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TITLE 55
Proceedings in Special Cases
CHAPTER 540
Actions Against Tenants



Tenancies, Nature of:  Every tenancy or occupancy shall be deemed to be at will, and the rent payable upon demand, unless a different contract is shown.  540:1

Definitions:  In this chapter:
I. "Nonrestricted property" means all real property rented for nonresidential purposes and the following real property rented for residential purposes:
(a) Single-family houses, if the owner of such a house does not own more than 3 single-family houses at any one time.
(b) Rental units in an owner-occupied building containing a total of 4 dwelling units or fewer.
(c) Rental units in a vacation or recreational dwelling, rented during the off-season for purposes which are not vacation purposes or which are nonrecreational.
(d) Single-family houses acquired by banks or other mortgagees through foreclosure.
II. "Restricted property" means all real property rented for residential purposes, except those properties listed in paragraph I.
III. "Rental unit" means a suite of one or more rooms located within a single building rented by the owner to one or more individuals living in common for nontransient residential purposes.
IV. The term "tenant" or "tenancy" shall not include occupants or occupancy in the following places and the provisions of this chapter shall not apply to:
(a) Rooms in rooming or boarding houses which are rented to transient guests for fewer than 90 consecutive days.
(b) Rooms in hotels, motels, inns, tourist homes and other dwellings rented for recreational or vacation use.
(c) Rooms in student dormitories, nursing homes, hospitals, convents, monasteries, asylums or group homes.
(d) A single family home in which the occupant has no lease, which is the primary and usual residence of the owner. 540:1-a

Termination of Tenancy:
I. The lessor or owner of nonrestricted property may terminate any tenancy by giving to the tenant or occupant a notice in writing to quit the premises in accordance with RSA 540:3 and 5.
II. The lessor or owner of restricted property may terminate any tenancy by giving to the tenant or occupant a notice in writing to quit the premises in accordance with RSA 540:3 and 5, but only for one of the following reasons:
(a) Neglect or refusal to pay rent due and in arrears, upon demand.
(b) Substantial damage to the premises by the tenant, members of his household, or guests.
(c) Failure of the tenant to comply with a material term of the lease.
(d) Behavior of the tenant or members of his family which adversely affects the health or safety of the other tenants or the landlord or his representatives, or failure of the tenant to accept suitable temporary relocation due to lead-based paint hazard abatement, as set forth in RSA 130-A:8-a, I.
(e) Other good cause.
(f) The dwelling unit contains a lead exposure-hazard which the owner will abate by:
(1) Methods other than interim controls or encapsulation;
(2) Any other method which can reasonably be expected to take more than 30 days to perform; or
(3) Removing the dwelling unit from the residential rental market.
III. If the grounds for eviction is other good cause as set forth in paragraph II(e) of this section, and such cause is based on the actions or inactions of the tenant, members of his family, or guests, the landlord shall, prior to the issuance of the notice to quit, provide the tenant with written notice stating that in the future such actions or inactions would constitute grounds for eviction. Such notice
shall be served in accordance with RSA 540:5 or by certified mail.
IV. A tenant's refusal to agree to a change in the existing rental agreement calling for an increase in the amount of rent shall constitute good cause for eviction under paragraph II(e) of this section, provided that the landlord provided the tenant with written notice of the amount and effective date of the rent increase at least 30 days prior to the effective date of the increase.
V. "Other good cause" as set forth in paragraph II(e) of this section includes, but is not limited to, any legitimate business or economic reason and need not be based on the action or inaction of the tenant, members of his family, or guests.
VI. No tenancy shall be terminated for nonpayment of rent if:
(a) The tenant was forced to take over the landlord's utility payments in order to prevent utility services, which the landlord agreed to provide, from being terminated;
(b) The amount of rent which the tenant is in arrears does not exceed the amount paid by the tenant to maintain utility service to the tenant's premises; and
(c) The tenant has receipts from the utility company or other proof of payment of the amount paid to maintain utility service.  540:2

