2005-865, JAMES M. GREELISH v. DIANE WOOD

The plaintiff, James M. Greelish, appeals an order of the

the defendant. Donald F. Whittum, of Rochester, by memorandum of law and orally, for

to press. Errors may be reported by E-mail at the following address: John F. Lake, of Barnstead, by brief and orally, for the plaintiff.

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-865 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Belknap Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 $1,543.38 to the defendant. the damage awards were offset against each other, the final judgment was it. Therefore, the court awarded an additional $1,030 to the defendant. After

totaling $4,876.71.

plaintiff had removed the defendant’s personal property and had not returned

damages equal to $1,100 per month from August 18 through January 1, 2004,

January 1, 2004, totaling $5,390.09. In addition, the court found that the from the beginning of the harassment (August 4, 2003) until she vacated on awarded the defendant damages equal to the fair rental value of the premises

did not vacate until January 1, 2004. The trial court awarded the plaintiff 2 to rent the property to the prospective tenant, however, because the defendant August 18, 2003, and pay $1,100 per month in rent. The plaintiff was unable

was to refrain from inflicting willful or wanton injury. effectively constituted an attempted self-help constructive eviction.” The court

prospective tenant who was willing to take possession of the premises on

(2) in awarding damages to the defendant because the only duty he owed her that the plaintiff’s “harassing conduct was unreasonable, excessive and his damages resulting from the defendant’s failure to vacate the premises; and deny at trial that he had removed those items. The plaintiff appeals, arguing that the trial court erred: (1) in calculating

defendant was storing on the property. access, and removing without permission an unregistered vehicle that the parking a vehicle within inches of the steps leading to the porch also to block proceedings. On remand, the trial court found that the plaintiff had procured a

With respect to the defendant’s claims for damages, the trial court found property worth $1,030 was missing. The court noted that the plaintiff did not

including parking a truck across the driveway to block access to the premises, The case was appealed to this court, resulting in a remand for further

stored in the basement. When she returned on January 10 to retrieve it, she attempted to retrieve it on January 10, 2004. about January 1, 2004, she was unable to remove certain personal property vacated and for the value of personal property she alleged was missing when The court further found that when the defendant left the premises on or defendant sought damages for harassment she allegedly suffered before she

had engaged in a course of conduct designed to force the defendant to leave, defendant became a tenant at sufferance. The court found that the plaintiff In May 2004, the trial court ruled that after the foreclosure, the

property during the time that the defendant had refused to vacate, while the action continued – the plaintiff sought damages for his inability to rent the p. 3 He contends that his actions were permissible under the common law, and

in accordance with this opinion.

only duty he owed her was to refrain “from doing her willful or wanton injury.” withheld.” 49 Am. Jur. 2d the premises is the reasonable rental value for the time possession is the proper measure of recovery “against a tenant for the failure to surrender

plaintiff and remand for recalculation based upon the rate of $1,100 per month of the plaintiff’s damages. Accordingly, we vacate the award of damages to the trial court’s determination that $1,100 per month is the rate for the calculation 3

Because the defendant was a tenant at sufferance, the plaintiff argues that the

We agree. In the absence of proof of special damages, the general rule is that

the previous rental rate.”

including such time prior to August 18. On appeal, neither party contests the tenant who was willing to take possession prior to August 18.

The plaintiff next challenges the damages awarded to the defendant.

he had procured a tenant who was willing to take possession prior to that date.

or on the proven reasonable value independently established if that differs from

for the reasonable value of the premises for the time possession was withheld, presumably because the plaintiff presented no evidence that he had found a who was a tenant at sufferance. Thus, we conclude that the defendant is liable occupancy prior to August 18 did not cause any damage to the plaintiff, We see no reason why a similar rule should not apply to the defendant, the defendant timely vacated. The court concluded that the defendant’s

34 Reporter’s Note 2. requires the tenant to pay for what he got during the holdover period.” Id. at Tenant § 14.5 (1977). As the Reporter’s Note explains, this rule “simply occupation of the premises prior to August 18 despite his failure to prove that Restatement (Second) of Property, Landlord and

property during the holdover period at a rate based on the previous rental rate, after the termination of a lease “for the use and occupation of the leased that a landlord is entitled to recover from a tenant who improperly holds over consistent with the view of the Restatement (Second) of Property, which states

The plaintiff argues that he is entitled to damages for the defendant’s only. trial court’s findings, and we review the trial court’s decision for errors of law

award damages for the period prior to August 18, 2003, however, as that was the defendant’s failure to timely vacate the premises. The trial court refused to July 11, 2003, through January 1, 2004, at a rate of $1,100 per month, due to The trial court’s order states that the plaintiff requested damages from

See Atwood v. Owens, 142 N.H. 396, 396-97 (1997).

