2012-198, Mary Evans v. J Four Realty, LLC & a.

Waystack Frizzell, Trial Lawyers, of Colebrook (Philip R. Waystack and

No. 2012-198 1st Circuit – Lancaster District Division

attorney’s fees and costs, see RSA 540-A:4, IX(a) (Supp. 2012). We affirm in

Kazan, Shaughnessy, Kasten & McDonald, PLLC, of Manchester (Brian

part, reverse in part, and remand. page is: http://www.courts.state.nh.us/supreme. petitioner, Mary Evans, and awarding her actual damages of $3,000 and a.m. on the morning of their release. The direct address of the court's home that it violated RSA 540-A:2 and :3, II (2007) by using self-help to evict the reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 order of the 1st Circuit Court – Lancaster District Division (Patten, J.) finding DALIANIS, C.J. The respondent, J Four Realty, LLC (J Four), appeals an

C. Shaughnessy on the brief and orally), for the respondent.

Sandra L. Cabrera on the brief, and Ms. Cabrera orally), for the petitioner.

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 p. 2 “We review the trial court’s legal rulings de novo, but defer to its findings

evidentiary hearing, the trial court ruled in her favor, and this appeal followed.

and :3, II and seeking damages under RSA 540-A:4, IX(a). Following an

chapter 540-A, alleging that the respondent’s conduct violated RSA 540-A:2 The petitioner brought a petition against the respondent under RSA

petitioner complied with the agent’s demand.

had to leave her apartment with all of her property by the end of the day. The

residence with a deputy sheriff and a town police officer and told her that she petitioner’s apartment to evict her. The agent arrived at the petitioner’s On August 3, 2008, the respondent dispatched its agent to the

owner of the resort. unaware of the foreclosure, the petitioner continued to pay rent to the prior 2008, having purchased it at a foreclosure sale in late 2007. Because she was The respondent became the owner of the resort property on January 9,

review the trial court’s statutory interpretation de novo. Town of Atkinson v. RSA 540-A:1, I (2007) defines a “[l]andlord” as “an owner, lessor or agent

in isolation. Id. with the resort’s prior owner. resided in the apartment as a tenant at will pursuant to an informal agreement have said or add language that the legislature did not see fit to include. Id. We

a whole. Id. When examining the language of the statute, we ascribe the plain

housing or space in a manufactured housing park to another person.” thereof who rents or leases residential premises including manufactured this issue requires that we interpret the pertinent statutory provisions. We

also interpret a statute in the context of the overall statutory scheme and not the hotel portion of the resort. The petitioner did not have a written lease; she from the statute as written and will not consider what the legislature might and ordinary meaning to the words used. Id. We interpret legislative intent

intent of the legislature as expressed in the words of the statute considered as Malborn Realty Trust, 164 N.H. 62, 67 (2012). We are the final arbiter of the

that it was a “landlord” within the meaning of RSA chapter 540-A. Resolving The respondent first argues that the trial court erroneously determined

(2012) (quotation omitted). of fact if supported by the record.” O’Hearne v. McClammer, 163 N.H. 430, 436 petitioner’s apartment was adjacent to the resort’s office and was not part of resort called “Naturally New Hampshire Healthfully Yours Resort, Inc.” The bedrooms, a kitchen, a living room, and one bathroom, which was part of a

petitioner lived for approximately five years in an apartment with two The trial court found, or the record supports, the following facts. The p. 3 Texas law on this point, the petitioner’s and respondent’s post-foreclosure

circumstances, assuming, without deciding, that our law is consistent with

that entire time, the petitioner paid rent to the prior owner. Under these petitioner for eight months after becoming the owner of the premises, during petitioner pay rent. Although the respondent did not attempt to remove the

leasing the house to [her].” Jacob, 902 S.W.2d at 533. Although the

evicted. Nor is there any evidence that the respondent ever demanded that the

refusals to accept rent” from her, “revealed only unwavering disinterest in

apartment.” She was not even aware of the foreclosure until the day she was occupy the premises and pay rent to the FDIC, which accepted it. Twelve respondent and was never “specifically aware that [the respondent] owned her In this case, the petitioner concedes that she never paid rent to the

to lease the property after foreclosure,” the mortgagee, “through its repeated landlord/tenant relationship by implication. See Twelve Oaks Tower I v. Texas law, the petitioner argues that she and the respondent created a new The petitioner raises three arguments in response. First, relying upon

