preparing their tax returns for 2014. The Announcement and new Regulations may be found at the IRS website.

Individual Deduction Planning for 2014

Deduction timing is also an important element of year-end tax planning. Deduction planning is complex, however, due to factors such as filing status, adjusted gross income levels for deduction phaseout, and the alternative minimum tax. You also have to consider your income for the current and succeeding tax years to determine when claiming deductions will be the most advantageous. (more…)

Planning for Tax Reporting Under the Affordable Care Act

Though April 15, 2015, is a long way off, it’s time to begin thinking about how the Affordable Care Act will affect your 2014 income taxes.

The Affordable Care Act essentially requires that you and everyone in your family have qualifying insurance known as “minimal essential coverage”; qualify for an exemption; or make  a “Shared Responsibility Payment” (which is essentially treated as an additional tax) when you file your 2014 tax return. (more…)

eBay Fumbles Breach Notification

Recently, eBay discovered that hackers utilized the credentials of three of its corporate employees to gain access to user’s non-financial personal information. Users’ encrypted passwords, names, addresses, phone numbers and dates of birth were exposed as a result of the breach. (more…)

LinkedIn Privacy Claim Survives a Motion to Dismiss

To date, consumers have been largely unsuccessful in suing companies that have allowed their personal information to be exposed through a data security breach. However, a California plaintiff suing LinkedIn recently fended off an early attempt by the defendant to dismiss her claims. (more…)

The Employee Handbook: Don’t Overlook This Important Tool

An employee handbook is an important tool for all employers, large or small. An employee handbook serves to communicate important information such as the history and mission of the company and the policies, procedures, and benefits of employment. A properly written handbook can define the expectations of the employer and (provided the company follows to established policies) help protect the company against complaints of unfair and/or inconsistent treatment and discrimination. (more…)

Data Security Starts With the Simple Stuff

When thinking about data security breaches, people often envision highly skilled hackers employing sophisticated techniques to obtain access to protected data.  Consequently, many small businesses and organizations assume that they lack the knowledge or resources to implement effective data security measures.   (more…)

New Maine “Use Tax” Amnesty Program

The Maine Revenue Service has recently announced a new amnesty program for taxpayers who may be subject to “use tax” because they purchased tangible personal property outside the State of Maine and brought the property into Maine for use.   The official explanation of the amnesty program is attached.  Use tax problems can be significant for people who purchase expensive items such as vehicles, boats, airplanes, machinery and  equipment, computers, and other expensive items outside the State of Maine and bring them into Maine.

Avoiding Probate

There are advantages and disadvantages to using non-probate transfers that pass your property directly to your beneficiaries instead of by Will.  Even in states like Maine, that have a less formal will-probate process, lower fees, and fewer delays, there are advantages in using non-probate transfers.  The key advantage is the beneficiaries’ immediate access to property. (more…)

Why Your Organization Needs a Data Incident Response Plan: The Growing Need for a Planned Response.

Data security breaches affect organizations of all sizes.  Whether it is with its 24 million customer accounts[1] or your local Subway franchise,[2] no business is immune from the threat of a data security breach.  Breaches occur in all manners — from sophisticated hacking intrusions to simple thefts of laptops and cell phones.[3] Therefore, all organizations should plan for the possibility of a data security incident. (more…)

Once More unto the Breach: Courts Give Consumers More Rights for Cyber-Data Security Breaches

Is the legal tide turning for consumers whose personal on-line information is hacked? Data security breaches are becoming more common, but until recently, consumers have been largely unsuccessful in suing companies where their personal information was exposed. In fact, most courts have dismissed these suits even before they get to trial. The courts’ basic legal theory has been “no harm, no foul.” So long as consumers’ accounts were reimbursed for any fraudulent charges resulting from the hacking, their other related costs resulting from the inconvenience were not recoverable. (more…)

Maine Estate Tax Reform

The Legislature has passed and the Governor has signed a significant estate tax reform package.

The big news is that the Maine credit shelter exemption will increase from $1,000,000 to $2,000,000 per taxpayer as of January 1, 2013. A married couple will be able to shelter $4,000,000 from Maine estate taxes. (more…)

The New Estate Tax Legislation

The new estate tax legislation, passed by Congress on December 17, 2010, will greatly change the estate tax as we have known it.

  • The key feature of the legislation is to provide a $5,000,000 estate tax credit shelter for each person ($10,000,000 for a husband and wife) instead of the $1,000,000 credit shelter that would have become effective on January 1, 2011.  The $5,000,000 estate tax credit shelter is made effective retroactively to January 1, 2010.   The $5,000,000 credit shelter will be indexed for inflation beginning in 2012. (more…)

Before 2011, Get Ready for Changes in Estate Tax Law


As things currently stand, with less than a month to go in the 2010 tax year, the federal estate tax and generation skipping transfer tax are temporarily repealed by Congress.  However, on January 1, 2011, the federal estate tax and generation skipping transfer tax will be reinstated as they existed in 2001 with a $1,000,000 credit shelter exemption and a marginal effective rate of 41% increasing incrementally to 55% for estates in excess of $3,000,000. If Congress allows this to happen, many people who thought that they were free from estate tax concerns will need to rethink their arrangements to minimize the estate tax impact.  I recommend you set up an appointment with your attorney now to review your current arrangements. (more…)

Taking a Third of Your Spouse’s Estate


If your spouse passes away while domiciled in Maine, you can choose between inheriting under your spouse’s Will or taking a third of his or her “augmented estate”. (more…)

Making a Will in Maine


  1. Having a Will Ensures that Your Wishes will be Honored. In Maine, if you do not have a Will, State law will determine how your property will be distributed and who will manage your estate upon your demise. With a Will, you are the one who decides to whom and how your assets will be distributed and who will take care of your financial affairs. (more…)

End-of-life Decision Planning



In Maine, you are in charge of your medical and end-of-life decisions. By planning ahead and making your wishes known through medical care directives, you can provide for your own peace of mind, and help your loved ones know what to do, in the event of your illness or injury. Such planning can avoid hasty decisions being made with inadequate information, and can avoid family disputes about your proper care and your preferences. (more…)

Durable Powers of Attorney in Maine

What is a Durable Power of Attorney:
A power of attorney is a document in which one person, the “principal”, appoints another person, the “agent”, to act on his or her behalf, conferring authority on the agent to perform certain acts or functions on behalf of the principal.  A power of attorney is “durable” if it continues in effect even if the person who created it becomes disabled or incapacitated. (more…)

Welcome to my Maine Estate Planning and Elder Law Blog, beginning July 1, 2010

Perkins Thompson receives many inquiries on estate planning and elder law issues.  Because I handle many of these, and have been editor of Maine Probate Laws and Maine Probate Procedure and Adjunct Professor of Estate Planning at the University of Maine School of Law, my partners thought it would be useful to clients and readers to post a series of essays on these issues on our firm’s website. (more…)

Eight Steps for a Personal Representative to Probate a Will and Settle an Estate in Maine

The vast majority of wills requiring probate administration in Maine can be handled at low cost within a reasonable time period. Maine’s probate administration process provides a means to wind up a decedent’s affairs in an orderly fashion and assure that all bills and debts can be paid and that the decedent’s properties are properly distributed to the beneficiaries of the decedent’s selection. The probate process provides a structured procedure for the settlement of the decedent’s affairs and business which provides protection and finality for the family and fiduciaries. (more…)