court. Accordingly, we assume that the evidence was sufficient to support the We have not been provided with transcripts of the proceedings in the trial law, we stated:

p. 4 does not necessarily mean that it still endures. If there was

arrears. While doubting that distress for rent was ever a part of our common

to a convenient distance, without breach of the peace, doing them no question is whether that common law remedy continues to exist. self-help was once available in circumstances such as are presented here. The circumstances existing when the Constitution was adopted

furniture, she was asserting her common-law right of distraint for rent in tenant owed rent. The landlord argued that in seizing and holding the

had been converted to a tenancy at sufferance, where the goods were removed

prior rental or lease agreement. Thus it appears that under the common law, The fact, however, that it may have been adapted to

chapter 540-A do not apply, we must now address that issue. then only for such excess.” possession of the demised premises, unless there is an excess of force, and

(1944). In that case, a landlord detained a tenant's furniture because the We considered an analogous issue in Standish v. Moldawan, 93 N.H. 204

a landlord who entered and removed goods of a tenant whose prior tenancy

different leasehold tenancy.” rights under the common law to a tenant at sufferance who did not have a evicting a residential tenant whose tenancy at sufferance was preceded by a party has cited any authority, and we are aware of none, that gave greater RSA chapter 540-A “removed the landlord's common law right to self-help in arose outside of the rental or leasehold context and thus the provisions of RSA Sterling v. Warden, 51 N.H. 217, 232 (1871). No

courts, . . . no civil action lies against a landlord for regaining with force the once noted that under the “strongly preponderating opinion of the American

sufferance arising outside of the rental or leasehold context.” sufferance – in particular, they do not apply in “cases of a tenancy at At common law, no action for trespass to land or goods would lie against

expiration of a lease or rental agreement. We concluded that the enactment of possession actions. Because the tenancy at sufferance in the instant case continues to co-exist with RSA chapter 540, which provides for summary had no need to consider whether the common law right to self-help otherwise law right to self-help for tenancies at sufferance like the one at issue in Hill, we Because we concluded that RSA chapter 540-A removed the landlord's common

the relevant prohibitions in RSA chapter 540-A do not apply to every tenancy at

with respect to tenancies at sufferance that result from holding over after the In Hill v. Dobrowolski, 125 N.H. 572 (1984), we addressed a similar issue

was entitled to use self-help in an attempt to gain possession of the premises. continue to be so in light of RSA 540:26 (1997). In essence, he argues that he controlling law preserves the right of self-help.

p. 5 generally satisfactory to settle disputes between landlord and tenant.”

statutory summary process, a superior court may still use its equity possession of the leased property from such tenant, unless the

be as speedy as self-help, “it is the one that the Legislature has deemed

remedies may be available in appropriate cases – despite the existence of the possession. Realty Co. v. Buck. . . the landlord . . . [may not] resort to self-help to recover, 104 N.H. 199, 201 (1962). Furthermore, other judicial

benefits which a landlord did not enjoy at common law. We have recognized that while the remedy by summary process may not predecessor to current RSA chapter 540. These statutes established rights and possessory actions were authorized beginning with RS chapter 209 (1843), the a at 11. Restatement (Second) of Property, Landlord and Tenant, supra § 14.2 comment Restatement (Second) of Property, Landlord and Tenant, supra § 14.2 (1); see help. Indeed, the

was designed to provide an expeditious remedy to a landlord seeking tenant improperly holding over after the termination of the lease, remedy for the recovery of possession of leased property from a If the controlling law gives the landlord . . . a speedy judicial

result from holding over after the expiration of a lease or rental agreement: order to simplify and facilitate the owner's recovery of possession, summary legislative intent to the contrary, with respect to tenancies at sufferance that summary process should substitute for the right of self-help, absent clear

Restatement (Second) of Property contends that a statutory

The statutory summary process provides an alternative to the use of self-

available remedy. Matte v. Shippee Auto, 152 N.H. 216, 218 (2005). attachment for household furniture, and concluded that distraint was not an N.H. 266, 267 (1975). The statutory process was intended to be summary and

particularly applicable. no law should survive the reasons on which it is founded is we begin by noting that the legislature has provided a statutory remedy. In existence of a self-help remedy for cases such as the one before us has passed, In determining whether the time when the public interest requires the

debtor’s rights could be found in statutes providing exemptions from Standish, 93 N.H. at 205. We noted that “[c]urrent public opinion” concerning

that time has long since passed. This being so, the rule that ever a time when the public interest required its existence, sufferance such as the one in this case.

p. 6 conclude that the modern rule should apply with respect to tenancies at

the right of self-help. on the street or in the gutter. property from the tenant, unless the controlling law also preserves some other orderly process, rather than by physical confrontation 6

hard-pressed to see why these same considerations should not lead us to premises under most circumstances by enacting RSA 540-A:2 and :3. We are

tenant may resort to self-help to recover possession of the leased government, and those who do not, resolved in the courts or by

the landlord.”