Corporation (FDIC) had foreclosed upon the property, the tenant continued to

Id. (quotation omitted). Thus, in Twelve Oaks, a new landlord/tenant relationship arose by property, this was “insufficient as a matter of law to give rise to a new lease.” relationship.” Id. at 632. mortgagee instructed the tenant to “sit tight” until it obtained clear title to the

landlord/tenant relationship. See id. By contrast, a “landlord’s either

(Tex. App. 1994), however, although the tenant “clearly manifested her desire tenant relationship.” Id. For such a new relationship to be found to exist, Oaks, 938 S.W.2d at 110. In ICM Mortgage Corp. v. Jacob, 902 S.W.2d 527

meaning of RSA 540-A:1, I, it is not a “landlord.” Aspenwood Apartment Corp. v. Coinmach, Inc., 349 S.W.3d 621, 631 (Tex. implication when, after learning that the Federal Deposit Insurance petitioner’s apartment to her. Thus, the respondent reasons, under the plain

demanding rent or accepting it constitutes an election to create a tenancy

mere continuation in possession does not, without more, establish a new “both parties must manifest consent to enter into a new lease.” Id. A tenant’s

purchaser at a foreclosure sale may “independently enter into a new landlord- App. 2011), review granted, (Tex. 2012). When this occurs, the tenant and the

foreclosed upon, the general rule is that a tenant’s lease is terminated.” definition because, while it owned the premises, it neither rented nor leased the created a new lease”). Under Texas law, “[w]hen a landlord-mortgagor is (Emphases added.) The respondent contends that it does not meet this payment and acceptance of rent payments with full knowledge of foreclosure, foreclosure conduct, including continued possession of the premises and Premier Allergy, 938 S.W.2d 102, 110 (Tex. App. 1996) (“parties’ postsuch possession shall continue.” Public Service Co. v. Voudomas, 84 N.H. 387,

p. 4 aptly concluded, at that point, the petitioner became the respondent’s tenant at

only between the original parties.” Restatement (Second) of Property: Landlord

the premises leased for such indefinite period as both parties shall determine 4

prior resort owner necessarily terminated upon foreclosure. As the trial court Because it was only a tenancy at will, the petitioner’s tenancy with the took the resort property subject to her tenancy at will. See, e.g., Restatement continue.” Restatement (Second) of Property: Landlord & Tenant § 1.6

retain their original interests. Hence the tenancy at will can inherently exist its continuance. They are in a position to exercise this will only so long as they “A tenancy at will is an estate which simply confers a right to the possession of The petitioner, however, had only a tenancy at will with the prior owner.

that acquired property in foreclosure sale).

these circumstances, the respondent, as the purchaser at the foreclosure sale, depends upon the presence of the landlord’s and tenant’s wills that the tenancy & Tenant, supra § 15.1 comment b at 86. obtained the mortgage at issue in 2006. The petitioner argues that, under agreement with the prior resort owner in 2003, and the prior resort owner

because “[a] tenancy at will inherently exists only as long as both parties will Restatement (Second) of Property: Landlord & Tenant, supra § 15.1. This is cannot be assigned or transferred.” Voudomas, 84 N.H. at 389; see other party agree otherwise.” Id. “It is well settled law that a tenancy at will ineffective against a subsequent bona fide purchaser,” including purchaser dies, the tenancy ceases “unless the decedent’s successor in interest and the comment e at 39 (1977). Thus, for instance, when either the landlord or tenant

