Kelly Dobens et al. v. Scott Fagnant et al.

RSA 205-A:1- Definitions

As used solely in this chapter unless the context specifically requires otherwise:

Nothing herein shall be construed to include campers or recreational vehicles within the definition of "manufactured housing".

II. "Manufactured housing park" means any parcel of land under single or common ownership or control which contains, or is designed, laid out or adapted to accommodate 2 or more manufactured houses. Nothing herein shall be construed to apply to premises used solely for storage or display of manufactured housing.

III. "Person" means any natural person, corporation, partnership, or sole proprietorship.

IV. "Tenant" means any person who owns or occupies manufactured housing and pays rent or other consideration to place said manufactured housing in a manufactured housing park.

VI. "Family member" includes the owner's spouse, son, daughter, mother, father, brother, sister, grandson, granddaughter, stepchildren, stepgrand-children, or first cousins.

VII. "Final unconditional offer" means a fully executed agreement for the sale of a manufactured housing park.

RSA 205-A:3- Termination of Tenancy

A tenancy in a manufactured housing park may be terminated by a manufactured housing park owner or operator upon giving notice in writing to the tenant in the manner prescribed by RSA 540:5 and by first class mail, to remove from the premises within a period of not less than:

I, 30 days, for an action based on RSA 205-A:; 4, I.

II. 60 days, for an action based on RSA 205-A:4, II, III, IV, or V. III. 18 months, for an action based on RSA 205-A:4, VI.

RSA 205-A:4- Permissible Reasons for Eviction

After the effective date of this section, a tenancy may be terminated by a park owner or operator pursuant to this chapter only for one or more of the following reasons:

II. Failure of the tenant to comply with local ordinances or state or federal law or regulations relating to manufactured housing or manufactured housing parks, provided that the tenant is first given written notice of the tenant's failure to comply with said laws or regulations and a reasonable opportunity thereafter to comply with said laws or regulations.

III. Damage by the tenant to the demised property, reasonable wear and tear excepted.

IV. Repeated conduct of the tenant, upon the manufactured housing park premises, which disturbs the peace and quiet of other tenants in the manufactured housing park.

VI. Condemnation or change of use of the manufactured housing park.

RSA 205-A:9 — RSA 540 Applicable Where Not Inconsistent

The provisions of RSA 540 shall apply to tenancies in manufactured housing parks except where such application would produce a result inconsistent with or contrary to the provisions of this chapter.

RSA 358-A:6 — Penalties

Il. Any person who violates the terms of an injunction issued under RSA 358-A:4, III, shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person. For the purposes of this section, the court issuing said injunction shall retain jurisdiction.

III. Any person who subverts the intent and purposes of this chapter by filing false, misleading, or substantially inaccurate statements with the attorney general for the purposes of effecting prosecution under this chapter shall be guilty of a violation.

IV. If any person is found to have engaged in any act or practice declared unlawful by this chapter, the court may award to the state in any action brought under this chapter all legal costs and expenses. RSA 525:12 shall apply to civil actions commenced under this chapter.

RSA 358-A:10 — Private Actions

If the court finds for the plaintiff, recovery shall be in the amount of actual damages or $1, 000, whichever is greater. If the court finds that the use of the method of competition or the act or practice was a willful or knowing violation of this chapter, it shall award as much as 3 times, but not less than 2 times, such amount. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney's fees, as determined by the court. Any attempted waiver of the right to the damages set forth in this paragraph shall be void and unenforceable. Injunctive relief shall be available to private individuals under this chapter without bond, subject to the discretion of the court.

II. Upon commencement of any action brought under this section, the clerk of the court shall mail a copy of the complaint or other initial pleadings to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.

Pursuant to Supreme Court Rule 16(4)(a), the Appellee submits the following limited facts to supplement the facts presented by the Appellant. The landlord-Appellee in this case owns and operate Hills Lakeview Trailer Park & RV Park (“Hills Park”), to which the Appellants placed their manufactured housing unit in. The tenants in Hills Park were renewed yearly for the seasonal term, May to October, at the discretion of the Appellant. Appendix (“Appx.”) page (“pg.”) 26. On May 1, 2022, the Appellees sent a rental payment to the Appellant for the park’s 2022 season. Jd. On May 26, 2022, the Appellant returned the Appellees’ check with a note stating that “Hills RV Park will not renewing the contract with Kelly [and] Tammy.” Jd. On July 7, 2022, the Appellee sent all tenants the notice informing the seasonal renters that Hills Park would be “closing its gates on October 31, 2022.” Id.

