By Attorney Patrick Arnold
I signed my first apartment lease around 2001. I took some time to read through the several-page contract. Admittedly, many of the provisions seemed unfamiliar beyond the term of the lease, the rent amount and due date, and the early termination section. Do these notice requirements matter? How about the few lines detailing the landlord’s right to enter to make necessary repairs, or the provision about not making major alterations before getting the landlord’s approval? Despite not being familiar with some of the lease provisions, I rented that apartment without having any problems or issues with the landlord before moving elsewhere a couple years later.
Fast forward fifteen years. Though I tend to represent landlords more frequently than not these days, I have also represented my fair share of tenants over the years. Here are some important and somewhat common rules that New Hampshire landlords must follow to avoid complicating an eviction and adding costs and fines to their business’ bottom line.
Landlords must follow statutory eviction procedures
In some areas of the law, there is flexibility between parties who enter in a contract. This is not one of them. State law requires landlords to follow very specific procedures in order to lawfully evict a tenant. That means that the landlord must provide certain notices to the tenant, and in some cases, give the tenant the opportunity to fix whatever the problem is (e.g., bring their rent current). Moreover, if the tenant doesn’t remedy the situation, the landlord must seek help from the court by filing an eviction action and the tenant will have the right to contest the eviction. Sometimes the process is longer than a landlord would like, but if the specific procedures are not followed, the Court can summarily dismiss the matter and force the landlord to begin the process again.
Landlords may not deny the tenant access to the rented premises except through proper judicial process
What does this mean? It means unless the tenant relinquishes possession or legally abandons the premises, the landlord may not change the locks to the tenant’s apartment or leased premise until the court issues a writ of possession. Not only is this type of “self-help” not constructive, it is also illegal and can expose the landlord to some steep financial penalties. The best practice for a landlord is to follow the legal process carefully and swiftly to avoid running into any trouble that can complicate getting a problem tenant out.
Landlords may not willfully interrupt or terminate a tenant’s utility services
A landlord may not willfully interrupt or terminate a tenant’s utility service (e.g., water, heat, electricity, etc). Consider a situation where utilities are included in the tenant’s rent and the tenant falls behind on payments to the landlord. The landlord may think it is okay to incentivize payment by temporarily interfere with the tenant’s utilities until they make their rental payment. That’s a no-no, and the landlord will similarly face steep fines if the court finds that a landlord engaged in this conduct. Furthermore, I would caution any landlords who think a tenant’s utility service might ever, by coincidence, just happen to be interrupted after the tenant falls behind on their rent. Direct or indirect interruption of a tenant’s utility service will throw the landlord into hot water in court, so forget about giving a wink and nod to your maintenance personnel in hopes of facilitating compliance from a tenant.
Landlords must follow rules concerning safekeeping of the tenant’s property, even after the eviction
Landlords may not willfully seize, hold, or deny a tenant access to the tenant’s property – either directly or indirectly – without proper judicial process. Maybe you provide your tenant the option for a secure storage unit on the premises. If the tenant falls behind on their rent, it is not acceptable to hold the tenant’s property hostage until they bring their rent current. There are some nuances relating to this rule, but the general rule to follow is don’t mess with a tenant’s property. Also, state law requires a landlord to maintain and exercise reasonable care in storage of the tenant’s personal property for at least seven (7) days after the tenant vacates the premises. So even if you obtain a writ of possession from the court, and then change the locks to the apartment, don’t toss the tenant’s property right away.
Landlords may not circumvent statutory protections through lease provisions
Lastly, lawmakers have specifically passed legislation to prohibit conduct described above. These rules are the law. They cannot be waived or limited by agreement. The landlord may not limit the advance notice that must be given to a tenant to evict them. These notice requirements are set by statute. Any clever provision in your lease agreements purporting to limit a tenant’s rights in this regard will be void.
So what happens if a landlord engages in an illegal eviction procedure or prohibited practice. For starters, it will likely take much longer for the landlord to evict a difficult tenant. Additionally, most prohibited practices constitute a violation of the New Hampshire Consumer Protection Act. That means that a violator will be responsible to pay the prevailing party at least $1,000 plus the prevailing party’s legal fees. Sound steep? It is. The Legislature has placed such a priority on deterring these practices that it has made the penalties for a violation extremely costly to the violator.