2004-747 AIMCO PROPERTIES, LLC d/b/a ROYAL CREST ESTATES v. KASHA DZIEWISZ

part: July 12, 2004, the plaintiff sent the defendant a letter stating, in pertinent lease beginning on September 1, 2003, and ending on Au gust 31, 2004. On The limited record reflects the following facts. The parties entered into a

d/b/a Royal Crest Estates, possession of her apartment. We reverse. Nashua District Court (Ry an, J.) granting the plaintiff, AIMCO Properties, LLC DALIANIS, J. The defendant, Kasha Dziewisz, appeals an order of the

brief and orally), for The Way Home, as amicus curiae. New Hampshire Legal Assistance, of Manchester (Elliott Berry on the

K asha Dziewisz, by brief, pro se.

and orally), for the plaintiff. Gormley & Gormley, P.C., of Nashua (Arthur O. Gormley, III on the brief

AIMCO PROPERTIES, LL C d/b/a ROYAL CREST ESTATES

No. 2004 - 747 Nashua District Court

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

for one of the following reasons: quit the premises in accordance with RSA 540:3 and 5, but only tenancy by giving to the tenant or occupant a notice i n writing to The lessor or owner of restricted property may terminate any

RSA 540: p. 2 2, II provides:

intent. Id. is unambiguous, we need not look beyond it for further indication of legislative and ordinary meaning to the words used. Id. When the languag e of a statute examine the language of the statute, and, where possible, we ascribe the plain Sound Economy v. Sch. Admin. Unit # p. 2 25, 151 N.H. 612, 614 (2004). We first words of the statute considered as a whole. Bedford Chapter - Citizens for a We are the final arbiter of the intent of the legislature as expressed in the

the expiration of the lease, in and of itself, does not constitute good cause. requires that the notic e to quit state the reason for eviction. She contends that restricted property have good cause for an eviction. RSA 540:3, III (1997) does not comply with the requirement of RSA 540: p. 2 2, II (1997) that a landlord of stat utory reasons for eviction or state good cause in the Letter of Non - Renewal” The defendant argues that the plaintiff’s “failure to state one of the

dismiss, we need not address her first and third motions to dismiss. her motions to dismiss. Because we agree with respect to her second motion to The defendant appeals, arguing that the d istrict court erred by denying

plaintiff’s request for a writ of possession. October 7, p. 2 2004, the district court denied these motions and granted the quit; and (3) the plaintiff failed to serve her personally or at her abode. On to quit, the plaintiff failed to allege good cause for the eviction in the notice to not constitute a notice to quit; (2) even assuming the letter constituted a notice arguing that: (1) the plaintiff’s letter concerning non - renewal of the lease did seeking a writ of possession. The defendant filed three motions to dismiss, After the defendant failed to vacate the apartment, the plaintiff filed suit

apartment by Tuesday August 31, p. 2 2004. intend to renew you [sic] lease. Therefore, you must vacate your You are hereby notified that Royal Crest Estates – Na shua does not

31, p. 2 2004. Please be advised your current apartment lease expires on August

Dear Ms. Dziewisz, p. 3 3

lease constitutes “other good cause.” RSA 540:2, II(e). The question we must answer is whether the expiration o f a good cause. It does, however, contain a section describing “other good cause.” RSA 540:2, II does not provide that the expiration of a lease constitutes

good cause for an eviction as req uired by RSA 540:2, II. Thus, we must determine whether the expiration of a lease, alone, constitutes plaintiff provided in its letter of non - renewal was the expiration of the lease. letter of non - renewal constituted a notice to quit, the only reason that the the reason for the eviction.” Assuming, without deciding, that the plaintiff’s RSA 540: p. 3 3, III requires that the “notice to quit shall state with specificity

defendant’s tenancy. tenant at su fferance, the plaintiff needed good cause to terminate the whether the defendant had the status of a leasehold tenant or the status of a plaintiff and defendant had a landlord - tenant relationship. Regardless of tenant at sufferance.”). Thus, at all times relevant to these proceedings, the tenant who, without any agreement, holds over after his term has ex pired is a a tenant at sufferance. See Hill v. Dobrowolski, 125 N.H. 572, 575 (1984) (“A the lease expired and the defendant did not vacate the apartment, she became leasehold tenancy. On August p. 3 31, 2004, the defendant’s lease expired; when unabridged ed. 2002). Prior to the expiration of the lease, the defendant had a of any is “every” or “all.” Webster’s Third New International Dictionary 97 (2d RSA 540:2, II states th at it applies to “any tenancy.” The plain meaning

market. ( p. 3 3) Removing the dwelling unit from the residential rental to take more than 30 days to perform; or (2) Any other method which can reasonably be expected (1) Methods other than interim controls or encapsulation; the owner will abate by: (f) The dwelling unit contains a lead exposure - hazard which (e) Other good cause. abatement, as set forth in RSA 130 - A:8 - a, I. suitable temporary relocation due to lead - based paint hazard landlord or his representatives, or f ailure of the tenant to accept adversely affects the health or safety of the other tenants or the (d) Behavior of the tenant or members of his family which lease. (c) Failure of the tenant to comply with a material term of the members of his hou sehold, or guests. (b) Substantial damage to the premises by the tenant, demand. (a) Neglect or refusal to pay rent due and in arrears, upon p. 4 4

evicted without any reason whatsoever. All the landlord has to do with most low and moderate income tenants, he or she can be Und er current law if a tenant does not have a lease, as in the case

bill that: During the senate debates in 1985, it was stated by the sponsor of the

