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Bar News - January 18, 2017


Morning Mail: Clarifying Holding Mentioned Last Month

The holding of Evans v. J Four Realty LLC (NH 2013) as described in the article entitled, “The Business of Mortgage Foreclosure: Evolving Law Follows Economic Downturn” (NH Bar News, 21 Dec 2016, p. 29) needs clarification. The new property owner (a buyer at foreclosure) used self-help to evict a tenant at sufferance. As indicated in the article, the Court found that the new owner had not been entitled to use self-help to evict the tenant and should instead have used the statutory eviction process under RSA 540. However, the Court also found that the new owner was not a landlord under RSA 540-A because (among other reasons) of the absence of evidence that the new owner ever rented the apartment to the tenant.

The tenant, accordingly, was not entitled to the protections against self-help eviction provided by RSA 540-A. However, the Court noted that the parties had agreed at oral argument that a common law theory of recovery (e.g., trespass) could apply. Because the tenant’s 540-A claim was not viable and both parties had represented that the tenant alleged only a 540-A claim in her petition, the Court remanded the case to the trial court to allow the tenant to seek leave to amend her writ to pursue relief via one or more other causes of action (164 NH at 578).

Ken Walton
Spofford, NH

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