TITLE VIII OF THE CIVIL RIGHTS ACT OF 1968 makes it illegal to treat a person differently in housing based on race, color, national origin, disability, sex, religion, and familial status (the number and ages of children in a family). New Hampshire's fair housing law (RSA 354-A) also protects residents against housing discrimination based on a person's age, marital status, or sexual orientation. These laws cover housing owners, landlords, housing managers, real estate agents and others involved directly or indirectly in the rental or sale of housing or housing lots. Advertising of an available apartment, home or housing lot; the rental, sale or negotiation for the rental or sale of housing; and the provisions of home financing or real estate brokerage services all are covered by these anti-discrimination laws.
If you believe you have been a victim of housing discrimination under federal or state law, you can file a complaint with the NEW HAMPSHIRE COMMISSION FOR HUMAN RIGHTS at 603-271-2767, or with the DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) at 800-669-9777. If you need legal assistance, you can contact the FAIR HOUSING PROJECT (FHP) at 800-921-1115 in-state, or 603-669-4960 in Manchester, a statewide program of NEW HAMPSHIRE LEGAL ASSISTANCE that provides legal services to low-income residents. If you believe there is a pattern or practice of discrimination that extends beyond you as an individual, contact the HOUSING AND CIVIL ENFORCEMENT SECTION OF HUD at 800-669-9777.
TENANT RIGHTS AND RESPONSIBILITIES
As in any contractual agreement, housing leases stipulate the rights and responsibilities of the contracting parties-in this case, tenant and landlord. It is important to note, however, that no lease can override a specific provision of New Hampshire law that provides tenant protections.
NOTE: NEW HAMPSHIRE STATE LAW, RSA 205-A, PROVIDES SUBSTANTIAL ADDITIONAL RIGHTS TO MANUFACTURED HOUSING TENANTS, NOT COVERED IN THIS CHAPTER.
RIGHTS AND RESPONSIBILITIES UNDER A LEASE
Although a rental agreement can be written or oral, "lease" usually means a written rental agreement for a specific time, usually one (1) year. As long as you abide by the lease, you cannot be evicted during that year and your rent cannot be raised. However, you may be obligated to pay the rent for that entire year even if you move.
Read the lease carefully before you sign it and ask about anything that you do not understand. If rent is shared, anyone who signs the lease may have to pay the total rent, not just his or her portion. If your lease expires and you are not offered a new one, you then become a month-to-month tenant. Even then, in most situations, you cannot be evicted without good cause.
If you do not have a lease, the landlord can increase the rent but must give you written notice of increase thirty (30) days before the increase is due to take effect.
SAFE AND SANITARY HOUSING
According to RSA 48-A:14 landlords are required to provide safe, sanitary housing for tenants. State law sets forth the minimum standards for rental property. The following may be examples where these standards are not being met:
Bugs, mice or rats, and the landlord is not conducting a routine inspection and extermination program;
Internal plumbing that does not work, or a back-up of sewage caused by a faulty septic or sewage program;
Bad wiring;
Leaking roof or walls;
Not enough water or the water heater is not working properly;
Leaks in gas lines;
Heating facilities are not properly installed, safely maintained, and in good working condition, or cannot safely and adequately heat all livable rooms and bathrooms to average temperature of at least sixty-five (65) degrees; or
The premises are not kept at a minimum average temperature of sixty-five (65) degrees in all livable rooms when heat is included in the rent.
MAKING A COMPLAINT ABOUT THE LACK OF SAFE AND SANITARY HOUSING
You should make all complaints and requests for repairs in writing to the landlord and keep dated copies. If the landlord fails to make proper repairs, report any serious problems to proper authorities, usually the code enforcement officer or building inspector. Report any fire hazards to the local fire chief. If the town does not address these problems, you can contact the STATE OFFICE OF HEALTH MANAGEMENT at 603-271-4501 or the STATE FIRE MARSHALL at 603-271-3294. The landlord cannot evict you for making these complaints (see below, "Retaliatory Eviction").