Notice to Quit:
I. If a nonresidential tenant neglects or refuses to pay rent due and in arrears, upon demand, 7 days' notice shall be sufficient; if the rent is payable more frequently than once in 3 months, whether such rent is due or not, a notice equal to the rent period shall be
sufficient, and 3 months' notice shall be sufficient in all cases.
II. For all residential tenancies, 30 days' notice shall be sufficient in all cases; provided, however, that 7 days' notice shall be sufficient if the reason for the termination is as set forth in RSA 540:2, II(a), (b), or (d).
III. The notice to quit shall state with specificity the reason for the eviction.
IV. If the notice to quit is based on nonpayment of rent, the notice shall inform the tenant of his right, if any, to avoid the eviction by payment of the arrearages and liquidated damages in accordance with RSA 540:9.  540:3

Demand:  Such demand shall be sufficient if made upon the tenant or occupant at any time after the rent becomes due and prior to the service of such notice to quit.  540:4

Service of Demand and Notice to Quit:  Any notice of a demand for rent or a notice to quit may be served by any person and may be served upon the tenant personally or left at
his last and usual place of abode. Proof of service must be shown by a true and attested copy of the notice accompanied by an affidavit of service, but the affidavit need not be sworn under oath.
A notice of a demand for rent shall be sufficient if served upon the tenant at any time after the rent becomes due and prior to the service of a notice to quit.  540:5

Demand of Rent:  Where, to constitute a forfeiture for a violation of the condition of a written lease, a demand of rent is required such demand may be made as provided RSA 540:5.  540:7

Time of:  Such demand may be made when the rent is due or while it is in arrears, but the lessor shall not demand a greater sum than the whole rent in arrears when demand is made.  540:8

Payment After Notice:  No tenancy shall be terminated for nonpayment of rent, utility charges, or any other lawful charge contained in a lease or an oral or written rental agreement if the tenant, before the expiration of the notice, pays or tenders all arrearages plus $15.00 as liquidated damages; provided, however, that a tenant may not defeat an eviction for nonpayment by use of this section more than 3 times in one calendar year.  540:9

Payment by Voucher and Application of Rents Paid by the Municipality:  Any rental payment or partial rental payment tendered by the tenant in the form of a written
promise to pay on behalf of the tenant by a municipality of this state, and any application by the municipality of amounts owed to it by a landlord pursuant to RSA 165:4-a, shall constitute payment by the tenant of the amount represented in the voucher, and of any amount applied by the municipality to delinquent balances of the landlord; provided that this section shall not be construed to obligate a landlord to accept partial rental payments or payments tendered after the expiration of the notice to quit.  540:9-a

Termination by Lessee:  A lessee may terminate his lease by notice in writing, in the same manner as the lessor, and the notice shall have the same effect for all purposes as a notice by the lessor to the lessee.  540:11

Possessory Action:  The owner, lessor, or purchaser at a mortgage foreclosure sale of any tenement or real estate may recover possession thereof from a lessee, occupant,
mortgagor, or other person in possession, holding it without right, after notice in writing to quit the same as herein prescribed.  540:12