The Appellants then filed for injunctive relief against the landlord on September 23, 2022, as stated in the Appellant’s statement of facts. The trial court held a final hearing on this matter on October 16, 2023, and issued a seventeen (17) page decision on November 29, 2023. The trial court’s Order found that Hills Park is a manufactured housing park under RSA 205-A and that the Appellees’ were tenants of the park under RSA 205-A. However, the court declined to find that the Appellee violated the notice requirements of RSA 205-A because it found that the Appellee gave proper notice for the expiration of the tenant’s holdover tenancy. The Appellant-tenants filed for reconsideration which the trial court denied on

January 24, 2024. The tenants’ appeal follows.

The lower court did not abuse its discretion when it found that the Appellant’s were not entitled to eighteen months’ notice under RSA 205- A:4, VI. The trial court discussed at length, in light of the facts of this case, the application of RSA 205-A and RSA 540 to holdover tenants in a | seasonal manufactured housing park. The tenants in this case had not paid rent for the 2022 season, despite being allowed to remain there by the landlord. RSA 205-A:4 does not guarantee the right to seasonal park holdover tenants an eighteen months’ eviction notice when the statute does not specifically provide for that relief.

The common law in New Hampshire provides for the rights of leasehold tenants as well as holdover tenants, however the rights of holdover tenants are fact specific. In this case, the season for this park was not year-round, therefore the tenants had primary residences they resided in during the park’s off-season, and the on-season. The Appellee had the discretion to renew or not renew each tenant’s tenancy each year for the upcoming May to October season. The Appellee did not renew the Appellant’s tenancy for 2022, and provided for an expiration of their tenancy, as well as all tenants’ tenancies in the park. The trial court found that the landlord here could provide for an expiration of the Appellants’ tenancies, especially in light of the Appellant’s holdover status pursuant to RSA 205-A.

Consequently, the trial court did not err in not awarding the Appellee’s with damages under RSA 358, as they did not violate RSA 205-

I The trial court did not abuse its discretion or err, when it found the Plaintiffs in this case were not entitled to eighteen months’ notice, under RSA 205-A:3, III, in order to terminate the Plaintiffs’ tenancy.

The trial court did not abuse its discretion or err in finding that the Plaintiffs were not entitled to eighteen months’ notice in order to regain possession of the premises or that the Appellee did not circumvent the statutory requirements under RSA 205-A. The “trial court is in the best position to assess the credibility of witnesses and weigh the evidence before it.” In re Choy, 154 N.H. 707, 713 (2007). Therefore, the Supreme Court “will not disturb the trial court's finding unless unsupported by the evidence or plainly erroneous as a matter of law.” In re Zachary G., 159 N.H. 146, 157 (2009).

Here, the trial court found that the manufactured housing park, Hills Park, qualified as a manufactured housing park under RSA 205-A:1, which is not contested by either party, because there were two (2) manufactured housing units in the seasonal RV park. Appx. pg. 28-9. Instead, the Appellant argues that RSA 205-A:3 requires that the Plaintiffs were entitled to an eighteen (18) month notice period for an eviction for an intent to change the use of the manufactured housing park, despite their holdover status in a seasonal park. The seasonal aspect of the park was not being changed, however it would strictly be an RV park.

The Appellant further argues that, because the trial court found that the manufactured housing park fell under the definition prescribed in RSA

205-A:1, and the Plaintiffs/Appellants were found to be tenants for the

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period of 2021 and 2022, the Appellee was required to provide eighteen months’ notice before evicting for an intended change of use under RSA 205-A:3, III. However, the Appellants misconstrue the statutory interpretation engaged by the trial court, and its appropriate refusal, to insert language into the statue that it does not provide for; namely, holdover tenants in seasonal manufactured housing parks.

