2014-0578, Mountain View Park, LLC v. Gerald Robson, Jr.

, joined, dissented. DALIANIS, C.J., and HICKS, J., concurred; LYNN, J., with whom

are deemed waived. See In re Estate of King, 1 p. 4 49 N.H. 226, 230 (2003). (2007). Finally, any issues raised in the notice of appeal, but not fully briefed, addressing the [plaintiff]’s concerns.” Petition of Kilton, 156 N.H. 632, 645 are reserved for the legislature, and we therefore leave to it the task of we appreciate the importance of such considerations, “[m]atters of public policy the trial court’s decision, this argument is made in the wrong forum. Although including the prevention of the defendant’s homelessness, require us to reverse To the extent that the plaintiff asserts that public policy considerations,

regular monthly rent. in the record con tain explicit provision s regarding the future payment of the fact that, unlike the agreement at issue here, none of th e other agreements court in the past. However, in making this argument, the plaintiff disregards has “the exact same structure” as similar agreements approved by the trial T he plaintiff asserts that the agreement sh ould be approved because it

violates RSA 5 p. 4 40:28. agreement. But, as explained above, the agreement as currently drafted the plain language of RSA 540:13 - c, II would have permitted such an included the provision rega rding the future payment of regular monthly rent, addressing the payment of the defendant’s rent arrearages and had not We observe, however, that, had the agreement been limited to solely

court’s decision declining to approve the agreement. to appeal decisions to the supreme court). Accordingly, we affirm the trial standards of fitness for health and safety); RSA p. 5 5 p. 4 40:20 (2007) (allowing parties 540:13 - d (2007) (providing defenses in cases involving violations of the 540:9.”); RSA 54 0:13 - a (2007) (providing for the defense of retaliation); RSA payment of the arrearages and liquidated damages in accordance with RSA notice shall inform the tenant of his or her right, if any, to avoid the eviction by 540:3, IV (2007) (“If the eviction notice is based on nonpayment of rent, the rent, as such an agreement would be null and void. See id.; see also, e.g., RSA challenge a ny possessory action based upon his nonpayment of future monthly 540:28. See id. The defendant cannot — in an agreement — waive his right to his occupancy after the agreement was entered into. T his is prohibited by RSA possession based upon the defendant’s failure to pay regular monthly rent for the pla in language of the agreement also allow ed f or the issuance of a writ of of possession so long as the defendant made payments toward his arrearages, Although the agreement provided that the plaintiff would not seek a writ 5

a notice of default to the tenant and issue a writ of possession to the land lord” provides that if such rent is not paid, “the [circuit] court shall immediately mail ongoing rent “weekly and in advance” during the pendency of the appeal, and (2007). This provision requires a tenant desiring to purs ue an appeal to pay been issued by the trial court wishes to appeal to this court. See RSA p. 5 540:25, I utilized exception applies when a tenant against whom a writ of possession has of RSA chapter 540 provide exceptions to the general rule. One frequently However, when an eviction proceeding is already extant, several sections

initiation of a new eviction proceeding. prohibits an eviction based on nonpayment of as - yet - undue rent without the chapter with respect to future rent payments. In ot her words, the general rule agreement whereby a tenant prospectively waives his protections under the The majority correctly interprets this statute to prohibit the enforcement of any rights under [RSA chapter p. 5 540], and any such waiver shall be null and void.” agreement. . . shall contain any provision by which a tenant waives any of his Here, RSA 540:2 8 sets forth the general rule: “N o lease or rental