391 (1930) (quotation omitted). “The continuance of the tenancy at will than the mortgagor had, and becomes the landlord of the lessee.”). See owner predated the mortgage at issue. She entered into the informal mortgage; the purchaser at the foreclosure sale acquires no greater interest mortgage on the same premises, are not extinguished by a foreclosure of the

foreclosed.”); 55 Am. Jr. 2d Mortgages § 595 (2009) (“The rights of a tenant in

A.2d 1197, 1200-01 (D.C. 2009) (if lease with prior owner is not recorded, it “is (generally, foreclosure terminates prior lease); but cf. Molla v. Sanders, 981 14 A.L.R. 664 (1921). But see Aspenwood Apartment Corp., 349 S.W.3d at 631 generally Annotation, Effect of Foreclosure of Mortgage as Terminating Lease,

meaning of RSA chapter 540-A because her tenancy at will with the prior Next, the petitioner asserts that the respondent is a landlord within the possession of real estate, under a lease given prior to the execution of a landlord/tenant relationship, as a matter of law. interests in the foreclosed real estate that are senior to the mortgage being conduct did not evince their mutual consent to enter into a new (Third) of Property: Mortgages § 7.1 (1997) (“Foreclosure does not terminate prior resort owner. See Hill, 125 N.H. at 575-76 (explaining that protections of

p. 5 Id. at 574. We disagreed, holding that when the tenancy at sufferance follows

tenancy at sufferance followed the termination of her tenancy at will with the 5

to him because his relationship with the plaintiff was a tenancy at sufferance. On appeal, the defendant argued that RSA chapter 540-A did not apply

used self-help to evict her. Id. at 573-74. The plaintiff sued the defendant for “landlord,” she is entitled to the protections of RSA chapter 540-A because her premises, despite the defendant’s demands that she vacate it, the defendant The petitioner next argues that regardless of whether the respondent is a two days after the passage of title pursuant to a short lease. Hill, 125 N.H. at review. In Hill, the plaintiff and her former husband sold a home to the

the termination of a conventional leasehold relationship”); see Voudomas, 84 dismissal of the RSA chapter 540-A claim. Id. successfully moved to dismiss both claims, and the plaintiff appealed only the states other than New Hampshire. She has not analyzed our statutory scheme trespass and for violation of RSA chapter 540-A. Id. at 573. The defendant however, the petitioner relies upon cases construing the statutory schemes of interests unaffected by foreclosure and sale). In making this argument, 573, 576-77. When, after the second day, the plaintiff refused to leave the

defendant, and the defendant allowed the plaintiff to remain in the home for circumstances, we consider her argument insufficiently developed for our

N.H. at 390 (tenancy at will is leasehold under New Hampshire law). it. Nor has she addressed New Hampshire case law on this subject. See RSA chapter 540-A apply only to tenancies at sufferance that have “followed possession of the land after the termination of such interest . . . .” Id. at 574

necessary parties to foreclosure action, failure to join them leaves their

been recorded is entitled to notice of foreclosure sale). Under these Snyder v. N.H. Savings Bank, 134 N.H. 32, 37 (1991) (lessee whose lease has

to demonstrate that she was a necessary party to the foreclosure action under

land by virtue of an effective conveyance, wrongfully continues in the

2011) (under New York law, because, by statute, tenants of a property are relationship. See Hill v. Dobrowolski, 125 N.H. 572, 575 (1984). As we Flushing Sav. Bank, FSB v. 509 Rogers LLC, 928 N.Y.S.2d 618, 620 (Sup. Ct. sufferance. A tenant at sufferance is not, however, in a landlord-tenant terminated by the foreclosure because she was not joined as a party to it. See Alternatively, the petitioner asserts that her tenancy at will was not