It is important to note that this case involved a hybrid situation with a seasonal park that qualifies as a manufactured housing park under RSA 205-A because at the time the lawsuit was filed, there were more than two (2) manufactured housing units in the park. Contrary to the Appellants’ allegations that RSA 205-A commands certain notice requirements for all holdover tenants, RSA 205-A does not specifically address seasonal parks, let alone holdover tenants in seasonal parks. This is evidenced by the trial court’s examination of RSA 540 as it clearly found RSA 205-A does not address this issue specifically as to holdover tenants. See RSA 205-A:9 (“The provisions of RSA 540 shall apply to tenancies in manufactured housing parks except where such application would produce a result — inconsistent with or contrary to the provisions of this chapter.”). The trial court’s order also cited Horton v. Clemens, 173 N.H. 480, 483 (2020) in finding that the court cannot modify a statue “[w]hen the language of the statute is clear on its face.” Appx. pg. 28.

The Appellant argues that the statutory intention behind the eighteen (18) months’ notice requirement provided for an eviction under RSA 205- A:3, III is that the tenant “must not only move all of his or her possessions, but must... move his or her mobile home, [and it] is sometimes even more

difficult to find a mover and a new lot.” However, that statutory intention in

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this case is defeated upon examination into the fact that this park is a seasonal park, and the Appellants acknowledged having a full-time residence outside the park. Appx. pg. 34, 39. Further, the facts showed that the Appellants were given notice in May of 2022 that their seasonal membership in the park would not be renewed, therefore finding movers or a new lot would not have been a rush had the Appellants not ignored this notice, and remained at the park without taking any steps to move. Finally, it is important to note that the trial court also provided relief to the Appellants while still finding for the landlord/Appellee, as its final Order allowed the Appellants to notify the Appellee within thirty (30) days of the Clerk’s Notice whether or not they will remove their manufactured housing unit from the RV park. Appx. pg. 39-40. The Order further states that, thereafter, if the manufactured housing unit is not removed from the RV park, the Appellees can remove the unit and pursue costs at a later time. Jd. The Order of the trial court is a well-reasoned Order that is consistent with the law.

Furthermore, the trial court’s decision hinged upon the fact that there was a contractual relationship between the tenant and the landlord in the form of a seasonal lot rental agreement. As there is no statute as to the rights of holdover tenants in seasonal manufactured housing parks, the court’s examination of the Plaintiff/Appellants rights was a question of fact. See Austin v. Thomson, 45 N.H. 113, 121 (1863) (finding “it remains a question of fact, whether there was any express or implied agreement by which such a tenancy was created.”). The trial. court’s order found that where the Appellants were in fact tenants in a manufactured housing park

in 2021 and 2022, their status as seasonal holdover tenants required

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examination into the lease agreement’s language in this case to determine their rights as holdover tenants. Appx. pg. 33.

Although the Appellant attempts to argue that all holdover tenants are guaranteed the same rights as leasehold tenants, the trial court’s order does address this issue at length, and is consistent with New Hampshire law. The terms of a holdover tenants’ rights are a question of fact, as they are dictated by the previous lease terms or by an agreement after its expiration. See Russell v. Fabyan, 34 N.H. 218, 223 (1856). Therefore, in determining those rights, the trial court properly examined the parties’ lease terms prior to its expiration. See Appx. pg. 32-3.

Here, the facts presented showed the parties had a seasonal lot rental agreement. The Appellees were allowed to remain in the park for the 2022 season. However, the notification received by the Appellees contained in the July 7, 2022, notice provided that no seasonal renters would be allowed to keep their units in the park after October 31, 2022. Appx. pg. 26. Therefore, the terms of the parties’ previous lease, governs any future tenancy and when the term expired. When combined with the fact that the Appellants were not offered a seasonal rental agreement for the 2022 or 2023 season, the notice provided to the Appellants on July 7, 2022, explaining no tenants could remain beyond the end of the park’s season in October 2022, was an appropriate expiration date to their tenancy.

The Appellant attempts to argue that holdover tenancies cannot expire according to common law. This conclusion is contrary to New Hampshire case law. Holdover tenancies are governed by the terms of the expired lease. Park Square Auto. Sation v. Locomotive Co., 79 N.H. 497, 499 (1920). Therefore, the lease term in the expired lease, determines the

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holdover lease term, and creates a separate tenancy. Jd. Renewal of a new holdover tenancy is a question of fact based on the parties’ conduct. See Colonial Village v. Pelkey, 157 N.H. 91, 93-94 (2008) (“Whether a landlord has waived the right to evict a tenant or created a new tenancy presents an issue of fact that requires balancing the evidence to show consent or a contrary intent.”). Here, the Appellant’s tenancy expired pursuant to its term expressed by the Appellee.