advantage. provide the landlord of restricted property with any economic or business occupy the same position as the tenant being evicted does not, in and of itself, expiration of a lease with another tenant who will pay the same rent and foreclosure, see RSA 5 p. 4 40:1 - a, I(d) (1997). Replacing one tenant upon the or single - family houses acquired by banks or other mortgagees through rented during the off - season for certain p urposes, see RSA 540:1 - a, I(c) (1997); see RSA 540:1 - a, I(b) (1997); rental units in a vacation or recreational dwelling units in an owner - occupied building containing a total of four units or fewer, than three single - family hous es at one time, see RSA 540:1 - a, I(a) (1997); rental (1997); single - family houses if the owner of such a house does not own more not apply to: property rented for nonresidential purposes, see RSA 540:1 - a, I whose mai n concern is, presumably, profit. See RSA 540:1 - a, II (1997). It does landlords who are generally in the business of renting residential property, and reason. RSA 540:2, II only applies to landlords who rent restricted property: mere expiration of a lease constitutes a legitimate business or economic Nor would it advance the purpose of the statute to conc lude that the

to provide. thereby denying tenants the precise protection that RSA 5 p. 4 40:2, II was designed would allow landlords to arbitrarily evict tenants whose leases have expired, the mere expiration of a lease would run contrary to th is legislative intent, as it N.H.S. Jour. 157 (1985). Interpreting the term “other good cause” as including time protect[ing] tenants from arbitrarily and/or ill motivated evictions.” flexibility to landlords to evict tenants for any good reason and at the same House Bill 95 (1985) (analysis). It was described as “giv[ing] . . . greater enacted to “limit[] the grounds for eviction of tenants from restricted property.” RSA 540:2, II was adopted in 1985 as part of House Bill 95, which was

in light of the policy sought to be advanced by the entire statutory scheme. Id. goal is to apply statutes in light of the legislature’s intent in enacting them, and histo ry to aid our analysis. State v. Whittey, 1 p. 4 49 N.H. 463, 467 (2003). Our cause” is ambiguous. When a statute is ambiguous we consider legislative by merely looking to the plain language of RSA p. 5 540:2, II. The term “other good the expiration of a lease constitutes “other good cause” cannot be determined action or inaction of the tenant, members of his family, or guests.” Whether to, any legitimate business or economic reasons and need not be based on the RSA 540:2, V provides that other good cause “includes, but is not limited 5

that? past, always had his choice of who to rent to. Would he still have SENATOR STEPHEN: Isn’t [sic] the owner or realtor, in the

floor during th e debate on whether to adopt the changes to RSA chapter p. 5 540: already established a tenancy, as demonstrated by this exchange on the senate legislature only sought to establish limited protections for tenants who had whomever the landlord chooses, within the limits imposed by other laws. The Our holding does not restrict a landlord’s ability to lease or rent to

the legislature intended. without disclosing the true reason for eviction. This would be contrary to what during the course of the tenancy – could evict the tenant at the end of the lease to a tenant for any reason – for example, because the tenant became disabled were to constitute good cause, a landlord who did not wish to continue renting evicting tenants for ill - motivated reasons. If the mere expiration of the lease eviction is ill - motivated. RSA p. 5 540:2, II was enacted to pre vent landlords from cause for eviction, it could enable landlords to evict when the true reason for Furthermore, were the mere expiration of the lease to constitute good

Such a result would be contrary to what the legislature intended. services and support systems for elderly and disabled tenants may be lost. be disrupted, children may be forced into new school districts, and local and inconveniences of moving. Relationships with friends and neighbors may Even when another residence is procured, the tenant must bear the e xpenses hardships for tenants. At worst, tenants may become homeless as a result. own; such evictions, as the legislature undoubtedly realized, create substantial tenants could be evicted arbitrarily from their homes through no fault of their Were the mere expiration of a lease to constitute good cause, then

prohibit. able to evict tenants in the exact manner that RSA p. 5 540:2, II was designed to arbitrarily upon the expirat ion of any month’s lease. A landlord would thus be renewable month - long leases, allowing the landlord to evict any tenant avoid the requirements of RSA 540:2, II, by simply requiring tenants to sign protections that RSA 540:2, II was designed to afford; a landlord could easily for good cause merely because a lease has expired we would eviscerate the N.H.S. Jour. 1040 (1985). Were we to hold that a landlord may evict a tenant

justifiable cause for eviction. Under HB 9 p. 5 5, almost all landlords will be required to establish is give the tenant a notice directing the tenant to leave in 30 days. p. 6 6

and brackets omitted). Because we have no transcript, we have no way of can see from the entire record that no inju ry has been done.” Id. (quotation “where it appears that an error did not affect the outcome below, or where [we] (2003). Thus, in a civil case, we will not disturb the trial court’s judgment substantial rights of the par ty asserting it.” McIntire v. Lee, 149 N.H. 1 p. 6 60, 167 trivial, or formal, or merely academic, and was not prejudicial to the unless supplemented by the appellee. “An error is considered harmless if it is 286, 292 (2001). Our review is limited by the record provided by the appellant burden of proof on that issue. See Hodgdon v. Frisbie Mem. Hosp., 147 N.H. The landlord argues that this error was harmless and, therefore, has the landlord did not have to serve a notice to quit upon the tenant, Kasha Dziewisz. Royal Crest Estates, concedes that the trial court erred wh en it ruled that the the trial court’s decision because the landlord, AIMCO Properties, L.L.C. d/b/a NADEAU, J., concurring specially. I concur in the judgment reversing

NADEAU, J.