Bar News MastheadBy Scott Merrill

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.”

The emergency order makes it clear that all evictions during the state of emergency are prohibited.

On April 3rd, however, Governor Sununu issued Emergency Order #24 that does allow landlords to “initiate eviction proceedings against tenants who cause damage to property or who present a threat to the health and safety of their neighbors.”

Brian Shaughnessy, an attorney with expertise in landlord tenant issues, explained that Emergency Order #24 does not, however, apply to a tenant’s right to quiet enjoyment.

“Emergency order 24 does not allow for evictions where the tenant is making noise,” Shaughnessy said,  “since that does not necessarily arise to the level of affecting the health or safety of other tenants, and certainly is not substantial damage to the premises which is the subject of emergency order 24.”

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 are still taking these cases.”

Shaughnessy, who is President of The New Hampshire Bar Association’s Pro Bono program, issued a letter to his clients on April 2nd that clarifies Emergency Order #4 and provides guidance for both landlords and tenants.

In the letter Shaughnessy writes:

“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.”

Another issue that Shaughnessy identified as causing confusion is whether the emergency order applied to hotels, motels, or rooming houses, because these entities are treated differently and are excluded from having to file an eviction action under the landlord tenant eviction law.

The Attorney General’s office has confirmed that the order does cover rooming houses, but Attorney Shaughnessy believes it does not cover motels and hotels absent a long term rental agreement.

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), the Legal Advice Referral Center (LARC), and the New Hampshire Bar Association’s Pro Bono Program. Qualified lower income residents can ask questions on Free Legal Answers which will be answered by Pro Bono attorneys.

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 NHLA, LARC and The Bar Association’s Pro Bono Program remain committed to fielding questions and offering legal advice to individuals who can’t afford it. To obtain assistance, call LARC at 800-639-5290, or visit their website at www.nhlegalaid.org.