By Scott Merrill
NH Bar News
On March 17, 2020 Governor Sununu issued Emergency Order #4. The order prohibits the initiation of eviction proceedings for the duration of the State of Emergency.
RSA 540 is the law providing the legal framework for eviction proceedings and according to the Governor’s Emergency Order, “all applicable provisions of RSA 540 or any law, rule or other regulation which would allow for the initiation of eviction proceeding or the issuance of an eviction order are hereby suspended for the duration of the State of Emergency.”
While the order is clear about the prohibition on evictions due to a failure to pay during the state of emergency, it does not cover other situations such as “upsetting the quiet” and it doesn’t mean tenants will not need to repay their rent at a later date.
Landlord tenant Attorney Brian Shaughnessy issued a letter to his clients on April 2nd that clarifies the emergency order and provides guidance for both landlords and tenants.
According to the letter: “While there are many plans being discussed that may provide financial assistance for rent and mortgage payments, this emergency order does not remove the tenant’s obligation to pay rent, it only suspends a landlord’s ability to start an eviction during the state of emergency.”
The order, in other words, does not “relieve” an individual of their obligations to pay rent or to make mortgage payments.
“The purpose of this letter is to correct a common misperception that tenants do not have to pay rent and landlords do not have to pay the mortgage and other expenses associated with operating the property,” Shaughnessy said. “We anticipate that some tenants may need to arrange payment plans, or otherwise wait until some Government assistance is made available in order to make the required rental payments. We are willing to work with our tenants in order to get through this unprecedented emergency and are asking for our tenants to cooperate with us in good faith as we all get through this together.”
Landlords, according to Shaughnessy, will be able to demand any back rent they have accumulated after the expiration of Emergency Order 4. New Hampshire law, he said, allows a landlord to proceed with an eviction if the demanded rent is not paid within 7 days.
“Whether a landlord choses to start the eviction process right away, or work with the tenant through a payment plan, will depend on many factors,” Shaughnessy said, “including the amount of the back rent owed, and the good faith efforts made by the tenant to keep current or enter into payment plans with the landlord.”
The mere acceptance of a late or partial payment of rent, without entering into a written payment agreement that provides more time for the full payment of any rental arrearage, will not be a waiver of any rights the landlord has to move forward with an eviction action once the State of Emergency is lifted, or any rights the landlord has under the rental agreement and state law.
There are certain situations, according to Shaughnessy where evictions could be carried out immediately but the legal consequences are still unclear, he said, due to the stay in place order.
“If someone has an AK-47 and they’re a threat. The landlord needs to be able to do something,” he said.
Other cases that fall under “disturbing the peace” could also be grounds for eviction according to Shaughnessy. Legally, the term for this is “upsetting the quiet” and it includes loud noise, by fighting or other antisocial behavior which frightens or upsets people. It is a misdemeanor, punishable by fine or brief term in jail.
“It’s not clear to me whether one can “upset the quiet” right now,” Shaughnessy said, adding, “I would tell a landlord to carry out an eviction and they may get relief at a later date. The emergency order only talks about evictions based on non-payment.”
In domestic violence cases, according to Attorney Elliot Berry, “The victim can get an order removing her abuser by filing a DV petition in the circuit court, which is still taking these cases.”
Another issue that Shaughnessy is concerned about are tenants staying at hotels, motels and rooming houses who are not provided with the same protections under landlord tenant law.
Questions about landlord tenant issues have produced a steady number of calls about the current legal uncertainties and questions that people in the Granite state are having. They are currently being handled by groups such as New Hampshire Legal Assistance (NHLA) and the Legal Advice Referral Center (LARC) in Concord.
The umbrella group for these organizations is the New Hampshire Campaign for Legal Services (NHCLS).
Today they issued a statement outlining the challenges ahead as well as the strong network of support that New Hampshire’s legal aid community provides. The statement reads:
“Our communities, our state and our nation face profound economic uncertainty caused by the COVID-19 crisis. NHLA and LARC are preparing for a surge in demand that may exceed what we experienced during the Great Recession. As more people fall into poverty, the economy suffers, often leading to state and local budget cuts; at the same time, more people struggle to meet their basic needs and require legal assistance to protect themselves and their families. Our clients face impossible, sometimes dangerous, decisions: Do they pay for food, or medicine, or to keep the lights on? Stay with an abuser, or face life in homelessness?”
While questions such as these are growing on a daily basis the New Hampshire Campaign for Legal Services remains committed to fielding questions and offering legal advice to individuals who can’t afford it.
Their website is www.nh-cls.org.
These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org