wrongful eviction action). aforesaid rule in construing RSA chapter p. 5 526 and RSA chapter 540 - A in and citation omitted)); Favazza v. Braley, 160 N.H. 349, 352 (2010) (applying conflict, the more specific statute controls over the general statute.” (quotation effectuate the l egislative purpose of the statute. To the extent two statutes not contradict each other, and so that they will lead to reasonable results and which deal with similar subject matter, we will construe them so that they do EnergyNorth Natural Gas, 164 N.H. at 16 (“When interpreting two statutes conflict.” Appeal of Johnson, 161 N.H. 419, 424 (2011) (quotation omitt ed); see will be regarded as an exception to the general enactment where the two another deals with a part of the same subject in a more detailed way, the latter construction that where one statute deals with a subject in general terms, and N.H. 14, 16 (2012) (quotation omitted). “It is a well - recognized rule of statutory consistent with each other.” EnergyNorth Natural Gas v. City of Concord, 164 established: “Where reasona bly possible, statutes should be construed as circumstance. Our methodology of construction in such cases is well establishes an exception to the general rule that applies to a specific case of one statute setting forth a rule of gene ral applicability while another relationship between RSA 540:13 - c, II and RSA 540:28. This presents a classic At the heart of the statutory interpretation issue in this case is the

respectfully dissent. statutes, nor their intende d objective s, supports the majority’s construction, I who have fallen behind in their rent payments. Because neither the text of the us, all but insures that the former statute will be of no assistance to tenants manner tha t, contrary to the wishes of both the landlord and the tenant before the majority interprets RSA p. 5 540:13 - c, II (2007) and RSA 540:28 (2007) in a LYNN, J., dissenting. In the name of “protecting” the rights of tenants, p. 6 6

the majority holds that, if what the tenant fails to pay is ongoing rent and not request issuance of a writ of possession at the time the agreement is breached, tenant’s rights and is unenforceable. Instead of allowing the landlord to payments, the majority insists that the agreement impermissibly waives the agreement also encompasses the tenant’s obligation to make ongoing rent is made, i.e., rent arrearages, in accordance with the agreement. If the where the tenant fails to pay rent that is already due at the time the agreement for the issuance of a writ of possession at the request of the landlord only rent,” the majority concludes that the statute authorizes agreements that allow RSA 540:13 - c, II (emphase s a dded). Focusing on the words “nonpayment of

issued u pon request of the plaintiff. payments are not made when due, a writ of possession shall be with a schedule designated in the agreement. However, if such not be issued, if the defendant makes payments in accordance spite of the judgment for the plaintiff, a writ of possession shall parties in a case of nonpayment of rent from agreeing that, in Nothing in this section shall be construed to prohibit the

exception to the general rule. It states: RSA 540:13 - c, II, the provision applicable to this case, provides another

the landlord to commence a new eviction pro ceeding. writ of possession shall be issued and the tenant evicted without the need for advance the future rent that becomes due during the period of the stay, the makes clear tha t if a tenant who has been granted a stay fails to pay in possible.” Id. (emphasis added). Again, the plain language of this statute possession shall be issued and the sheriff shall evict the tenant as soon as rent. . . and on default of any such advance weekly payment a writ of tenant is required to “pay the landlord weekly in advance th e weekly former evidence.” RSA 540:13 - c, I. If the court grant s such a stay, however, the good faith of the parties in their respective reports, comp laints, demands, and circumstances justice requires suc h stay, based on the reasonableness and tenant for up to three months if the court decides “that under all the recovery of possession in favor of the landlord, to stay the dispossession of the This statut e allows the circuit court, after it has rendered a judgment for the Another exception to the general rule is found in RSA 540:13 - c, I (2007).

due until final disposition of the appeal). wishes to appeal trial court’s ruling, he must pay ongoing rent as it becomes tenant in eviction action be acc ompanied by notice informing tenant that if he appeal”); RSA 540:13, II(d)(3) (200 p. 7 7) (requiring that writ of summons served on after notice of appeal is filed “for the purposes of collecting rent pending I; see also RSA 540:20 (2007) (granting circuit court continuing jurisdiction without the need for the landlord to initiate a new eviction action. RSA 540:25, 7