Writ; Service; Discovery; Record; Default:
I. A writ of summons may be issued, returnable before a district court, setting forth in substance that the plaintiff is entitled to the possession of the demanded premises, and that the defendant is in possession thereof without right, after notice in writing, to quit the same at a day named therein.
II. The writ shall be accompanied by a notice from the district court, printed in no smaller than 12-point type, informing the tenant that:
(a) If the tenant wishes to contest the eviction, he must file an appearance in the district court no later than the return day appearing on the writ.
(b) The tenant shall not be evicted unless the court so orders; however, such an order may be granted if the tenant does not file an appearance.
(c) At the time the tenant files his appearance, he may request that the court make a sound recording of the eviction hearing by checking an appropriate box on the appearance form.
(d) If the tenant wishes to appeal the district court's decision, he must:
(1) File a notice of intent to appeal with the district court within 7 days of the notice of the district's decision; and
(2) File a notice of appeal in the supreme court within 30 days of the notice of the district court's decision; and
(3) Pay all rent, as it comes due, between the date of the notice of intent to appeal the district court's decision and the final disposition of the appeal.
III. The writ of summons and the notice provided in paragraph II shall be returnable 7 days from the day of service of the writ by the sheriff.
III. The writ of summons and the notice provided in paragraph II shall be returnable 7 days from the date of service of the writ by the sheriff. The writ of summons shall provide an opportunity for the landlord, at the landlord's option, to make a claim for an award of unpaid rent. If the landlord
elects to make a claim for unpaid rent, the court shall consider any defense, claim, or counterclaim by the tenant which offsets or reduces the amount owed to the plaintiff. If the court finds that the landlord is entitled to possession on the ground of nonpayment of rent, it shall also award the
landlord a money judgment. If the court determines that the amount owed by the landlord to the tenant, as a result of set-off or counterclaim exceeds or equals the amount of rent and other lawful charges owed by the tenant to the landlord, judgment in the possessory action shall be granted in favor of the tenant. If the court finds that the tenant's counterclaim exceeds the amount of the nonpayment, a money judgment shall issue in favor of the tenant. Any decision rendered by the
court related to a money judgment, shall be limited to a maximum of $1,500 and shall not preclude either party from making a subsequent claim in a court of competent jurisdiction to recover any additional amounts not covered by the $1,500 judgment.
IV. Both parties shall have a right to engage in discovery prior to the hearing on the merits within such time frame as may be established for eviction actions by the Rules of the District Court.
V. If the tenant files an appearance, a hearing shall be scheduled to occur within 10 days after such filing, with allowance for additional time pursuant to paragraph IV, with notice of the hearing mailed to the parties no fewer than 6 days prior to the hearing. If the tenant fails to file an
appearance or fails to appear at the hearing on the merits, the court shall mail a notice of default to the address set forth on the summons at least 3 days prior to the issuance of the writ of possession.
VI. In deciding any contested hearing, the court shall issue a written decision setting forth the basis for its decision.
VII. In the case of nonpayment of rent, while the possessory action is pending, the landlord may accept payment of the rental arrearage without creating a new tenancy, provided that the landlord informs the tenant in writing of the landlord's intention to proceed with the eviction in spite of the landlord's acceptance of the payment. The landlord may choose not to accept payment and to proceed with the eviction.  540:13

Defense to Retaliation:  Except in cases in which the tenant owes the landlord the equivalent of one week's rent or more, it shall be a defense to any possessory action, as to
residential property, that such possessory action was in retaliation for the tenant:
I. Reporting a violation or reporting in good faith what the tenant reasonably believes to be a violation of RSA 540-A or an unreasonable and substantial violation of a regulation or housing code to the landlord or any board, agency or authority having powers of inspection, regulation or enforcement as to the reasonable fitness of said residential property for health or safety;
II. Initiating an action in good faith pursuant to RSA 540-A or availing himself of the procedures of RSA 540:13-d; or
III. Meeting or gathering with other tenants for any lawful purpose.  540:13-a

Evidence of Intent to Retaliate:  Unless the court finds that the act of the tenant in making a report or complaint or in initiating an action or in organizing relative to alleged violations by a landlord was primarily intended to prevent any eviction, a rebuttable presumption that such possessory action was in retaliation of the tenant's action shall be created when any possessory action, increase in rent or any substantial alteration in the terms of the tenancy is
instituted by a landlord within 6 months after:
I. The landlord received notice of any such alleged violation provided that:
(a) The tenant mailed, gave in hand to, or left at the abode of the landlord notice of the report or complaint of the alleged violation; or
(b) The landlord received notice of the complaint or report from the board, agency or authority; or
II. The landlord completed repairs or otherwise successfully remedied such violation; or
III. The landlord received notice that the tenant had initiated an action pursuant to RSA 540-A; or
IV. The discovery by the landlord of activity protected by RSA 540:13-a, III.  540:13-b