WITHHOLDING RENT
If you choose to withhold rent, it is best that you consult an attorney before doing so. Lawfully, you may withhold your rent if ALL the following conditions are met:
You gave your landlord notice (preferably written notice) of the violations while you were not behind in rent; AND
The landlord failed to take corrective actions within fourteen (14) days of your written complaint. (In an emergency, you may not have to wait fourteen (14) days before you begin withholding); AND
Your family or guests did not cause the violation; AND
Extreme weather conditions did not prevent the repairs; AND
You did not refuse to let the landlord into your apartment to make the repairs.
If you choose to withhold rent, you must put aside the rent money withheld so that it is available to pay to the court. If the landlord tries to evict you because of non-payment of rent, and you have satisfied all of the above conditions, the court can dismiss the eviction.
OTHER TENANT PROTECTIONS
New Hampshire law (RSA 540-A) prohibits a landlord from certain acts:
Shutting off your utilities;
Locking you out of your rented premises without a court order;
Entering your premises without permission, except to make emergency repairs. (You should not refuse your landlord's reasonable request to enter the premises if you are given enough notice); and
Taking any other action to force you out of your home without going through the eviction process.
If your landlord has done any of the actions listed above, you can get an order to make your landlord stop, and to award you damages, by filing a 540-A petition at your local DISTRICT COURT (see RESOURCE DIRECTORY for a listing of New Hampshire courts). You do not need a lawyer. Ask the clerk to help you. You also may want to ask for a temporary order if there is an immediate threat of serious harm. The court will schedule a hearing to hear both sides and then will decide if you should get damages and if the order should be continued.
SECURITY DEPOSITS
Under New Hampshire law, a security deposit is any money that you give to your landlord other than your monthly rental payment. Even if your landlord calls the money a deposit for cleaning, pets or keys, or the last month's rent, it still is treated under the law as a security deposit. This law protects all tenants EXCEPT:
Tenants who rent a single family home from a landlord who does not own any other rental property;
Tenants under the age of sixty (60) who live in a building with less than six (6) apartments and whose landlord lives in the same building; and
Tenants in business, vacation or recreational rentals.
Even if the law does not cover your tenancy, your landlord still is obligated to return your deposit after you move out, minus unpaid rent and repair costs. If your security deposit is not returned, you still may sue your landlord but may not be entitled to certain penalties provided by New Hampshire law.
Your landlord cannot require you to pay a security deposit in an amount that is greater than one month's rent or $100.00, whichever amount is larger. FOR EXAMPLE, ALTHOUGH A COMMON PRACTICE, IT IS ILLEGAL FOR A LANDLORD TO CHARGE FIRST AND LAST MONTH'S RENT IN ADDITION TO A SECURITY DEPOSIT. Whenever you pay a security deposit, the landlord is required to give you a signed receipt, which must tell you which bank your deposit is held.
You also are entitled to receive interest earned on the money in the savings account where it was deposited if your landlord holds your deposit for more than one (1) year.
When you move out, you should notify your landlord in writing of your new address as soon as possible and preferably on or before the day you move. Your landlord has thirty (30) days from the end of the tenancy to return your full deposit with any interest owed, or return your deposit minus any permitted deductions.
Your landlord is permitted to deduct the following expenses from your security deposit:
Any rent that is still owed;
The cost to repair any damages caused to the apartment or leased premises caused by you or your guests; and
Your share of increases in real estate taxes (but only if a written agreement requires this).
Your landlord is required to provide you with an itemized list of any expenses deducted from your deposit and further must provide proof that the repairs, if any, have been or will be completed.
The landlord is not permitted to charge you for "normal wear and tear" to the premises. Whether or not something is considered to be "normal wear and tear" or damage depends on the facts. Worn carpeting or linoleum usually will be considered "normal wear and tear," while broken glass and holes in walls will be considered damage.
You have five (5) days to give your landlord a list of defects and damages that were in the apartment when you moved in. Also, it is important to inspect the premises when you move out. You should make both inspections with a witness.
You may be able to sue your landlord for damages in small claims court if you do not get your security deposit within thirty (30) days. Before you file a lawsuit, write to your landlord requesting the return of your security deposit. Be sure to include your new address in your letter. Keep a copy of the letter for yourself.
