Property Law-Leases

Shenanne Tucker

Shenanne Tucker
Practiced law in
New Hampshire and Maine since 2002,
and currently is
predominantly privately employed working
in insurance.

An appeal from the 6th Circuit Court-Hillsborough District Division No. 2018-0141

Nov. 22, 2019

Vacated and remanded.

  • Whether the failure to repair a tenant’s heating system violated RSA 540-A:3, I and RSA 358-A:10 when the tenant notified the landlord multiple times that the unit was not working but the landlord supplied an alternative heat source.

The defendant sought appeal after being ordered to pay $66,000 in damages to his tenant under RSA 540-A:3, I and RSA 358-A:10, I regarding an alleged no-heat situation. The plaintiff cross-appealed the denial of her motion to reconsider the calculation period.

On appeal, the Court reviewed to determine “whether the evidence presented to the trial court reasonably support[ed] its findings, and then whether the court’s decision is consonant with applicable law.” The Court noted similarities with the facts in Randall v. Abounaja, 164 N.H. 506 (2013), namely, that the plaintiff had notified the defendant of the no heat situation beginning in September 2016 and had advised on many occasions that the condition persisted. Nevertheless, the no heat situation continued unremedied at the time of the November 3, 2017 temporary order on the plaintiff’s RSA 540-A petition, and up to plaintiff’s move out on January 1, 2018. The defendant’s maintenance personnel had come out in November 2016 without fixing the issue so the defendant supplied a space heater for use by the plaintiff. The defendant believed that the system just needed propane which was to be supplied by the plaintiff until, in December 2018, the defendant consulted with a technician in December 2018 who found the system was inoperable. Holding that “a landlord’s willful failure to repair a tenant’s utility service after being put on notice of a defective service is sufficient to constitute ‘willful interruption’ of that service under RSA 540-A:3, I,” the Court also noted that the defendant’s willful failure to repair the original heat source may not mean that he willfully interrupted the tenant’s heat. Instead, the determination into whether the defendant willfully interrupted the plaintiff’s heat in violation of RSA 540-A:3, I required an examination into whether or not “the space heater [the defendant] provided was an adequate alternative source of heat.” The Court did not reach the issue of enhanced damages other than to confirm that enhanced damages must be supported by a willful or knowing violation of the consumer protection act itself, and did not reach the plaintiff’s cross-appeal as it was rendered moot by the Court’s remand.

Accordingly, the Court vacated the trial court’s damage award and remanded for further determinations.

Law Office of Kyle McDonald, Esq. P.L.L.C. of Concord (Kyle McDonald on the brief and orally), for the plaintiff.

Courteous Law, PC of Henniker (Deb Bess Urbaitis on the brief and orally), for the defendant.