Discretionary Stay Dependent on Payment of Rent:
I. If the defendant defaults, or confesses judgment, or if on trial the court rules that the landlord has sustained his
complaint, judgment shall be rendered that the landlord recover possession of the premises and costs. A writ of possession shall be issued, provided that, the court may order the tenant shall not be dispossessed until a date not later than 3 months from such default, confession of judgment, or
ruling of the court, provided the court decides that under all the circumstances justice requires such stay, based on the reasonableness and good faith of the parties in their respective reports, complaints, demands, and evidence. In the event of any such stay of dispossession, the tenant shall
pay the landlord weekly in advance the weekly former rent, or the proportional weekly part of the former rent if rent was payable less often than weekly, and on default of any such advance weekly payment a writ of possession shall be issued and the sheriff shall evict the tenant as soon as possible.
II. Nothing in this section shall be construed to prohibit the parties in a case of nonpayment of rent from agreeing that, in spite of judgment for the plaintiff, a writ of possession shall not be issued, if the defendant makes payments in accordance with a schedule designated in the agreement.
However, if such payments are not made when due, a writ of possession shall be issued upon request of the plaintiff.  540:13-c

Defenses to Violations of Fitness:
I. No action for possession based on non-payment of rent shall be maintained in regard to any premises leased or rented for residential purposes, other than for vacation or recreation, if such premises are in substantial violation of the standards of fitness for health and safety set forth in RSA 48-A or in local codes, ordinances or bylaws established pursuant  thereto, and such violation materially affects the habitability of said premises, provided that:
(a) The tenant proves by clear and convincing evidence that, while not in arrears in rent, he provided notice of the violation to the person to whom he customarily pays rent; and
(b) The landlord failed to correct the violations within 14 days of the receipt of such written notice or, in an emergency, as promptly as conditions require; and
(c) The violations were not caused by the tenant, a member of the tenant's family or other person on the premises with the tenant's consent; and
(d) Necessary repairs have not been prevented due to extreme weather conditions or due to the failure of the tenant to allow the landlord reasonable access to the premises.
II. If a defendant raises a defense provided in paragraph I of this section, the court may order the action continued for a reasonable time not to exceed one month to enable the plaintiff to remedy the violation. At the time such continuance is ordered, the court shall require the person claiming a defense under this section to pay into court any rent withheld or becoming due thereafter as it becomes due. Upon a finding by the court that the violation has been remedied within the continuance period, the court shall dismiss the possessory action and either award the withheld rent money to the plaintiff or apportion the rent paid into court by paying to the plaintiff the fair rental value of the premises while in the substantially defective condition and by awarding the remainder of said funds to the defendant as damages for plaintiff's breach of his warranty of  habitability. If the violation has not been remedied within such period, the court shall enter judgment for the defendant and refund to the defendant all money deposited. 540:13-d

Judgment:
I. If the defendant makes default, or if on trial it is considered by the court that the plaintiff has sustained his complaint, judgment shall be rendered that the plaintiff recover possession of the demanded premises and costs, and a writ of possession shall issue. The judgment may be enforced, at the sole discretion of the plaintiff, either by directing the sheriff to serve the writ of possession or by seeking judicial relief against the defendant for civil contempt. A writ of possession shall authorize the sheriff to remove the defendant from the premises.
I. If the defendant makes default, or if on trial it is considered by the court that the plaintiff has sustained its complaint, judgment shall be rendered that the plaintiff recover possession of the demanded premises and costs, and a writ of possession shall issue. In cases based on nonpayment
of rent, the court shall state the actual amount of the tenant's current weekly rent or, if rent is not paid on a weekly basis, the equivalent weekly rent amount, which must be paid into the court if an appeal is taken pursuant to RSA 540:20 and 540:25. The judgment may be enforced, at the sole
discretion of the plaintiff, either by directing the sheriff to serve the writ of possession or by seeking judicial relief against the defendant for civil contempt. A writ of possession shall authorize the sheriff to remove the defendant from the premises.
II. Whenever the tenant successfully raises the defense of retaliation pursuant to RSA 540:13-a, damages of not more than 3 months' rent may be awarded to the tenant.
III. If the plaintiff makes a successful claim for unpaid rent as well as possession, or the defendant makes a successful counterclaim, the court shall issue a money judgment at the same time that it makes its ruling regarding possession of the premises.  540:14

