Monday, March 14, 2016

Legislative Update, 2016 #10== Prepare now to show up strong for the Major bills once they are in the Senate. Many bills with Full House decisions. Soon bills will cross over to Senate

Howdee everyone,
Important Updates:
Many of the major bills this session are going very well for us.  However, HB1370 is one exception.
(new info on HB1370).
HB1370, 7 Days Eviction Notice
HB1370 has now passed the House.  Soon it will “cross over” to the Senate.
We have communicated to many landlords at this point and have received an overwhelming agreement that we will attempt removing the “venue” amendment.
Along those lines, a lobbying firm has been hired to assist with removing this troublesome “venue” amendment.
When HB1370 reaches the Senate we will need an overwhelming response from every one from there on out through the rest of the legislative process this season to win the uphill battle to defeat the “venue” amendment.
Update from lobbying in Washington DC.
I was able to achieve appointments with ALL our NH legislators and have delivered your input to them.  
This includes
US Representative Guinta
US Representative Kuster
US Senator Shaheen
US Senator Ayotte
Slowly our Legislative Initiative is broadening its base of influence.
Action items this week:
See more info in Summaries & Full Detail for each bill further below. (includes property owner position, contact info, Talking points, and more).
(to jump right to bill detail, use Control-F, Find).
Hearings this week:
None scheduled so far
Hearings next week:
None scheduled so far
Further below is:
Bills Updated Status summary:
Full details on all bills above
(Which includes property owner position, contact info, talking points, and more)
Love & Light,
Nick Norman
Director of Legislative Affairs
We only list the committee reports on the most important bills affecting the real estate business.  If you want to get the committee report on one of the other bills contact me & I will show you how to get them on line.  Its not terribly hard to get but not straight ahead either.
Bills Updated Status summary:
We only list the committee reports on the most important bills affecting the real estate business.  If you want to get the committee report on one of the other bills contact me & I will show you how to get them on line.  It’s not terribly hard to get but not straight ahead either.
HB1656, Real Estate Transfer Tax Exception     
Title: relative to exceptions to the real estate transfer tax.
Property Owner Position: For
House Status: OUGHT TO PASS.
Rep. Gary Azarian for Ways and Means. This bill creates an exemption from the Real Estate Transfer Tax 
for transfers of like ownership. For example, if an individual or couple who own property wishes to transfer 
that property to an LLc or trust with like ownership for estate planning purposes. With this bill this type of 
transfer would be exempt from the Real Estate Transfer Tax. 
Vote 20-0.
Senate Status: none
HB1370, 7 Days Eviction Notice     
Title: relative to termination of tenancy.
Property Owner Position: For, If amended removed
Rep. Timothy Horrigan for Judiciary. This bill, as amended, represents a compromise between landlord and 
tenant advocates. Landlords would benefit because 7-day evictions could be carried out when tenants fail to 
establish utility service, or when unauthorized persons stay on the premises for extended periods. Tenants 
would benefit because evictions (either 7-day or 30-day) would require a writ of summons, which must be 
filed in the district court for the municipality where the property is located. 
Vote 10-1.
Senate Status: none
HB1204, Eviction Workout     
Title: relative to payment of rent pending the stay of an eviction proceeding.
Property Owner Position: 
Rep. Claire Rouillard for Judiciary. This bill as amended allows a tenant and a landlord to negotiate and 
enter into an agreement to pay past due rent, which includes an agreement of the tenant to waive any right 
to appeal. This agreement allows the tenant to remain in their home if timely payment of arrearage and 
future rents are made. 
Vote 18-0.
Senate Status: none
HB1196, Higher Damage Amount In Eviction Case    
Title: relative to the amount of a money judgment for unpaid rent.
Property Owner Position: For, If Amended.
Rep. Kurt Wuelper for Judiciary. This bill sought to increase the maximum money judgment order in an eviction case from $1,500 to $5,000. The committee believes that this would cause many more evictions to move 
to Superior court, defeating the purpose of the increase. 
Vote 14-0.
Senate Status: none
SB395, Landlord Required To Install AC Units    
Title: relative to minimum housing standards for tenants with health or respiratory issues.
Property Owner Position: Against
House Status: none
Senate Status: INTERIM STUDY
Full details on all bills above:
HB1656, Real Estate Transfer Tax Exception
01/12/2016 at 01:30 PM    LOB Room 202
Title: Title: relative to exceptions to the real estate transfer tax.
Summary: This bill would allow people to transfer real estate, without being subjected to the real estate transfer tax, between entities with the same ownership, and assets and liabilities.  
Property Owner Position: For
Email to Committee: 
Subject: HB1656 
Analysis Stated in Bill: 
Talking Points:
This is important to us, as it would allow us to transfer assets into or out of LLC’s or trusts without the transfer taxes. Given some of the rules that the Federal Government has imposed in regard to refinancing, this bill is very helpful. Also, it is important for estate planning purposes and liability protection purposes.   Why should we be taxed just because we have decided to restructure our assets into LLC's or Trusts.
HB1370, 7 Days Eviction Notice
01/26/2016 at 10:00 AM    LOB Room 208
Title: Title: relative to termination of tenancy.
Summary: This bill reduces the eviction notice from 30 days to 7 days in the following instances:
Failure of tenant to put utilities in their name when required to do so.
Someone staying in the unit who is not on the lease for more than 14 days consecutive or 30 days in a calendar year. There was also a very troublesome amendment added during the House session that requires all evictions to be filed in the venue where the property resides.