to resist an unlawful arrest, we stated: motivated the legislature to prohibit the use of self-help to regain possession of State v. Haas, 134 N.H. 480, 484 (1991). Similar considerations likely

termination of the lease, neither the landlord nor the incoming have apparent differences between those who wield the authority of leased property from a tenant improperly holding over after the passing day is enlightened when its laws reflect a high purpose to by his own means to remove a tenant who is claiming possession adversely to tenant a speedy judicial remedy for the recovery of possession of A society which seemingly becomes more complex with each violent breach of the peace inheres in any situation where a landlord attempts

For example, in noting that the legislature has abolished the common law right For similar reasons, other changes have been made to the common law.

comment a at 11. See Restatement (Second) of Property, Landlord and Tenant, supra § 14.2 own hands, thereby improving the prospects for preserving the public peace. important public policies by preventing landlords from taking the law into their

Berg v. Wiley, 264 N.W.2d 145, 151 (Minn. 1978). It furthers

them. . . . If the controlling law gives the landlord or an incoming (1966). The modern trend is “founded on the recognition that the potential for Annotation, Tenant – Dispossession Without Process, 6 A.L.R.3d 177, 186 49 Am. Jur. 2d Landlord and Tenant § 829 (2006) (footnotes omitted); see

judicial remedy makes a right of self-help unnecessary.

secure the leased premises when the tenant refuses to surrender possession must resort to the remedy that the law provides to Most common . . . is the modern rule that a landlord entitled to

The modern trend has been to recognize that the existence of a speedy

prevent irreparable injury to any litigant. Id. at 202. jurisdiction to preserve the status quo, prevent a breach of the peace, or common law including the remedy of self-help. p. 7 that corrects or counteracts an evil; that is, any remedy permitted under the ambiguous. It can be broadly construed to refer to any right established by law

is consistent with

result we reach today, it is of course free to amend the statutes accordingly.

been preserved by controlling law. The term “legal remedy,” however, is

we therefore construe it accordingly. Our adoption of the narrow construction

appropriate meaning in law, shall be construed and understood and phrases, and such others as may have acquired a peculiar and common and approved usage of the language; but technical words superior court. We hasten to note that if the legislature disagrees with the law possessory actions of ejectment and entry, which could be brought in (2000), which provides: we stated that RSA 540:26 plainly expresses an intent to retain the commonremedy at common law,” to argue that the common-law remedy of self-help has Cooperman v. MacNeil, 123 N.H. 696, 700-01 (1983), where

“Legal remedy” has acquired a peculiar and appropriate meaning in law, and

foreclosure sale to recover possession from a tenant at sufferance has passed. public interest required the existence of self-help for a purchaser at a of the policy reasons discussed above, we conclude that the time when the Words and phrases shall be construed according to the

In construing this ambiguous phrase, we are assisted by RSA 21:2 this chapter shall be construed to prevent a landlord from pursuing his legal extrajudicial remedy. See id. at 1391. 1999). The narrow construction would obviously exclude self-help, which is an historically available in a court of law. Black’s Law Dictionary 1320 (8th ed. can be more narrowly construed as a term of art, referring to a remedy International Dictionary 1290, 1920 (unabridged ed. 2002). Alternatively, it

prescribed in RSA chapter 540. The plaintiff relies upon RSA 540:26, which provides that “[n]othing in

Cf. Standish, 93 N.H. at 205.

sufferance). Indeed, the plaintiff initiated this action by filing a landlord-tenant Dziewisz, 152 N.H. 587, 589 (2005) (“any tenancy” includes tenancies at terminate "any tenancy" by giving occupant notice to quit); AIMCO Props. v.

person in possession, holding it without right, after notice in writing to quit as purchaser at a mortgage foreclosure sale may recover possession thereof from a available to the plaintiff. RSA 540:12 (1997) provides in part that the It is clear that the statutory summary process in RSA chapter 540 was p. 8 8

difficulty rejecting the arguments made by him.

accordance with this opinion. remand for recalculation of that award at the rate of $1,100 per month in

common-law remedy of self-help was not available to the plaintiff, we have no

the defendant. We vacate the damage award of $4, p. 8 876.71 to the plaintiff, and

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ., challenge the amount of the damages awarded. Having concluded that the that his actions were permissible at common law. He does not otherwise part; and remanded. defendant was limited to refraining from doing her willful or wanton injury, and Affirmed in part; vacated in

In summary, we affirm the damage awards of $5,390.09 and $1,030 to

sole arguments with respect to these damages are that his duty to the We now turn to the damages awarded to the defendant. The plaintiff’s