Neglect to Enter, etc:  If the plaintiff neglects to enter his action, or fails to support it, judgment shall be rendered for the defendant for his costs.  540:15

General Issue:  Under the general issue, the defendant shall not offer evidence which may bring the title to the demanded premises in question.  540:16

Hearsay Exception:  In any possessory action based on allegations concerning the behavior of the defendant or his family or guests, records of complaints made by other tenants to the landlord or his agent concerning such behavior shall be competent evidence if:
I. The landlord or other qualified witness testifies to its identity and the mode of its preparation;
II. It was made at or near the time of the receipt of the complaint; and
III. In the opinion of the court, the sources of information, method and time of preparation, and proximity in time of the complaint to the alleged tenant behavior, were such as to justify its admission.  540:16-a

Plea of Title, Recognizance:  If the defendant shall plead a plea which may bring in question the title to the demanded premises he shall forthwith recognize to the plaintiff, with sufficient sureties, in such sum as the court shall order, to enter his action in the superior court for the county at the next return day, and to prosecute his action in said court, and to pay all rent then due or which shall become due pending the action, and the damages and costs which may be awarded against him.  540:17

Effect of Plea, etc:  After the filing of such plea and the entry of such recognizance no further proceedings shall be had before the municipal court, but the action may be entered and prosecuted in the superior court in the same manner as if it were originally begun there.  540:18

Neglect to Recognize:  If the defendant neglects or refuses to recognize, judgment shall be rendered against him in the same manner as if he had refused to make answer to the suit.  540:19

Appeal:  RSA 540:20 effective until January 1, 1999; see also RSA 540:20 set out below. Any party to an action brought pursuant to this chapter shall, within 7 days of the
notice of judgment date, file in the district court notice of intent to appeal to the supreme court. Said appeal shall otherwise be filed in accordance with supreme court rule. In all other respects, the judgment of the district court shall be final at the expiration of the appeal period.  540:20

TITLE 55
Proceedings in Special Cases
CHAPTER 540
Actions Against Tenants

Appeal: RSA 540:20 effective January 1, 1999; see main volume for text of RSA 540:20 as effective prior to January 1, 1999. Any party to an action brought pursuant to this chapter shall, within 7 days of the date of the notice of judgment, file in the district court a notice of intent to appeal to the supreme court. Until the appeal is perfected by the filing of a notice of appeal in the supreme court, the district court shall retain exclusive jurisdiction of the case. After the filing of the notice of appeal in the supreme court, the district court shall retain jurisdiction of the matter for the purposes of collecting rent pending appeal. In all other respects, the judgment of the district court shall be final at the expiration of the appeal period.  540:20

Neglect to Enter Appeal:  If the appellant neglects to enter his appeal or to produce such copies the court, on complaint of the appellee, shall affirm the former judgment, with additional damages and costs.  540:22

Plaintiff's Damages:  If a defendant files a plea of title or appeals, and the plaintiff recovers judgment against the defendant, the court shall cause plaintiff's damages, exemplary or otherwise, including a just compensation for the use and detention of the property and for any injury
thereto, to be assessed and may issue execution therefor, or the same may be recovered on the recognizance taken as before provided.  540:23

Recognizance, by Plaintiff:  The plaintiff, before his appeal is allowed, shall recognize to the defendant, with sufficient sureties, in such sum as the court may order, to enter and prosecute his appeal, and to pay such costs as may be awarded against him.  540:24

