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New Hampshire Eviction Process

The eviction process used in New Hampshire is referred to as a "summary process." The process is driven by both statute and court rules of procedure (with case law providing meaning and nuance). It's important to recognize that there are many subchapters to New Hampshire's statutory landlord and tenant law that interact with each other. (For example, state laws on lead paint, municipal welfare, health codes, etc.) A landlord interested in protecting his investment will be wise to have at least a general grasp of the various requirements imposed by law. The focus of this article, however, is limited to NH RSA 540 ("Actions Against Tenants") and District Court Rules 5.1 through 5.12.

How RSA 540 will apply to any particular landlord-tenant situation depends upon: 1) the nature of the rental property and 2) the nature of the relationship between property owner and the other person. Of the two, knowing whether the other person is a "tenant" is the most important determination. If the relationship between the property owner and the other person does not meet the definition of a tenancy RSA 540 will not apply and other lawful means for forcing that person from the property will have to be considered.

Generally speaking, a "tenant" in New Hampshire is someone who agrees to pay rent to use someone else's property as a place to live for some period of time. The agreement to pay rent is critical in establishing the existence of a landlord and tenant relationship (and the application of RSA 540.) Therefore, a tenancy does NOT exist (in New Hampshire) when the other person is your own primary and usual place of residence without a lease agreement.

"Tenant" also does NOT include everyone who agrees to pay rent to live at someone else's property. For example, "tenants" are not transient guests staying in the same room for less than 90 days; people staying in hotels, motels or other dwelling places rented for recreational vacation use; dorm rooms, convents, or group homes. (These are just some of the many relationships between a property owner and another person that are by law NOT tenancies even though the other person is paying you money to use your property.)

If the relationship is in fact a tenancy, any attempts by the property owner to force the other person from the property will have to follow-to the letter- the eviction procedure required by RSA 540. Failing to strictly comply with the procedural requirements of RSA 540 will result in the eviction being dismissed and the benefit of the speed the summary process otherwise offered.

The procedural process required by RSA 540 will depend on the nature of the rental property. "Nonrestricted property" is made up of commercial rental property, "small operation" residential property, and residential property owned by banks and other mortgagees through the foreclosure process. ("Small operation" refers to landlords who own less than three single family dwelling units or owner-occupied buildings having four or less dwelling units.) "Restricted property" means all other real property rented for residential purposes.

In either case the eviction process starts with giving the tenant written notice that the tenancy is being terminated (referred to as a "Notice to Quit.") In general, the Notice to Quit must clearly tell the tenant when the termination becomes effective (the "quit date.") Tenants in restricted property must also be given the reason why the tenancy is being terminated. Permissible reasons for evictions from restricted property are limited and defined by the statute.

Regardless of the type of property the written Notice to Quit must be given to the tenant a required number of days in advance of the quit date. For nonrestricted property the minimum advance notice is seven (7) days. In restricted property evictions the notice period varies depending on the reason for the eviction. The Notice to Quit can be given to the tenant either in person or by leaving it at the tenant's "last and usual place of abode."

In cases where the reason for eviction is for the tenant's nonpayment of rent, the tenant has the lawful right to avoid the termination of the tenancy by paying all rent due and owing, plus a $15 penalty, to the landlord before the quit date. The tenant's "right to cure" is limited and cannot be used more than 3 times within a twelve (12) month period. If the tenant vacates the premises before the quit date then the landlord will have to pursue a different legal action other than the eviction process to collect any money owed by the tenant.

If the tenant remains in the property after the quit date expires, however, the landlord may then file a writ of summons which begins the court process. (A landlord should NOT take any steps to force the tenant out of the property unless and until a court issued a writ of possession has been served on the tenant. Any efforts to "self-help" the eviction of the tenant will backfire and the landlord could end up owing the tenant damages and attorney's fees. Unlawful efforts to force the tenant out could also result in criminal charges against the landlord.)

Once the writ of summons is served (by sheriff) on the tenant the tenant will have seven (7) days to enter an Appearance and an Answer or face a default judgment. If the tenant does file an Appearance and Answer the court is required to schedule a hearing- the final hearing- to occur within ten (10) days. Each party does have a right to the discovery process, and that could push back when the final hearing will occur. But it is an expedited process, and the court rules specifically emphasize that a final hearing should take place, whenever possible, within thirty (30) days of the writ of summons being served.

If the tenant fails to appear the court will issue the Writ of Possession to the landlord within three (3) days of the notice of default judgment being mailed to the tenant. (Default judgments are susceptible to the tenant having a valid reason for not appearing at the hearing, and so the landlord should wait a bit before having to pay the sheriff to serve the Writ of Possession.) If the tenant did appear at the final hearing and the landlord won the case, then the Court must wait seven (7) days to allow the tenant to appeal before issuing the Writ of Possession. Keep in mind, however, that RSA 540 allows the judge to grant a "discretionary stay" and give the tenant up to an additional three (3) months to vacate. (The tenant will be ordered to pay rent into court during those three months; failure to pay will result in the issuance of an immediate writ of possession.)

The court will also issue a written decision on claims for rent and damages after the hearing. Thus, in a best case scenario a landlord can recover possession of the premises and have the case over in approximately sixty (60) days. It may still feel like forever to the landlord; and the speed of the process comes at some cost (for example, money judgments are limited in evictions to $1,500. For anything more the landlord would have to file a separate breach of contract action which would take longer.) But when compared with the typical time an eviction action takes from beginning to end in Vermont, New Hampshire landlords are fortunate.

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