between [the] landlord and tenant.” Id. at 575 (quotation omitted). (quotations omitted). It is not a “tenancy in fact” because there is no “privity

interest in land which exists when a person who had a possessory interest in explained in Hill: “A tenancy at sufferance has been described generally as an tenants.” Wass v. Fuller, 158 N.H. 280, 283 (2009) (quotation omitted). RSA

p. 6 us is whether this factual difference between Hill and the instant case compels

to deter unacceptable landlord conduct rather than to remedy harm to Contrary to the petitioner’s assertions, “[t]he focus of RSA chapter 540–A . . . is ellipses omitted)). “Of course, if the legislature disagrees with our construction, RSA 540-A:1, I, or that it could be deemed to have done so by operation of law.

could have so stated. See First Fed. Bank, FSB v. Whitney Dev., 677 A.2d be brought against those who do not “rent[ ] or lease[ ] residential premises,” it

written, according to its plain meaning. See Malborn Realty Trust, 164 N.H. at entered into a leasehold relationship with the respondent. The question before

statute defining “landlord” as “the owner of the dwelling unit” (quotations and any evidence that it ever “rent[ed] or lease[d]” the petitioner’s apartment to her, 1363, 1367-68 (Conn. 1996) (after foreclosure, mortgagee was “landlord” under We decline to hold that the respondent in this case is a “landlord” absent

67. Had the legislature intended damages actions under RSA chapter 540-A to

residential premises.” (Emphasis added.) We must interpret this statute as here, the petitioner was the tenant at will of the prior resort owner. She never 540-A:1, I, specifically defines a “landlord” as one “who rents or leases

of RSA chapter 540-A. Id. at 577. us to reach a different result than we did in Hill. We conclude that it does. relationship.” Id. at 575, 577. Likewise, because of the two-day lease, the tenancy at sufferance followed the termination of “a conventional leasehold We also held that because of the short two-day lease, the plaintiff’s defendant, making the defendant her “landlord” under RSA chapter 540-A, than the respondent. Whereas in Hill the plaintiff had a two-day lease with the conventional leasehold relationship, she had the leasehold with someone other although the petitioner’s tenancy at sufferance followed the termination of a Application of Hill to the instant case is problematic, however, because,

chapter 540 applies to tenancies at sufferance. Id.; see AIMCO Props. v. “circumvent lawful procedures for eviction pursuant to RSA 540,” and that RSA defendant was a “landlord” and the plaintiff was a “tenant” within the meaning

self-help to evict tenants at sufferance.” Hill, 125 N.H. at 575. applies. Id. at 575, 576. We explained that when the legislature enacted RSA procedures under RSA chapter 540, it is clearly forbidding landlords to use “the termination of a conventional leasehold relationship,” RSA chapter 540-A . . . forbids a residential landlord to attempt to circumvent the eviction chapter 540 applies to tenancies at sufferance). “Therefore, when RSA 540-A:2 Dziewisz, 152 N.H. 587, 589 (2005) (holding that current version of RSA

540-A:2 generally prohibits a residential landlord from attempting to preceded by a different leasehold tenancy.” Id. at 575. We observed that RSA self-help in evicting a residential tenant whose tenancy at sufferance was chapter 540-A, it intended to “remove[ ] the landlord’s common law right to apartment.” In light of these findings, which the respondent does not challenge

p. 7 “residential tenant” of the resort, who resided in a two-bedroom “full

unavailing. The trial court specifically found that the petitioner was a dwellings rented for recreational or vacation use”). This argument is purposes” except for “[r]ooms in hotels, motels, inns, tourist homes and other

which was not rented for residential purposes. See RSA 540:1-a, I, II, IV(b) RSA chapter 540 because the petitioner’s apartment was merely a hotel “room,” case. The respondent contends that it could not use the summary process in Our decision in Greelish is dispositive. The defendant in Greelish had a

recover possession from a tenant at sufferance has passed.” Greelish, 154 N.H.