action in order to evic t the tenant. subject to the agreement and would therefore require the landlord to initiate a new possessory would be terminated at that point, any failure to make rent payments due thereafter would not be balance on the arrearage, the landlord will “drop” th e possessory action. Because the action construction of the statute. The agreement specifically provides that, upon reaching a zero The agreement at issue here is entirely consistent with what, in my view, is this proper 1 intended “payments” to be limited to past due rent payments, it would have accordance with a schedule designated in the agreement.” If the legislature shall not be issued, if the [tenant] makes payments of past due rent in thus interpreting the pertinent language as if it stated: “a writ of possession majority, however, reads the word “payments” as “payments of past due rent,” designated in the agreement.” RSA 540:13 - c, II (emphasis adde d). The not be issued, if the [tenant] makes payments in accordance with a schedule states that, when an agreement has been reached, “a writ of possession shall e.g., Strike Four v. Nissan N. Am., 164 N.H. p. 7 729, 735 (2013). The statute language to RSA 540:13 - c, II that the legislature did not see fit to include. See, Second, in violation of our canons of construction, the majority adds

event the tenant fails to make re ntal payments that become due thereafter. 1 that the landlord should be required to initiate a new eviction proceeding in the matter no longer “a case of nonpayment of rent,” and it is only at that point the arrearage (and any ongoing rent due in the interim) is fully paid is the without the necessity of commencing a new eviction proceeding. Only when obtain a writ of possession for breach of either term of such agreements becomes due until the arrearage is fully retired, and that allows the landlord to arrearage according to the schedule (2) while also paying all ongoi ng rent that construed to permit agreements that require a tenant (1) to pay off the his default, see RSA 540:25, I; RSA 540:13 - c, I, RSA 540:13 - c, II should be other circumstances where a tenant is allowed to remain in possession despite the legislature intended it to be interpreted in this fashion. Rather, just as in period after it. Nothing in the language of the statute supports the view that tenancies — one cov ering the period before the agreement and the other the statute, the majority, in effect, transforms a sin gle “case” into one involving two paid in accordance with the agreed - upon schedule. By its construction of the as well as ongoing rent payments that become due in the interim, has been proceeding remains “a case of nonpayment of rent” until the entire arrearage, added). What the majority fails to appreciate is that, once initiated, an eviction a greement “in a case of nonpayment of rent.” RSA 540:13 - c, II (emphasis of possession to be issued at the landlord’s request in the event of breach of the arrearages to be satisfied through a schedule of payments while allowing a writ the words that precede them. The statute permits agreements that provide for focusing on the words “nonpayment of rent,” the majority fails to g ive effect to There are several problems with the majority’s reasoning. First, in

proceeding. arrearage payments, the landlord must commence an en tirely new eviction p. 8 8

N.H. at 660. terms, RSA 540: 13, VII does not apply to the acceptance of future rent payments. See Miller, 150 majority’s construction of RSA 540:13 - c, II, the waiver position asserted in the text because, by its proceed with the eviction, this section would not preclude the tenant from asserting, under the new tenancy, provided the landlord informs the tenant in writing of the landlord’s intention to arrearage payments while a possessory action is pending without being deemed to have created a It must be noted that, although RSA 540:13, VII (2007) permits a landlord to accept rental 2

evidence of waiver of right to recover possession absent new notice”). 2 after termination of tenancy, and acceptance by landlord thereof, is pri ma facie date of valid notice to terminate tenancy, payment of rent in advance for period 21 p. 8 8, 222 - 23 (Mass. App. Ct. 1987) for the “general rule . . . that after effective 655, 661 (2004) (citing Corcoran Management Co., Inc. v. Withers, 513 N.E.2d undertaking a new eviction proceeding. Cf. Miller v. Slania Enters., 150 N.H. arguably may be deemed a waiver of his right to recover possession without fully retired, then the landlord’s acceptance of any future rent payments payment of ongoing rent during the scheduled period until the arrearage is majority holds, RSA 540:13 - c, II does not permit agreements that require h is failure to make the agreed - upon payments on the arrearage. If, as the action even where it is absolutely clear that the tenant is in breach because of the landlord will not be able to evict the tenant without commencing a new Fourth, the majority’s construction of the statute raises the specter that

