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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