N.H. Rev. Stat. § 540-A:4

Current through Chapter 381 of the 2024 Legislative Session

Section 540-A:4 - [Effective 1/1/2025] Remedies

I. All district courts shall have concurrent jurisdiction with the superior court to enforce the provisions of RSA 540-A:2 and RSA 540-A:3.

II. Any tenant or landlord or non-rental owner shall have the right to seek relief from a violation of RSA 540-A:2 or RSA 540-A:3 by filing a petition in the district or county where the rental premises are located.

II-a. Nothing in this section shall be construed to extinguish any common law remedies, including self-help, available to a non-rental owner.

III. No filing fee shall be charged for a petition under paragraph II, and the plaintiff may proceed without legal counsel. Either a peace officer or the sheriff's department shall serve process under this section and the cost of such service shall be billed as directed by the court pursuant to paragraph X. Any proceeding under this subdivision shall not preclude any other available civil or criminal remedy.

IV. The clerks of the district courts shall supply forms for petitions for relief under this subdivision designed to facilitate proceedings.

V. The findings of facts shall be final but questions of law may be transferred to the supreme court in the same manner as from the superior court.

VI. The court shall hold a hearing within 30 days of the filing of a petition under paragraph II or within 10 days of service of process upon the defendant, whichever occurs later. In cases in which a landlord or non-rental owner alleges a violation of RSA 540:3, IX, a hearing shall be held within 48 hours, provided that service of the petition was made at the abode or in hand on the day the court entered the petition. If the return of service does not show same day service, the hearing shall be held within 48 hours from the date of service. The court may continue the hearing at the request of the plaintiff, or for compelling necessity established by the defendant. If the property is the personal residence of a non-rental owner, and the defendant requests a continuance, upon granting such a continuance, the court shall issue temporary orders requiring the defendant to vacate or be removed from the real estate pending the hearing on the merits. The court shall make its best efforts to render a decision on the matter the same day as of the hearing on the merits.

VII. Upon a showing of a violation of RSA 540-A:2 or RSA 540-A:3, I, II, or III, the court shall grant such relief as is necessary to protect the rights of the parties. Such relief may include:

(a) An order prohibiting the defendant from continuing the activity or activities which violate RSA 540-A:2 or RSA 540-A:3; and

(b) An award of damages to the plaintiff for the violations of RSA 540-A, breach of warranty of habitability, breach of the covenant of quiet enjoyment or any other claim arising out of the facts alleged in the plaintiff's petition.

(c) For purposes of RSA 540-A:3, IX:

(1) When the defendant claims to be a subtenant or an implied tenant, the defendant shall bear the burden of proof to establish such status. Evidence to prove tenancy may include, but is not limited to:

(A) An unexpired written lease signed and dated by the tenant and landlord or the tenant and landlord's agent;

(B) A copy of canceled checks or money orders dated within one month of date-of-offer of such proof, indicating it was paid to the landlord or landlord's agent and which was made by, or on behalf of, the tenant;

(C) A copy of cash rent receipts dated within one month of date-of-offer of such proof, that was signed and dated by the landlord or landlord's agent;

(D) Written proof of rent payment made within one month of date-of-offer of such proof from Venmo, ACH payment, EFT payment, or other electronic direct payment methods to the account of the landlord or landlord's agent; or

(E) Copy of emails, texts, or other electronic messages which when taken together establish an agreement between the landlord or landlord's agent that the occupant may reside at the premises.

(2) This subparagraph shall not be construed to prevent an occupant claiming to be an implied tenant from presenting evidence in support of their claim that based on the totality of the circumstances the landlord, landlord's agent, or non-rental owner impliedly agreed to allow the occupant to reside at the premises.

(3) By itself, evidence of utilities, other services, IDs, or documents showing the address of the residence shall not be sufficient evidence without authorizing documentation from the lessor or the non-rental owner.

(4) In all cases if the court rules in favor of the plaintiff, the court shall order the immediate removal of the unauthorized occupants by law enforcement and the plaintiff shall be awarded actual damages or $1000, whichever is greater.

(5) If the court finds that the occupant sublet from the tenant but the lease between the landlord and the tenant prohibits subletting, and the occupant failed to establish being an implied tenant, the plaintiff may dispose of any remaining personal property as they see fit after 48-hours notice to the occupants. Notwithstanding RSA 540-A:4, VII(c)(4), in such cases damages shall not be awarded to the plaintiff.

(6) In all other cases of non-rental property and rental property, plaintiff may dispose of any remaining personal property as they see fit and without notice to the occupants and occupants may be arrested for trespass.

(7) If the court rules in favor of the occupants, then the occupants shall not be removed from the premises. Such ruling shall be without prejudice to any subsequent possessory action filed pursuant to RSA 540.

VIII. Upon the showing of an immediate threat of irreparable harm, the court may issue such temporary orders as it deems necessary to protect the parties with or without actual notice to the defendant. If temporary orders are made ex parte, the party against whom such relief is issued may file a written request with the clerk of the court and request a hearing on such request. Such hearing shall be held no later than 5 days after the request is received by the clerk. Such hearings may constitute the final hearing described in paragraph VI.

IX.

(a) Any landlord or tenant who violates RSA 540-A:2 or any provision of RSA 540-A:3 shall be subject to the civil remedies set forth in RSA 358-A:10 for the initial violation, including costs and reasonable attorney's fees incurred in the proceedings. Each day that a violation continues after issuance of a temporary order shall constitute a separate violation.

(b) Notwithstanding the provisions of subparagraph (a), a landlord who violates RSA 540-A:3, VII shall be subject only to an award of actual damages, plus costs and reasonable attorneys fees.