If you decide to sue, call the LEGAL ADVICE & REFERRAL CENTER at 800-639-5290 or 603-224-3333 for more information regarding the legal process or to request informational brochures on "Tenant Rights" and "Security Deposits." In addition, the FAIR HOUSING PROJECT (800-921-1115 in-state or 603-669-4960 in Manchester), a statewide program of NEW HAMPSHIRE LEGAL ASSISTANCE, provides legal services to low-income residents for housing issues.
THE EVICTION PROCESS
REASONS FOR EVICTION
In most rental situations, your landlord must prove good cause to evict you; you cannot be evicted without a reason. Lawful reasons to evict must be stated on the eviction notice. Some specific examples follow.
Non-payment of rent
Substantial damage to the premises
Violation of the lease
Behavior of the tenant or guests that adversely affects the health or safety of other tenants or the landlord
Failure of the tenant to accept suitable temporary relocation due to the abatement of lead paint hazards
Repairs for a lead hazard that will take more than thirty (30) days or will be more than a temporary measure, or that, after the repairs, the unit will be no longer rented
Other good cause
EXCEPTIONS TO GOOD CAUSE EVICTION
If you live in one of the types of properties set forth below and you do not have a lease, your landlord does not need good cause to evict you. However, even if you do live in such a property, the landlord still must go through all the steps of the eviction process.
The rental unit is a single-family house and the owner does not own more than three (3) single-family houses at one time.
The rental unit is in an owner-occupied building containing a total of four (4) units or fewer.
The rental unit is in a vacation or recreational dwelling, rented during the off-season for non-recreational purposes.
The rental unit is a single-family house acquired by a bank or other mortgagor through foreclosure.
RETALIATORY EVICTIONS
It is unlawful for a landlord to evict you for reporting housing code violations, filing a fair housing complaint, or organizing a tenant association. Evicting a tenant when he or she lawfully is withholding rent as described in the tenant rights section above also is a form of retaliatory eviction and is illegal. In addition, a landlord may not evict you on the basis of race, age, sex, national origin, sexual orientation, or any other protected category.
THE EVICTION PROCESS
In order to evict, a landlord must follow the correct procedure and, in most situations, must prove that there is a good cause to evict. The law requires a written notice and the opportunity for a court hearing. If a landlord fails to take the steps required by law, a tenant may request that the court dismiss the eviction.
In nonpayment evictions, a demand for rent is the first notice you will receive. A demand for rent will tell you how much rent you owe, and cannot ask for more rent than is actually owed. The demand must be served personally (given to you in hand) or left at your home prior to or at the same time as the "notice to quit."
A notice to quit is your eviction notice. It must be in writing; be served on you personally or at your door; and state specifically the reason for the eviction. If the reason for the eviction is nonpayment, behavior adversely affecting the health and safety of other tenants or the landlord, or that you have caused substantial damage to the premises, the notice must give you at least seven (7) days to leave. In all other cases, a landlord must give you at least thirty (30) days notice to leave. Further, the notice must notify you of your right to cure, if the reason is nonpayment of rent. The right to cure means that you can avoid eviction by paying all of the back rent, plus $15.00, by the date the notice to quit expires. If you pay on time, you cannot be evicted. It is important to note that you can cure only three (3) times within a twelve (12) month period.
After the notice to quit has expired and you have not left, the landlord can begin a legal action against you. In this case, a sheriff will serve a writ, either on you personally or at your home. Read the writ carefully. It will indicate a return date. If you want a hearing to challenge the eviction or to ask for more time, you must file an appearance and ask for a hearing before the return date.
NOTE: THE RETURN DATE IS NOT A HEARING DATE. THERE WILL NOT BE A HEARING UNLESS YOU REQUEST ONE FROM THE COURT.
You can obtain an appearance form at the DISTRICT COURT from the clerk (see RESOURCE DIRECTORY for a listing of New Hampshire courts). Fill it out and leave it with the clerk. You also will want to send a copy of the form to the landlord or the landlord's attorney. After you file your appearance form, you will receive a notice letting you know the date of the hearing. If you do not file an appearance form, you will lose your eviction case and the court can issue a writ of possession against you three (3) days later.
