2007-349, COLONIAL VILLAGE, INC. v. ROBERT PELKEY

Devine, Millimet & Branch, P.A.

No. 2007-349 Manchester District Court

that the landlord’s acceptance of rent created a new tenancy, thus requiring accepted rent from the tenant. At the first eviction hearing, the tenant argued 2005, the landlord served the tenant with a notice to quit, but, thereafter,

THE SUPREME COURT OF NEW HAMPSHIRE lease agreements with the tenant from 2002 through 2005. In September

of the Manchester District Court (Lyons DALIANIS, J. The defendant, Robert Pelkey (tenant), appeals a decision The record supports the following: The landlord entered into consecutive

, of Manchester (Brian C. Shaughnessy

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. Opinions are available on the Internet by 9:00 Supp. 2007). We affirm. Village Inc. (landlord), possession of his apartment. See RSA ch. 540 (2007 &

the brief and orally), for the defendant. Kazan & Shaughnessy, PLLC on

brief and orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: , of Manchester (Holly J. Kilibarda on the

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as evidentiary support or are erroneous as a matter of law. Miller p. 2 We will not disturb the findings of the trial court unless they lack

rent did not waive its right to evict him. The tenant appealed the trial court’s ruling that the landlord’s acceptance of was informed “by letter that the eviction would proceed even if rent was paid.”

upon Miller

are found in the instant case.” The trial court went on to state that the tenant

acceptance of rent creates a new tenancy as a matter of law, relying principally the landlord to begin eviction proceedings anew. He argues that a landlord’s pending possessory action because doing so waives the notice to quit, requiring 2

25, 2002. Id go forward while the [landlord] continued to accept rent. Those circumstances It further found that “there are circumstances that could permit an eviction to trial court ruled in favor of the landlord, finding good cause to evict the tenant.

, we held that a landlord had created a new or renewed tenancy

The tenant argues that a landlord may not accept future rent during a

intention to serve him with a second notice to quit. See law. Id. at 657. When the tenants failed to pay April rent, the landlord In a letter dated July 12, 2006, the landlord notified the tenant of its findings, and then whether the court's decision is consonant with applicable landlord and tenants had entered into a residential lease which expired on May by accepting future rent. Miller, 150 N.H. at 657, 660-61. In that case, the independently for plain error. Id In Miller After the second eviction hearing, in an order dated April 17, 2007, the

.

August 18, 2006, the landlord served the tenant with a new notice to quit. See

. Finally, we review questions of law de novo. Id.

whether the evidence presented to the trial court reasonably supports its

659. Legal conclusions, as well as the application of law to fact, are reviewed

future rent should not be construed as a waiver to issue a notice to quit.” On

eviction action, and the tenant continued to occupy the apartment. will proceed regardless of rent payment.” Accordingly, it dismissed the first a presumption of waiver, such as placing the tenant “on notice that the eviction accepted. RSA 540:2, II (2007). The tenant continued to pay the landlord rent, which it

The letter stated, “please be advised that [the landlord’s] acceptance of . . .

landlord had not accepted the rent under circumstances that would overcome bring a new eviction action. The trial court, also citing Miller, found that the rental arrearages from the tenant, created a new tenancy and was required to who had obtained a writ of possession, but thereafter accepted future rent and Enterprises, 150 N.H. 655, 657, 661 (2004), in which we held that a landlord p. 3 Our decisions in this case and Miller

proceed with the eviction proceedings.”

landlord sent a letter to the tenant’s attorney stating that it “intend[ed] to evict him. Further, after the tenant was served with a notice to quit, the notice that the landlord’s acceptance of future rent would not waive its right to

dismissed and before the second one was initiated, served to put the tenant on

July 12 letter, given to the tenant after the first eviction proceeding was served him with a notice to quit, we disagree. In the context of this case, the July 12 letter was ineffective because it was given to him before the landlord

by accepting rent from the [the tenant].” Though the tenant argues that the

The tenant concedes that “the [landlord] did not intend to create a new tenancy . . . future rent should not be construed as a waiver to issue a notice to quit.” The July 12 letter expressly stated that “[the landlord’s] acceptance of creates a presumption of a new tenancy, while others do not. Compare analysis of the evidence. Some courts have held that acceptance of rent

intent.” Annotation, Landlord Consent to Extension or Renewal of Lease as question that requires “balancing of the evidence to show consent or a contrary

141 (Ill. App. Ct. 2005) (no presumption). However, all agree that where there 1987) (presumption created) with Wang v. Marcus Brush Co., 823 N.E.2d 140, Corcoran Management Co. v. Withers, 513 N.E.2d 218, 222-23 (Mass. App. Ct.

agreement on the general rule, there is a split among jurisdictions concerning Shown by Acceptance of Rent, 45 A.L.R. 827, 831 (1956). Though there is

(2003). Whether a landlord has waived the right to evict a tenant is a fact to quit by thereafter accepting rent unqualifiedly.” 52 C.J.S. Landlord § 294 jurisdictions, which have held that “[a] landlord may waive the effect of a notice

would not waive its right to evict him.

proceed with the eviction despite accepting future rent. Unlike Miller

have been reached. We now make explicit what we implied in Miller

tenancy. Id case notified the tenant in its July 12 letter that its acceptance of future rent not waive its right to evict them, Miller, 150 N.H. at 661, the landlord in this the landlord failed to notify the tenants that its acceptance of future rent did exchange for the tenants’ payment of the April and May rent. Id, in which Here, the trial court did not err when it ruled that the landlord could brought an eviction action and obtained a writ of possession. Id landlord’s acceptance of future rent does not necessarily create a new tenancy.

notified the tenants that he intended to evict them, a different result might writ of possession despite the payment,” id., implying that if the landlord had not inform the tenants either orally or in writing that he intended to enforce the

. However, we noted “that it is undisputed that the landlord did

under these circumstances, the parties created either a new or renewed accepted the tenants’ rent without qualification. Id. at 661. We ruled that

the landlord agreed to let the tenants remain on the premises until May 25 in

tenants for non-payment of rent] . . . [to] accept rental arrearages . 5 p. 4 40:13, VII (2007) “affirmatively creates a safe harbor for landlords [evicting

rent. However, the trial court did not rely upon that statute, nor could it. RSA

BRODERICK, C.J.