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Bar News - March 18, 2011


SB44: Evictions without Evidence

By:

The NH Legislature will soon be considering Senate Bill 44 (SB 44). If SB 44 passes, many residential tenants will lose their homes without any evidence of wrongdoing, and without any hearing in court. SB 44 dramatically alters landlord/tenant law by requiring a tenant to pay rent money into NH District Courts, or else be automatically evicted. Does anyone remember something called "due process"?

Under SB 44, money must be paid to the court in order for a tenant to even file an appearance. If the tenant does not have money when he/she must file an appearance, it means automatic eviction. After filing an appearance, the tenant must continue to pay money into court on a weekly basis until the case is heard and judgment issued, and if even one payment is missed, it means automatic eviction. This applies to all evictions—not just those based on non-payment of rent.

The amount of money payable into the court is unilaterally determined by the landlord, without the tenant having any ability to challenge it. The tenant may have already paid rent for the month when the appearance is due, the tenant might dispute the landlord’s rent calculations, or the tenant may even have a basis to deduct rent – it simply doesn’t matter. If the tenant doesn’t pay what the landlord tells the court is due, the tenant is automatically evicted, and without any evidence of wrongdoing.

Even more troubling is that landlords may not have adequately followed applicable eviction law procedures. That doesn’t matter, either. Landlords may not even have a good case on the merits to evict a tenant. That doesn’t matter. SB 44 requires no evidence; it only requires that tenants make landlord-determined payments into court on a weekly basis, or face the loss of his/her home.

The idea that a tenant with a meritorious defense could be precluded from ever presenting it to a judge because he or she can’t come up with a week’s rent when due, is an assault on due process. Indeed, basic due process is so lacking in SB 44 that the tenant doesn’t even get to address the court as to why the required rent wasn’t paid. This is a marked contrast to the law in many other states that have a similar requirement. Typically, in such states, the landlord files a motion to have the rent paid into the court while the case is pending, and the tenant gets the opportunity to appear and object.

Because SB 44 makes the NH District Courts handle these payments, along with the voluminous inevitable questions and complaints, there will be greater administrative and financial stress on an already strapped court system. Supporters of SB 44 believe this stress is magically alleviated by allowing the NH District Courts to take 10 percent of the alleged "rent" money that comes in. This 10 percent belongs to either the landlord or the tenant (if, after hearing on the merits, the court determines that the tenant did not actually owe the money). Not only could this be deemed a taking, we doubt this alone will serve as an adequate compensation for an already over-worked court staff.

SB 44 is not only fundamentally unfair to tenants, it is fundamentally unfair to the men and women of our court system. If you can remember something called "due process," and if you worry about what this will do to our courts, please join us in opposing SB 44. Thank you.

Elliott Berry and Daniel Feltes are staff attorneys at NH Legal Assistance.

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