proceeding. at the landlord’s request and without the need to commence a new eviction tenant has breached the agreement and the writ of possession may be issued under the construction that I assert to be correct the answer is clear — the majority’s construction of the statute, the answer is anybody’s guess, whereas without a new proceeding. How would the court resolve this issue? Under the should be attributed to the arrearage, thus allowing for issuance of the writ proceeding. Th e landlord, on the other hand, will claim that the shortfall and that no writ of possession may issue absent an entirely new eviction arrearage, that the shortfall therefore is attributable to ongoing (future) rent, the tenant will naturally claim that he has fully paid the amount of the entirely new eviction proceeding? If the landlord request s issuance of the writ, possession simply by asking the circuit court to issue it, or must he initiate an is able to pay only $600 in the third month. Could the landlord obtain a writ of rent payments. After complying with the agreement for two months, the tenant $200 per month for the next five months while also timely making all ongoing an agreement that requires the tenant to retire the arrearage at the rate of in the amount of $1,000 (two mon ths’ rent), the landlord and tenant enter into lease requires the tenant to pay rent of $500 per month. When he is in default the fact that money is fungible. Consider the following simple example. A Third, th e majority’s interpretation of the statute fails to take account of

merely construes, the statute. said so. By adding such language, the majority effectively amends, rather than p. 9 9

prohibited, it seems doubtful that the landlord will enter into such agreements in the future. has made clear that the requirement to pay ongoing rent during the arrearage period is the obligation to pay ongoing rent as an implicit term of these agreements. Now that the majority such agreements is ambiguous on th is point and the landlord’s brief suggests that he regarded request if the tenant did not pay both the arrearage and ongoing rent, I note that the language of ongoing rent and no explicit language allowing the landlord to obtain a writ of possession on entered into agreements for the payment of an arrearage with no mention of the payment of To the extent that the majority’s opinion suggests that the landlord in this case has previously 3

adverse consequences for tenants that may result from eviction). See AIMCO Props. V. Dziewisz, 152 N.H. 587, 5 p. 9 91 (2005) (describing potential protecting — likely will bear the brunt of the adverse effects of today’s decision. not worth it. Unfortunately, tenants — whom the majority believes it is 3 and ongoing rent, will conclude that entering into such agreements is simply required if the tenant is unable to pay both the scheduled arrearage amount that, pursuant to the majority’s construction, a new eviction proceeding will be that a landlord who has already obtained a judgment and who understands evict ion would find such an arrangement at all attractive. Much more likely is imagine why any landlord who has already o btained a judgment that permits payments that are smaller than the amount of the ongoing rent, it is hard to Because it is fair to assume that most such agreements will call for arrearage reallocates payments from ongoing rent to payments on the arrearage. if the tenant, instead of “catching up” on his or her obli gations, merely ability to obtain possession without the delay and expense of filing a new action U nder the majority’s construction of the statute, the landlord is deprived of the be deprived of the opportunity for a second chance to remain in their homes. that landlords will be less likely to do so, which in turn means that tenants will major incentives for a landlord to enter into such an agreement. This means tenant has agreed to retire the arrearage, the majority elimi nates one of the tenant defaults in the payment of ongoing rent during the period in which the landlord may obtain possession without instituting a new proceedi ng if the By holding that the statute pre cludes the parties from agreeing that the

on any money judgment the landlord may obtain. the need for further court proceedings and the uncertainty of trying to collect the agreement. The landlord also benefits by being paid the arrearages without issuance of the writ of possession if the tenant fails to comply w ith the terms of retaining the ability to quickly execute on the judgment merely by requesting o btaining a judgment, the landlord avoid s the need to find a new tenant while landlord benefits because, after establi shing the right to possession and eviction and by being given more time to “catch up” on the arrearage. The the tenant has fallen behind in rent payments. The tenant benefits by avoiding interest to do so, to maintain their ongoing relationship despite the fact that statute is to permit landlords and tenants, when each believes it is in his or her beneficent goals the statute is designed to achieve. The obvious purpose of this Finally, the majority’s construction of RSA 540:13 - c, II undermines the p. 10 10

BASSETT, J., joins in the dissent.

respectfully dissent. and leads to results clearly contrary to what the legislature int ended, I by the plain language of the statute, is inconsistent with the statutory scheme, Because the majority’s construction of RSA 540:13 - c, II is unsupported