Unfortunately, the record does not permit us to determine the existence or non-existence of a lien. There is, however, a substantial risk that a lien does exist that would trigger the contractual provision and create a defect in title, or, at the minimum, an encumbrance on the title. It is clear that no lien has been recorded in the case before us. Thus, we must determine whether an unrecorded, inchoate lien exists. Since the lien is granted priority over all encumbrances existing at the time of recording and thereafter, it arises at the time of pollution by hazardous waste or hazardous materials.
Recording serves only to perfect the lien.
The legislature has adopted this lien structure in other circumstances. See RSA ch. Having found that a lien exists, we must determine whether the lien is applicable to this property in the hands of this buyer. I cannot believe that we would deny the buyer the right to avoid his obligation to purchase under the facts of this case, if a lien exists. The majority remands for consideration of plaintiff's claim of damages based on violation of good faith and fair dealing.