You can send discovery requests to your landlord or the landlord's attorney within five (5) days following the return date on the writ. During the discovery process, you can find out what evidence your landlord plans to use against you so that you can prepare for the hearing. You have the right to send written interrogatories or questions about the specifics of the case. Your landlord has fourteen (14) days to respond, so you will need to ask the court in writing to postpone the hearing to give your landlord time to reply. If your landlord does not respond within fourteen (14) days, you can inform the court and ask for another postponement of the hearing to give you time to get the information.
At the hearing, the court has the power to decide who should have possession of the property and how much money is owed between you and the landlord. If the landlord has requested money damages on the writ, the hearing may result in a financial judgment that can be enforced against you if it is not paid. Therefore, if you disagree with the amount the landlord claims you owe, you should go to the hearing, even if you have already moved.
To win the right to stay in the rental property, you must convince the court:
That the landlord does not have good cause to evict you (for more information about good cause see above); or
In the case of non-payment of rent, that you do not owe the money or that the landlord owes you more money than you owe the landlord; or
That the landlord did not take the proper legal steps to evict you.
For information on the hearing and the defenses that you can raise, call the LEGAL ADVICE & REFERRAL CENTER at 800-639-5290 or 603-224-3333 for advice or to request the informational brochure, "The Eviction Process." In addition, the FAIR HOUSING PROJECT (800-921-1115 in-state, or 603-669-4960 in Manchester), a statewide program of NEW HAMPSHIRE LEGAL ASSISTANCE, provides legal services to low-income residents.
In the event that you lose at the hearing, you should ask the court to grant a discretionary stay at the end of your hearing. The court has the discretion to grant a stay of up to ninety (90) days, during which time the writ of possession is stayed, or delayed, by the court. You must pay weekly rent during this time and failure to make a timely payment may result in the landlord going back to the court to ask for a writ of possession.
The judge uses a variety of factors to decide whether or not to grant a stay, including:
The difficulty you will have in moving;
Whether your children will have to change schools;
Your ability to pay rent during the stay;
Whether you have a definite date for moving; and
Whether a delay will hurt the landlord.
At the end of the stay period, the court will issue a writ of possession if you have not yet moved.
A writ of possession authorizes your landlord to take back possession of the property. This is the final step in the eviction process. You may receive a warning from the sheriff, and a few days later the sheriff will return to remove you from the property. It is best to remove your personal property before that happens. However, your landlord is obligated to take care of your personal property for twenty eight (28) days after you vacate the premises and cannot charge you payment for any rent or storage fees.
NOTE: UNTIL THE WRIT OF POSSESSION IS SERVED ON YOU OR ON YOUR HOME, IT IS UNLAWFUL FOR YOUR LANDLORD TO FORCE YOU TO LEAVE THE PROPERTY. IF YOUR LANDLORD UNLAWFULLY ATTEMPTS TO MAKE YOU LEAVE THE PROPERTY WITHOUT USING THE EVICTION PROCESS, YOU CAN GO TO THE DISTRICT COURT, ASK FOR A 540-A PETITION, AND REQUEST THE COURT TO ORDER YOUR LANDLORD TO STOP.
THE APPEAL PROCESS
You can appeal your case to the NEW HAMPSHIRE SUPREME COURT IF AND ONLY IF you file a notice of intent to appeal with the DISTRICT COURT within seven (7) days of the court's decision. If the eviction is based on non-payment of rent, you must pay one week's rent into the court at the time you file your notice of intent to appeal, and you must pay your rent weekly into the court thereafter.
For more information on appealing your case, contact the LEGAL ADVICE AND REFERRAL CENTER at 800-639-5290 or 603-224-3333. In addition, the FAIR HOUSING PROJECT (800-921-1115 in-state, or 603-669-4960 in Manchester), a statewide program of NEW HAMPSHIRE LEGAL ASSISTANCE, provides legal services to low-income residents.
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