Navigating the New Hampshire Eviction Process

Transcript of video:

Hello, my name is John Pendleton. Today I want to talk to you about what to expect when a landlord decides to evict a tenant from rental property.

The eviction process in New Hampshire, outlined in RSA 540, protects the rights of landlords and tenants and ensures that tenants are only evicted when allowed by law. If an eviction is legal, the landlord can obtain an order to remove the tenant. In this video, we will go over the typical landlord-tenant eviction process in New Hampshire.

The video is divided into 3 sections:

1. Before Court Involvement, Including Mediation
2. The Landlord-Tenant Writ and Appearance
and 3. The Court Hearing.

Because this video is intended to provide you with a basic outline of the typical eviction process, the court highly recommends that you talk to an attorney about whether the eviction process outlined here applies to your specific situation and what your legal rights and obligations are. It is the landlord's responsibility to know and to follow the procedural requirements necessary to evict a tenant.

If you cannot afford a lawyer, you may be able to get assistance from 603 Legal Aid by calling 1-800-639-5290.If you have any additional questions about the eviction process after watching this video, please visit the court's website or call the Trial Court Information Center at 1-855-212-1234.

Part 1: Before Court Involvement, Including Mediation

This video only covers residential rentals. In most cases, a residential rental can be referred to as restricted property.

This is because certain extra provisions of RSA 540 and 540-A apply. Generally, the eviction process also applies to non-residential, or non restricted rentals or tenancies, but some properties, like shared facilities where you might be renting a room in house or a vacation or recreational property do not use the eviction process under RSA 540. Eviction begins without the court's involvement, when the landlord gives the tenant an eviction notice, and if nonpayment of rent is the issue, a demand for rent.

It is important to note that the eviction notice is not a court order telling the tenant to leave. The eviction notice itself tells the tenant that the landlord is planning to go to court to evict or remove the tenant. A landlord can only evict a residential tenant for good cause including some specific reasons listed in the statute. In all cases, the landlord must list a statutory reason for the eviction.

One common reason for eviction is failure to pay rent. In those cases, a demand for rent is required. The demand for rent identifies the dates that the tenant has not paid rent as well as the back rent amount. The landlord may give the notice directly to the tenant or may leave the notice at the tenant's residence, such as taped to the door.

After the landlord has given the tenant an eviction notice and possibly the demand for rent, the landlord must fill out the certificate of service section on those documents, recording the time and the date notices were provided to the tenant. On the screen is the court's eviction notice, which can be found on the court's website. While the landlord does not have to use the court's eviction notice, the landlord must strictly comply with the notice provisions under RSA 540 and include the same information as outlined on the court's form. The eviction notice must state the reason for eviction and the corresponding notice period.

For example, if the reason for the eviction is failure to pay rent, a 7-day notice period is required. Alternatively, if the eviction is based on the tenant's failure to comply with a material term of the lease, then a 30-day notice period is required. The expiration date on the form is the date the notice period runs out. After the expiration date, the landlord can start the court case to evict the tenant. The eviction notice also informs the tenant about the ability to avoid an eviction if based on failure to pay rent. This is known as cure. To avoid the eviction, the tenant must pay all the back rent plus $15.

The tenant can only use the cure process three times over a twelve month period. Tenants and landlords should be aware that there are housing or welfare programs which may be available to aid tenants in paying back rent. When eviction is not based on failure to pay rent, the tenant may move out or the tenant may seek to resolve the underlying reason for the eviction with the landlord. This may cause an end to the eviction process.

After the expiration date, if the tenant does not move out or cure, the landlord may move to the next step in the process and file a court case, obtaining the landlord tenant writ. The court recommends that parties try mediation before a court case is filed. Mediation is an opportunity to talk to the other party with the help of a neutral facilitator. The Office of Mediation and Arbitration offers free remote mediation services to landlords and to tenants to try to resolve their issues before involving the court. Mediation gives the parties control, and is confidential and convenient. Call 603-271-6418 or email evictiondiversion@courts.state.nh.us to get started.

Part 2, The Landlord-Tenant Writ and Appearance.

The court process starts when the landlord seeks a landlord-tenant writ. The writ is a formal summons that tells the tenant that an eviction has been filed and gives the tenant an opportunity to respond. That response is called an appearance. The landlord-tenant writ can only be filed with the court after the eviction notice expires. To obtain the landlord-tenant writ, the landlord must provide the court with the expired eviction notice and, if applicable, the demand for rent.

Additional forms may also need to be filed, such as a sworn statement of damages if the landlord is seeking a separate judgment for unpaid rent. Any judgment for damages is limited to $1500. Once the landlord has filed the appropriate forms and paid the filing fee, the court will provide the landlord with the original, and copies of, the landlord-tenant writ and any attached documents. The landlord must then arrange for service by the sheriff. Except for the landlord-tenant writ, all forms needed to start the eviction process can be found on the court's website and by clicking how to file a landlord-tenant writ. This checklist includes instructions on how to arrange for service by the sheriff. The sheriff will serve the tenant with a copy of the landlord-tenant writ and note the return day.

The landlord must obtain the original completed writ from the sheriff and then must file it with the court by the return day, which is 7 days from the date of service. The return day is not a hearing date. Once the sheriff serves the tenant, the tenant must file an appearance by the return day. By finding an appearance, the tenant is telling the court that they want a hearing and they want to contest the eviction. The appearance form can be found on the court's website under the tenant information page. Once a tenant files the appearance, a hearing will be scheduled within 10 days. This is known as a hearing on the merits.

