Monday, March 1, 2010

March 2010 - Ask the Expert Q&A with Attorney Fred Mayer

March 2010 – Ask the Expert

Thank you Attorney Fred Mayer for hosting our first Ask the Expert column.

About Attorney Mayer

Fred K. Mayer III is a sole practitioner in Nashua, NH, where his practice is focused on the representation of landlords. Although he appears most frequently in the Nashua and Derry District Courts, his landlord/tenant cases have taken him to 21 district courts in various counties throughout the state, to the Worcester and Northeast Housing Courts of Massachusetts, to the New Hampshire Supreme Court and, on one occasion, to federal court. He has represented landlords and property management agents in evictions, RSA 540-A:4 petitions, security deposit disputes and other landlord/tenant litigation. He lectures frequently on topics relating to landlord/tenant law. On occasion, Attorney Mayer has testified before committees of the New Hampshire legislature when bills affecting landlord/tenant practice were being considered. Mr. Mayer received his B.A., with distinction, from George Washington University and his J.D. from Georgetown University. He is on the Board of Directors of Neighborhood Housing Services of Greater Nashua. He is also a member of the New Hampshire Property Owners Association. You can contact Attorney Mayer at 603-881-9876

1. How many days does a landlord have to respond to a tenant’s request?

If the request is for the repair of a code violation, consistent with RSA 540:13-d,I(b), the repair should be performed within 14 days of the receipt of a written request or, in an emergency, as promptly as conditions require.

2. One of my tenants is two weeks late paying their rent. I served them a Notice to Quit and Demand for Rent but I don’t know what I should do next if they don’t pay their rent or move out.

Notices to Quit are now called "Eviction Notices." The day after the Eviction Notices expire, the landlord can file a Landlord and Tenant Writ in district court.

3. I handed my tenants a Notice to Quit and Demand for Rent and now they’ve given me half of the money owed. Can I continue with the eviction?

To preserve his right to continue with the eviction process upon receipt of a partial payment, a landlord must give the tenant written notice of his intent to proceed with the eviction despite the payment. The relevant statute, RSA 540:13,VII, does not specify exactly when the written notice should be given to the tenant, but the conventional wisdom is that the notice should be given to the tenant right away.

4. My tenant moved out and didn’t leave a forwarding address. I know I have to notify them about their security deposit within 30 day. What if I can’t find them? Will I be in trouble?

Per RSA 540-A:8,II, a landlord shall not be liable nor forfeit any rights if his failure to comply with the security deposit statute is due to the failure of the tenant to notify the landlord of his new address upon termination of the tenancy.

5. I heard that it’s illegal in NH to ask for the last month’s rent. Is this true? What can I ask for legally?

Generally speaking, RSA 540-A:6 permits a residential landlord to take a first month's rent and a security deposit. Because of the way RSA 540-A:5 defines the term "Security deposit," a landlord will indeed violate the statute if the landlord requests or accepts a last month's rent in addition to a security deposit.

6. I was in the process of evicting a tenant and they moved out leaving most of their belongings behind. How long must I hold on to their belongings? Can I move them to another location so I can rent the apartment?

RSA 540-A:3,VII requires that a landlord maintain and exercise reasonable care in the storage of the personal property of a tenant who has vacated the premises, either voluntarily or by eviction, for a period of 28 days after the tenant has vacated.

7. How long after a tenant leaves without any notice is the apartment considered abandoned? I haven’t seen anyone living there in over a month and no rent has been paid.

Neither the statutes nor the cases decided by the New Hampshire Supreme Court offer clear guidance as to when an apartment can be considered abandoned. There is, however, a case in which a tenant was gone for two-and-a-half months and the landlord was nevertheless held liable for an unlawful eviction. Therefore, in the absence of a written surrender of premises, I would serve a demand for rent and eviction notice at the premises and then complete the eviction process, including the service of a Writ of Possession.

8. I filed for a LT hearing at the district court and now the tenant has also filed against me. What should I do now?

If the tenant filed an Appearance, a notice of hearing will issue. The landlord should bring three copies of all relevant documents to the hearing to present as evidence. In a nonpayment of rent case, this would include the demand, the notice, the lease and a rent ledger.

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