Landlord Tenant

Jonathan P Killeen
Shareholder at Boyle, Shaughnessy Law PC in Manchester, NH

Richard Horton & a. v. David Clemens & a.
August 11, 2020

  • Whether an eviction notice that does not contain the same information as the judicial branch form eviction notice is nonetheless legally sufficient because it contains the information required by RSA 540:3.

Landlords brought possessory action against tenants, providing a notice of eviction demanding rent owed. Pursuant to RSA 540:3, the eviction notice gave the tenants seven days’ notice of the eviction, specified the reasons for the eviction, and informed the tenants of their right to avoid eviction by paying arrearage and liquidated damages. The tenants objected and moved to dismiss arguing that the landlords’ failure to include in the eviction notice the same information that is pro- vided in the judicial branch eviction form rendered the notice fatally defective. The circuit court dismissed landlords’ petition to evict defendants for nonpayment of rent because the eviction notice did not contain the same information contained in the judicial branch form eviction notice pursuant to RSA 540:5, II (2007). The landlords ap- pealed.

On appeal, the Supreme  Court   explained that RSA 540:2, II(a) authorized landlords to terminate a tenancy for non- payment of rent “by giving to the tenant  or occupant a notice in writing to quit the premises in accordance with RSA 540:3 and 5.” The Supreme Court further explained that pursuant to RSA 540:5, II, although landlords are not required to use forms created by the circuit court when seeking to evict a tenant, a landlord’s notice of eviction “shall include the same information as is requested and provided in such forms.” The Court further explained that the language on the judicial branch form eviction notice was not beyond the scope of the circuit court’s authority to create forms that comply with existing law because pursuant to RSA 490:26-d, circuit courts have statutory authority to create judicial forms that are necessary for the effective administration of justice and consistent with the circuit court’s constitutional obligations to ensure equal access to justice.

The landlords’ eviction notice did not include the information found in the judicial branch form eviction notice, which provides that: (1) the eviction notice is not a court order requiring tenants to vacate property; landlords may proceed with the eviction process if the tenants remain on the premises; (3) the process will involve being served with a writ; (4) the tenants have a right to dispute the reasons for eviction at a judicial hearing; and (5) tenants must file an appearance before the return date in order to dispute the reasons for their eviction. As a result, because the landlords failed to strictly comply with the requirements of RSA 540 et. seq., dismissing the eviction proceedings was appropriate. The landlords were not prohibited from filing a new eviction notice and a new writ of possession.

Gabriel Nizetic, Plymouth Law Center, of Plymouth, for the plaintiffs. David Clements and April Hanks, self-represented par- ties, filed no brief. Stephen Tower, on the brief, New Hampshire Legal Assistance, as amicus curiae.