Should the landlord seek both an eviction based on failure to pay rent and a money judgment for the unpaid rent owed, a tenant may file a claim or counterclaim
to offset or reduce the amount owed. If a tenant is seeking injunctive relief to stop the landlord from taking certain actions, the tenant must file a separate petition
under RSA 540-A. Like the appearance, a tenant's claim or counterclaim must be filed with the court before the return day.

When a landlord seeks only to evict the tenant and regain possession of the rental property, the court can only consider the defenses outlined in RSA 540, such as the defense of retaliation or violation of the standard of fitness for health and safety. A counterclaim by the tenant is not permitted. However, at the court's hearing, a tenant will be able to challenge the landlord's evidence by questioning the landlord's witnesses and introducing evidence of their own. Knowing when to assert a claim, counterclaim, or defense may be difficult. Speaking to an attorney can help tenants understand which claims and defenses are available to them in the eviction process, and when they must be raised or filed.

If a tenant does not file an appearance by the return day or otherwise appear for the hearing date, the court will issue a notice of default and mail it to the tenant. If the tenant fails to respond to the default notice, a writ of possession and default judgment may issue on the date indicated on the notice. A writ of possession allows the sheriff to remove the tenant from the rental property. Costs associated with the judgment, like service and filing fees, will also be awarded to the landlord for the tenant's failure to appear. By failing to appear, the tenant loses the opportunity to be heard in front of a judge. A tenant may motion to strike or remove the default prior to a writ of possession issuing. The tenant must explain the circumstances as to why they defaulted, and why the court should remove the default.

If the court does not remove the default, the writ of possession will issue. Remember, a tenant can cure nonpayment issues at anytime prior to the hearing on the merits. If a tenant properly cures, the landlord must file a receipt of payment with the court, which will then issue a notice of dismissal of the eviction case.

Part 3, Court Hearing.

The hearing on the merits is when the court hears evidence from both parties, landlord and tenant, in deciding whether eviction is warranted. The landlord and the tenant need to bring to the hearing any witnesses or any evidence they want the judge to consider.

In some courts, mediation may be offered prior to the hearing on the merits to provide a final opportunity for the parties to try to reach a resolution. Should the parties not resolve the case or mediation not be offered at your specific court, then the case proceeds to the hearing on the merits. At the hearing on the merits, the burden is on the landlord to produce evidence supporting the reasons for the eviction by a preponderance of the evidence, which means more probable than not.

The landlord must also prove strict compliance with both the content and the service of the eviction notice, and that the landlord is the owner of the property or its authorized agent. If the landlord has sought an eviction for failure to pay rent, then the landlord must also prove strict compliance with the demand for rent.

The tenant may challenge the landlord's evidence, raise any legal defenses as outlined by the statute, and, if permitted, argue any claim or counterclaims that were filed along with the appearance. Cases may proceed by offers of proof where the parties to the case can tell the court about the situation and provide supporting evidence. In some cases, parties or other witnesses may be subject to questioning on the witness stand. Both the landlord and the tenant will have an opportunity to speak to the judge during the hearing. The judge will then make a decision, also known as a judgment, but that decision may not issue the same day as the hearing.

If the judge rules in favor of the landlord, or if the tenant defaults, then a judgment for costs and a writ of possession will issue after a brief period of time, subject to any appeal. Should the landlord make a successful claim for unpaid rent, or the tenant make a successful counterclaim, the judge will also issue a judgment 
regarding the unpaid rent. Any money judgment may not exceed $1500 for either party. If the judge rules in favor of the tenant, the tenant then remains in the rental property and the court can award costs.

In some cases, the court may issue a discretionary stay, which delays the writ of possession for up to 90 days to allow the tenant to secure alternative housing so long as the tenant continues to pay rent weekly.

Similarly, the landlord and tenant may choose to enter into a pay and stay agreement that allows the tenant to stay on the property so long as the tenant is making timely rent payments to the landlord based on an agreed upon schedule. Pay and stay agreements do not create a new tenancy, and the tenant can be evicted without a hearing for failure to pay the rent as agreed. Parties may appeal a judgment to the New Hampshire Supreme Court in an eviction case. Filing an intent to appeal with the Circuit Court stays or pauses the District Court proceeding. The intent to appeal must be filed within seven days from the notice of judgment. The appealing party then has 30 days from the notice of judgment to perfect or complete the filing of the appeal with the Supreme Court. Once the appeal is perfected, the Circuit Court retains jurisdiction over the case for the collection of rent only.

If the appeal is not perfected, then the Circuit Court affirms its original judgment and may include additional damages or costs to the prevailing party. For appeals of nonpayment of rent cases, the court must determine the weekly amount a tenant is to pay the court during the appeal process. For cases other than non-payment of rent, the tenant can pay either the landlord or court as rent becomes due. Should the tenant fail to pay weekly rent to the court, the court can issue a notice of default on appeal and issue the writ of possession.

Eviction cases can be overwhelming. There are specific rules and timelines for when and how steps need to happen, and the consequences of eviction can be severe. Speaking to a lawyer can help you navigate the process. If you cannot afford a lawyer, you may be able to get assistance from 603 Legal Aid by calling 800-639-5290.

If you have any additional questions about the eviction process after watching this video, please visit the court's website or call the Trial Court Information Center at 855-212-1234. We hope this video has helped you understand the process better.

Thank you.