2010-765 Phyllis Buatti v. Alicia Prentice

Phyllis Buatti, by brief, pro

No. 2010-765

Concord District Court

“unless the total rent and $15.00 ($615.00), pursuant to RSA 540[:]9, is with a “notice to quit” requiring her to deliver up the premises to the landlord 2010, to September 11, 2010. On September 12, 2010, the tenant was served the rent was in arrears in the amount of $1,520.00 for the period from July 18, September 7, 2010, the tenant was served with a demand for rent alleging that The tenant rents an apartment in Pittsfield from the landlord. On

judgment entered by the Concord District Court (DeVries LYNN, J. The defendant, Alicia Prentice (tenant), appeals from a

Alicia Prentice, by brief, pro

possession. We reverse. plaintiff, Phyllis Buatti (landlord), ruling that the landlord is entitled to a writ of

THE SUPREME COURT OF NEW HAMPSHIRE se.

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 to press. Errors may be reported by E-mail at the following address: 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 strict compliance with RSA chapter 540 lay with the landlord. Part of that p. 2 provided to us indicates that total rent due was $600. The burden of proving alleges that the arrearage was $1,520. The September 12, 2010 notice to quit Here, the September 7, 2010 demand for rent provided to us on appeal

court. See 2 that the evidence was sufficient to support the result reached by the district below. In the absence of a transcript of the trial in the district court, we assume The tenant has not provided us with a transcript of the hearing held

prove the amount of the arrearage requires reversal in this case. demand is made.” RSA 540:8 (2007). rent. We conclude, however, that the court’s finding that the landlord failed to lessor shall not demand a greater sum than the whole rent in arrears when evidence supports the trial court’s finding that the tenant is not current on her demand may be made when the rent is due or while it is in arrears, but the the specific amount due. In the absence of a transcript, we assume that the for “[n]eglect or refusal to pay rent due and in arrears, upon demand.” “Such the amount owed. The court ruled that both parties were unable to establish terminate a tenancy by giving the tenant a notice in writing to quit the premises is not current on her rent, but further found that it was unable to determine 115 N.H. 266, 267 (1975). RSA 540:2, II(a) (2007) authorizes the landlord to that she did not owe any back rent at all. The trial court found that the tenant v. Burlington Coat Factory of N.H., 159 N.H. 494, 498 (2009); Lavoie v. Szumiez, Thereafter, the tenant appealed. demand exceeds the amount of back rent actually owed – indeed, she argues common law, strict compliance with its terms is required. So. Willow Properties “outrageous amount[] owed, that didn’t add up.” She contends that the that chapter establishes rights and benefits that a landlord did not enjoy at The tenant challenges the demand for rent, stating that it sets forth an The landlord’s eviction action is governed by RSA chapter 540. Because

landlord is entitled to possession of the property.

See Atwood v. Owens, 142 N.H. 396, 396-97 (1997). Accordingly, we will review the district court’s decision for errors of law only.

Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).

is entered that rent has not been paid as required [and] that were unable to establish a specific amount due although a finding although the exact amount of arrearage is unclear. Both parties The Court finds that the Tenant is not current on her rent

Following a hearing, the district court issued an order stating: you.” Thereafter, the landlord sought a writ of possession in the district court. received in accordance with the demand for rent served simultaneously upon are not proven, it should so find. If that amount equals or exceeds the amount p. 3 the evidence that some amount certain was due, even if other amounts claimed We note that if the trial court is able to determine by a preponderance of

Nowell

reasonable opportunity to pay . . . .” 49 Am. Jur. 2d Landlord and Tenant requirement has not been modified or changed by the statute. is to deny the landlord’s petition for a writ of possession. “A tenant possesses a right to a demand for payment of rent and to a demand must be of the precise amount of rent due; and this actual arrearages due, the only remedy available that will “cure” this deprivation in this state, except as it has been modified by statute. Under it, the In this case, because the landlord failed at the hearing to prove the amount of the The common law on the subject of tenancies has been adopted part, of his or her right to avoid the eviction by paying the actual arrearages due. demand exceeds the actual arrearage, then the tenant is deprived, at least in expiration of the notice. See RSA 540:3, IV (2007); RSA 540:9 (2007). If the payment of the arrearages plus $15.00 as liquidated damages prior to the the notice shall inform the tenant of his or her right to avoid the eviction by that when an eviction notice is based upon nonpayment of rent, after demand, Nowell v. Wentworth (2006). RSA chapter 540 furthers this purpose of a demand for rent by requiring The same result would have been reached under the common law. In § 246

it remains the law that the demand must not be for a greater sum than was due. common law requirement that the demand be of the precise amount of rent due, amount due. See Laws 1905, 57:1. Thus, while the legislature has modified the of the precise amount of rent due, nor prohibited a demand for less than the not exceed the amount due; the legislature neither required that the demand be legislature adopted the requirement in what is now RSA 540:8 that the demand , 58 N.H. at 319 (citations omitted). After Nowell was decided, the

than was due. The demand was not sufficient because it was for a greater sum

demand for rent, and concluded:

the landlord. arrears when demand was made, the trial court erred by awarding judgment to failed to prove that she did not demand a greater sum than the whole rent in amount of rent had not been paid as required. As it follows that the landlord the amount of the arrearage – the trial court found simply that an unspecified made. Here, the trial court specifically found that neither party was able to prove did not demand a greater sum than the whole rent in arrears when demand was burden was proving compliance with RSA 540:8; i.e., proving that the landlord p. 4 Reversed

RSA 540:8, should it wish to do so, by enactment of appropriate legislation. determine the proper remedy for a landlord’s failure to prove compliance with Finally, we emphasize that it is within the power of the legislature to

DALIANIS, C.J.