id. at 527; see RSA 540:12, and that “the time when the public interest (2007) (defining restricted property as real property rented for “residential process for eviction, we disagreed. Id. at 524-27. We concluded both that “the After reviewing development of the common law and the statutory

statutory summary process was not available to evict the petitioner in this because her tenancy at sufferance, unlike the tenancy at sufferance in Hill, The respondent argues that Greelish is distinguishable because the without right, after notice in writing to quit the same as herein prescribed.”). from a lessee, occupant, mortgagor, or other person in possession, holding it at 527.

required the existence of self-help for a purchaser at a foreclosure sale to the defendant to leave. Id. at 521-22. Each party sued for damages. Id. at statutory summary process in RSA chapter 540 was available to the plaintiff,” terminated. Id. Thereafter, although the plaintiff filed a landlord-tenant writ to

arose outside of the rental or leasehold context. See id. at 524.

plaintiff argued that he was entitled to use self-help to evict the defendant self-help constructive eviction.” Id. (quotation omitted). On appeal, the foreclosure sale of any tenement or real estate may recover possession thereof whom the court found to be a tenant at sufferance, constituted “an attempted 522. The trial court found that the plaintiff’s harassment of the defendant,

evict her. To the contrary, a purchaser at a foreclosure sale may not use self- establish his right to possession, he also engaged in conduct intended to force

property was sold to the plaintiff at a foreclosure sale, the life estate was life estate in certain residential property. Greelish, 154 N.H. at 521. When the

it is free to amend the statute as it sees fit.” Wass, 158 N.H. at 283. For all of

(2006); RSA 540:12 (2007) (“The owner, lessor, or purchaser at a mortgage help to evict a tenant at sufferance. See Greelish v. Wood, 154 N.H. 521, 527

within the meaning of RSA chapter 540-A, it was entitled to use self-help to The respondent argues that because it was not the petitioner’s “landlord”

respondent was a “landlord” under RSA chapter 540-A. the above reasons, therefore, we reverse the trial court’s determination that the p. 8 8

the petitioner may seek leave to amend her writ to correct this deficiency. Cf.

chapter 540-A claim is not viable against the respondent, we remand so that under RSA chapter 540-A. Having determined that the petitioner’s RSA appeal, the parties have represented that the petitioner alleged only a claim CONBOY, LYNN and BASSETT, JJ., concurred. Greelish, 154 N.H. at 521-22 (purchaser at foreclosure sale sued for merely “incidental.” Id. at 399. Under these circumstances, we held that the part; and remanded. recovery could apply to the facts of this case. See Hill, 125 N.H. at 573 (in Affirmed in part; reversed in At oral argument, the parties agreed that a common law theory of claim). ERG, Inc. v. Barnes, 137 N.H. 1 p. 8 86, 189 (1993) (relating to pre-trial dismissal of

Atwood, rented only a residential unit; she did not rent the commercial

harassment). However, although the petition was not included in the record on

addition to claiming statutory violation, tenant sued landlord for trespass); commercial, to run the bed and breakfast; its residential component was

was not entitled to use self-help to evict the petitioner. detailed above, we uphold the trial court’s determination that the respondent Atwood v. Owens, 142 N.H. 396 (1997), which is distinguishable from this case. property in which the residential unit was located. Accordingly, for the reasons In making this argument, the respondent relies upon our decision in

purpose of the petitioner’s tenancy was residential. She, unlike the tenants in process under RSA chapter 540 was unavailable. at 396, 399; see RSA 540-A:6 (2007). In the instant case, by contrast, the sole and the record supports, we disagree with the respondent that the summary statute regarding security deposits for residential premises did not apply. Id.

happened also to live on premises, the primary purpose of the leasehold was breakfast.” Atwood, 142 N.H. at 397 (quotation omitted). Although they The tenants in Atwood rented a tavern “for the purpose of operating a bed and