Here, the lease term, as indicated by both parties, was from May to October. Therefore, despite the Appellee’s refusal of the Appellant’s 2022 rent payment, any holdover tenancy for 2022 expired under the same terms as when the Appellee’s were tenants in 2021. Once the Appellee sent the notice that no tenants could remain in the park beyond the 2022 season, or October 15, 2022, the Appellee affirmatively stated that the holdover lease term would end on October 15, 2022, as it would for the remaining leasehold tenants. Therefore, the Appellants’ holdover tenancy could terminate, as this park was only open for four (4) months out of the year therefore their holdover term ended when the park’s season ended, and the Appellee properly noticed all tenants, including the Appellants as holdover tenants, that it would not be creating any new tenancies for 2023.

The Appellant then argues that even if holdover tenancies can expire, they were entitled to notice pursuant to the requirements in RSA 205-A:3, III. The Appellant argues that, as found in Aimco, “a landlord may not evict a tenant under RSA chapter 540 simply because the tenant’s lease expired.” See Appellant’s Brief pg. 19. The important distinction is that the trial court here found that the tenants’ tenancy was not based on a lease or

even a holdover period by October 31, 2022. The holdover tenancy itself

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was terminated by the notice dated July 7, 2022 providing notice that no tenant could remain beyond the park’s season ending on October 15, 2022. To further argue that continued tenancy resulted after October 31, 2022 is not only contrary to New Hampshire law and it is contrary to the facts in this case.

The facts also show, as explained by the trial court, that the tenants did not pay rent for the 2022 season, and referenced RSA 205-A:4, I which is the nonpayment of rent grounds for an eviction. The parties agree that the Appellants did not pay rent for the 2022 season, therefore, after receiving the July 1, 2022 notice, they were given more than thirty (30) days to move their manufactured housing unit or the period would expire. See Appx. pg. 35-6. Therefore, the notice would be proper under RSA 205-A: 4 as it was well beyond the thirty (30) days notice provided under the statue, and the also included a notice of nonrenewal. The Court correctly found that the holdover tenancy properly expired on October 15, 2022.

The Appellant cites Aimco and states that there, the Court’s ruling stands “for the broad proposition that landlords cannot terminate a tenancy merely because the tenancy’s term expired.” Aimco Props. v. Dziewisz, 152

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The trial court discussed the distinction between the reasons for an eviction and the expiration of a lease under RSA 540 versus RSA 205-A. Aimco is specific to RSA 540, and provides for grounds for an eviction under other good cause, but does permit expiration of a lease to be included in other good cause, while RSA 205-A does discuss expiration. The trial court cited RSA 205-A:4, I where it states an action “for possession shall be maintained if prior to the expiration of an eviction notice.” Appx. pg. 36. The expiration of a tenancy under RSA 205-A:4, I permitted the tenant to remove their manufactured housing unit and retain ownership if removed within 30 days. Therefore, expiration of the tenancy in this case was appropriate, and the trial court did not err in finding that Aimco does not apply to a seasonal manufactured housing park, especially with a holdover tenant who has not paid rent.

Here, Hills RV Park is a seasonal park, where the tenants held over for a seasonal period, and had notice of the park’s intent to change for over three (3) months. The term of the Appellants’ tenancy in this case has always been from May to October 31, each season, and the park is not their primary residence. Appx. pg. 38. Therefore, the facts of this case cannot be equated to the concern and risk discussed in Aimco, and there is clear notice and an expiration date. There is not a risk that the Appellants here, would be evicted from a month-to-month lease after a 30-day notice. To find a continued tenancy in the park’s off-season despite the parties ongoing agreement since the inception of the park, would be contrary to the facts in this case and would establish a right that goes well beyond the rights of tenants prescribed by RSA 205-A or RSA 540.

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II. The lower court did not err or abuse its discretion in finding the Defendant did not engage in unfair or deceptive trade practices as plead under RSA 358-A.

The Appellants argue that the trial court abused its discretion and erred in finding that the Appellee did not violate RSA 205-A, and therefore erred when it did not award the Appellants attorney’s fees and costs under RSA 358-A:10. The Appellants further state that the Appellee sought to circumvent RSA 205-A by giving less than eighteen (18) months’ notice to the Appellants, therefore the trial court was required to award the tenant’s damages, costs, and attorney’s fees.