(c) The provisions of subparagraph (a) shall not apply to petitions brought in good faith by a landlord or a tenant to determine whether a request for entry under RSA 540-A:3, V is reasonable and lawful.

(d) The provisions of subparagraph (a) shall not apply to any violation of 540-A:3, V-a, V-b, or V-c.

(e) Landlord damages for any unlawful dispossession or lock-out of a tenant from the premises where the landlord has re-let the premises or has a new tenant in the premises shall not be less than $3,000. In the event the damages exceed the $3,000 minimum, the award shall not exceed the amount that would have been awarded pursuant to subparagraph (a).

(f) Notwithstanding the provisions of subparagraph (a), a landlord who violates RSA 540-A:3, VIII shall be subject only to returning to the applicant all monies provided by the applicant as part of their application, plus court costs.

(g) If the court finds that the plaintiff's allegation of a violation of RSA 540-A:3, IX was not made in good faith, the defendant shall be awarded actual damages or $1000 whichever is greater.

X. If an action initiated under RSA 540-A:3 is found to be frivolous or brought solely for harassment, the plaintiff shall pay to the defendant the costs of said action including reasonable attorney's fees. If such frivolous action was brought by the tenant, he shall not be entitled to the protection of paragraph XI of this section.

XI. No action for possession may be maintained by the landlord against a tenant who proves a violation of RSA 540-A:3 except for nonpayment of rent, violation of a substantial obligation of the rental agreement or lease, or violation of this subdivision within 6 months of an action instituted under this subdivision by a tenant; nor shall the landlord take any other action in reprisal.

XII. Relinquishment of possession or abandonment of possession shall be an affirmative defense to an action brought pursuant to this chapter.

(a) Relinquishment of possession occurs when the landlord receives a statement signed by each adult tenant of a rented or leased premises stating that the tenant has relinquished possession of the rented or leased premises and has no intent to return.

(b) Abandonment of possession means all tenants have physically vacated the premises without the intent to return. There shall be a rebuttable presumption that the tenants have abandoned the premises if:

(1) The landlord provided all tenants with a written property abandonment notice, by leaving the notice at the rented or leased premises and by sending the notice by certified mail to the last known address of at least one adult tenant. The property abandonment notice shall also comply with subparagraph (d); and

(2) At least 2 of the following conditions were present:

(A) All adult tenants of the rented or leased premises have notified the landlord in writing of their intent to vacate the premises by a certain date and that date has passed, provided that the written notice of one adult tenant who has lawful possession to the premises pursuant to an order under RSA 173-B shall suffice.

(B) All keys to the rented or leased premises have been returned to the landlord, which shall include leaving all keys in the rented or leased premises.

(C) The tenant or tenants have removed from the rented or leased premises all or the majority of their personal property, and the only items remaining in the premises are inconsistent with the continued use of the premises.

(D) The tenant or tenants have failed or neglected to pay rent for the rented or leased premises for a period of more than 91 days, provided that during those 91 days the landlord, if requested to do so, provided ordinary and reasonable verification of rental information to any agency assisting the tenant or tenants, and that the landlord did not refuse to accept payment on behalf of the tenant or tenants by any agency offering assistance.

(c) The defense of abandonment does not abrogate the landlord's duty under RSA 540-A:3, VII to maintain and exercise reasonable care in the storage of the personal property of tenants who have vacated the premises for a period of 7 days after the date upon which such tenants have vacated the rented or leased premises. The 7 days shall begin the day after the landlord serves the written property abandonment notice.

(d) In providing the property abandonment notice required under subparagraph (b), the landlord shall use conspicuous language identifying, with specificity, the reasons the landlord deems the property abandoned. The notice shall also advise the tenant or tenants of their right to retrieve any personal property as well as their right to file an action under RSA 540-A. The notice must be signed by the landlord, or the landlord's agent. The use of the following notice language, in at least 12-point type, shall be deemed sufficient notice language:

NOTICE OF PROPERTY ABANDONMENT

This residence, known as __________________________, has been abandoned. I certify that, on this date, the property is believed to have been abandoned for the following circled reasons:

(1) You notified me in writing that you intended to vacate the premises.

(2) You have returned your keys to the premises.

(3) You have removed from the premises all or the majority of your personal property, and the only items remaining in the premises are inconsistent with the continued use of the premises.

(4) You have failed or neglected to pay rent for the premises for a period of more than 91 days.

Because you have abandoned the premises, we will retake possession of this property and the locks may be changed. We will store your personal property for 7 days from the date of the notice, and you have a right to get your personal property during that time.

If you disagree with any action we take, you should notify us immediately. You are also entitled to file what is called a "540-A petition" at your nearest court. You may have other additional legal rights as well.

Signed: ________________________________________ Date: Landlord's or Landlord's Agent's Mailing Address: Landlord's or Landlord's Agent's Telephone Number:

RSA 540-A:4

Amended by 2024, 370:7, eff. 1/1/2025.

Amended by 2024, 370:6, eff. 1/1/2025.

Amended by 2024, 370:5, eff. 1/1/2025.

Amended by 2024, 46:2, eff. 1/1/2025.

Amended by 2013 , 237: §§1, 2 eff. 1/1/2014.

Amended by 2013 , 48: 8, eff. 1/1/2014.

Amended by 2011 , 247: 2, eff. 1/1/2012.

1979, 305:1. 1985, 100:4, 5. 1990, 218:1. 2003, 271 : 2 , eff. Jan. 1, 2004. 2010, 116 : 1 , eff. June 1, 2010. 2011, 247 : 2 , eff. Jan. 1, 2012. 2013, 48 : 8 , 237:1, 2, eff. Jan. 1, 2014.

This section is set out more than once due to postponed, multiple, or conflicting amendments.