Recognizance, by Defendant:  RSA 540:25 effective until January 1, 1999; see also RSA 540:25 set out below. The defendant shall pay into court or to the plaintiff, as the
court directs, all rents becoming due from the date the notice of intent to appeal is filed with the district court. In any case in which the duty to pay rent or a portion thereof is in dispute, the defendant shall be required to pay such portion of the rents becoming due after the notice of intent is filed into court, as the court may direct, which amounts shall be held by the court in escrow until a final decision is rendered. After such decision has been rendered, the escrowed rent money and any accrued interest thereon shall be apportioned between plaintiff and defendant on the basis of a
finding of rent actually due. For the purpose of this section, "rent" shall mean the amount of money called for by the lease or rental agreement at the time the action for possession was instituted.  540:25

TITLE 55
Proceedings in Special Cases
CHAPTER 540
Actions Against Tenants

Recognizance, by Defendant:   RSA 540:25 effective January 1, 1999; see main volume for text of RSA 540:25 as effective prior to January 1, 1999.
I. If the possessory action was instituted on the basis of nonpayment of rent, and the defendant files a notice of intent to appeal, the defendant shall pay into court the current rent in an amount determined by the judgment of the court pursuant to RSA 540:14, I, weekly and in advance. Payment of rent for one week must be made at the time the defendant files notice of intent to appeal in the district court. Rent which had been payable on other than a weekly basis shall be paid to the court each week based on the equivalent weekly rent determined by the judgment issued by the court, pursuant to RSA 540:14, I.

During the pendency of the appeal, rent is payable on a weekly basis and is due on the same day of the week on which the notice of intent to appeal was filed. If rent is not paid by the due date, the court shall immediately mail a notice of default to the tenant and issue a writ of possession to the
landlord. If, however, the tenant pays the clerk the entire amount of rent due since the filing of the notice of intent to appeal prior to the service of the writ by the sheriff, the writ of possession shall be recalled and the appeal shall be reinstated. Unless the appeal is reinstated, the district court shall vacate the appeal and award the plaintiff the rent money that has been paid into court. When the final decision on appeal is rendered, the money paid into court shall be apportioned between the plaintiff and the defendant, based on the amount of rent which is found to be due and owing as a
result of the appeal.

II. If the possessory action was instituted for a reason other than nonpayment of rent, the defendant shall pay into court or to the plaintiff, as the court directs, all rents becoming due from the date the notice of intent to appeal is filed with the district court. In any case in which the duty to pay rent or a portion thereof is in dispute, the defendant shall be required to pay such portion of the rents becoming due after the notice of intent is filed into court, as the court may direct, which
amounts shall be held by the court in escrow until a final decision is rendered. After such decision has been rendered, the escrowed rent money and any accrued interest thereon shall be apportioned between plaintiff and defendant on the basis of a finding of rent actually due. For the purpose of this section, "rent" shall mean the amount of money called for by the lease or rental agreement at the time the action for possession was instituted.  540:25

Other Remedies:  Nothing in this chapter shall be construed to prevent a landlord from pursuing his legal remedy at common law.  540:26

Landlord's Grantee:  Whenever the estate occupied by a tenant at will or sufferance is conveyed by the landlord his grantee shall have the rights and remedies which the
grantor would have had, under the provisions of this chapter, if the estate had not been conveyed.  540:27

Lease Provisions:  No lease or rental agreement, oral or written, shall contain any provision by which a tenant waives any of his rights under this chapter, and any such waiver shall be null and void.  540:28

Conflict of Laws:  Any provisions of federal law relating to rental units owned, operated or subsidized by the federal government which are inconsistent with or contrary to the provisions of this chapter shall supersede the provisions of this chapter. Where not inconsistent, the provisions of federal law shall apply in conjunction with the provisions of this chapter. 540:29                                

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