First, the trial court did not err in failing to find that the Appellee’s did not circumvent RSA 205-A as discussed above. The Appellants were not entitled to the notice under RSA 205-A, and the statute does not provide for notice in a seasonal manufactured housing park as it applies to holdover tenants. Second, the trial court did not err in denying an award of attorney’s fees, costs, and damages to the Appellants because the trial court is not required to award the tenants under RSA 358-A:10 because (1) it did not find for the Appellants, and (2) the trial court was not provided with any facts or testimony of the Appellee’s knowing and willful violation of RSA 358-A:10.

RSA 358-A:10 states in part

If the court finds that the use of the method of competition or the act or practice was a willful or knowing violation, of this chapter, it shall award as much as 3 times, but not less than 2 times, such amount. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney’s fees, as determined by the court.

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Nothing in the facts of this case!, or in the trial court’s Order, evidence any willful or knowing conduct on the part of the Appellee to circumvent RSA 205-A or engage in unfair business practices. “RSA 358— A:10 unambiguously mandates an award of enhanced damages only when the court finds that there has been a ‘willful or knowing violation’ of the Consumer Protection Act, RSA chapter 358—A.” Simpson v. Young, 153 N‘H. 471, 476 (2006) (emphasis added). This is consistent with the Supreme Court’s rulings where there have been arguments that RSA 358-A must impose strict liability on any violation, and the Court has declined to do so. Kelton v. Hollis Ranch, LLC, 155 N.H. 666, 668 (2007). The Court has found that “the legislature's use of the words “deceptive” and “unfair” as requiring a degree of knowledge or intent.” Also is discussed in Snierson v. Scruton, a willful or knowing violation is one made with reckless disregard to their truth or assertions. 145 N.H. 73 (2000). Conversely, a good faith mistake, cannot satisfy the standard for a willful and knowing violation. See Kelton, 155 N.H. at 667-9 (finding that “in order for a misstatement to constitute a violation [of the statute], the defendant must be aware or, at a minimum, have a reasonable basis to suspect that its representation is unreliable or untrue.”).

Here, the Appellant did not testify or present evidence to the trial court to evidence any willful or knowing acts on the part of the Appellee, that would be required to prove that he was intending or acting in reckless disregard as to RSA 205-A. Hills Park is not a traditional manufactured

housing park and does not operate year-round. Further, the tenants in this

' Of note a transcript was not ordered by the Appellant for this Court to examine the testimony heard by the trial court at the final hearing in this matter.

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case were holdover tenants, as the Appellee did not accept their rent to allow them to remain at the park as leasehold tenants. The Appellants were therefore starkly different tenants than those evicted under RSA 205-A, which is clear considering the trial court here affirmatively stated that RSA 205-A has not addressed this issue. Appx. pg. 38-9.

Further, assuming in arguendo that a willful violation could be found, the trial court is not required to award damages. RSA 358-A:6, IV states that “If any person is found to have engaged in any act or practice declared unlawful by this chapter, the court may award to [the Plaintiff] in any action brought under this chapter all legal costs and expenses.” (Emphasis added). Therefore, contrary to the Appellants’ assertion, a prevailing party who can show and establish a knowing and voluntary violation of RSA 358-A is still not required to be awarded damages, and the trial court may award damages in its discretion. The Appellant cannot assert the trial court here was required to award the Appellant damages or that the trial court violated the law when RSA 358-A:6, IV provides that

even if the plaintiff prevails, statutory damages may be awarded.

The trial court did not abuse its discretion or err in finding that the Appellee did not violate RSA 205-A and that the Appellants were not entitled to eighteen months’ notice under RSA 205-A:4, IV. The trial court

fully examined the facts and law present to determine the rights of holdover tenants in a seasonal manufactured housing park. The trial court

appropriately denied an award of damages under RSA 358, and would not

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be required by the statute to provide damages even if it did find the Appellee liable.

I hereby certify that the decision being appealed is addended to this brief.

Thereby certify that pursuant to Supreme Court Rule 16 (11), this brief does not exceed 9, 500 words exclusive of pages containing the table of contents, tables of citations, and any addendum containing pertinent texts of constitutions, statutes, rules, regulations, and other such matters. The word count for the Statement of the Case, Summary of the Argument, Argument, Conclusion, and Oral Argument is 3, 036.

I further certified that on August 13, 2024, copies of the within Brief have been electronically served through the Court’s electronic filing system to all attorneys and to all other parties who have entered electronic service contacts in this case and to Scott Fagnant.