Property Owner Position: For, If venue amendment removed
Email to Committee: 
Subject: HB1370 
Analysis Stated in Bill: 
Talking Points:
There is a terrible “venue” amendment that was proposed at the Judiciary Committee initial public hearing now called the “Horrigan, 2016-0433h amendment”.
First we will address this “venue” amendment which take away a landlord’s option to hold eviction hearings in the court where the property owner resides.
It is our position that this amendment is far more troublesome to almost all landlords than the benefit of the reduced eviction notice times in the original bill.
Therefore, we are recommending that this amendment be taken off the bill.  If the amendment is not taken off the bill we recommending killing the entire bill.
Here are some thoughts relating to the amendment taking away a landlord’s option to hold eviction hearings in the court where the property owner resides.
a. Landlords have way way more eviction hearings than a single tenant so the jurisdiction really should be in the court where the property owner resides.  Also, for one eviction the landlord needs to go to court to:
Get the LT-Writ
Deliver the served LT-Writ
Respond to a change of venue if requested by the tenant
Attend the hearing (where the tenant often does not show up)
Get the Writ of Possession.
4-5 times for the landlord.  Way too much trouble for the landlord who is already inconvenienced by the tenant not paying rent.
Tenant only needs to go twice (file for hearing and possibly request change of venue which could be done by mail), attend hearing (which the tenant often doesn’t do).
0 to 2 times for the tenant.
b. Tenants can request jurisdiction be moved to their location which the court can grant if it sees the need.
c. Tenants very often don't even show up anyway. Requesting a hearing was simply a delaying tactic to achieve more “free rent”.
d. requesting a change of venue and not showing up to court is yet another delaying tactic to achieve more “free rent”.
e. If the tenant paid the rent it would not be an issue.  The landlord is already inconvenienced by the tenant not paying the rent, providing free housing during the eviction process.  Why make the eviction more difficult for the small businessman (landlord)?
This amendment for changing the venue is not needed because present law already states that in cases other than non-payment the court “shall” transfer the venue.   In cases of non-payment the court “may” transfer venue.  The RSA is quoted immediately below.
“RSA 502-A:16-a. Change of Venue in Possessory Actions Regarding Residential Property
Venue in possessory actions concerning residential property brought pursuant to RSA 540 which are initiated in a judicial district other than that in which the defendant resides may be transferred as follows:
I. In cases based on grounds other than nonpayment of rent, venue shall be transferred to the judicial district in which the defendant resides at the request of the defendant.
II. In cases based on nonpayment of rent, venue may be transferred to the judicial district in which defendant resides when the court, in its discretion, determines that justice so requires.”
A plan language explanation of the above provision is included on page two of the LT-Writ underneath the caption in bold titled “Information for tenant”.
Now on to the actual bill.
Last session, 2015, we attempted putting this bill through with the addition of unauthorized pets.
There was a large push back about the 7 day notice for unauthorized pets.  This session we are submitting the bill without the inclusion of unauthorized pets. 
This is one of the major bills this session and we still expect good sized push back and definitely need every one to show up at hearings and communicate to the committees and legislators to support this very important bill.
New Hampshire law allows a landlord in most residential tenancies to evict tenants by serving the tenants either a 7 days Eviction Notice or a 30 days eviction notice. Presently the 7 days eviction notice can only be used in certain limited circumstances.  Those circumstances are: (a) non-payment of rent  (b) substantial damages caused by the tenant, members of his family or guests (c) behavior by the tenant, members of  his family or guest that adversely affects the health, safety of the landlord or other tenants or failure to accept temporary alternative housing during lead paint abatement.  All other evictions require a 30 days Eviction Notice.
This bill has major advantages for landlords in dealing with the tenants who are purposely breaking the terms of a lease in the two circumstances outlined above, or do not have the financial means to abide by the terms of the lease.
HB1370, if enacted, would add two additional circumstances where a landlord could use a 7 days Eviction Notice.  These two are:
(1) Failure to establish utilities in the tenant’s name or terminating utility service when the tenant is required to pay such under the terms of the lease.  Please note, that each of the above categories has to be a breach of the lease.  For those landlords who do not use leases, or do not prohibit these categories in their leases, they would not be able to use the provisions of this bill, if it became law.
(2) a person staying in the leased premises who is not a party to the lease, and does not have the consent of the landlord, for more than 14 consecutive days or more than 30 days in a calendar year 
If a tenant does not put utilities into his or her name, or terminates utilities or has utilities shut off on them, one of two things could happen.  The first is creating a risk of the building freezing during the winter. The longer the utilities are off, the greater the risk of damage to the building. The second is that the utilities are often transferred into the landlord’s name, and the landlord has to pay for services that the tenant agreed to pay for when the tenant signed the lease. Since a landlord may not terminate utilities on a tenant the landlord then remains stuck paying for a tenant’s utilities which the tenant should be paying per the lease agreement. Reducing the time that tenant had to use someone else’s services, would reduce the loss to the landlord. This is no different than a non-payment of rent, especially since rents are reduced when utilities, principally heat, is not included.
The bill would also allow the tenant to cure these lease violations and stop the eviction by having the utilities billed to the tenant and paying the landlord any costs the landlord incurred in the seven days.  The tenant can only cure this violation three times in the last 12 months, however.
Extra people who move into our apartments, especially if the landlord pays for heat and hot water, use these utilities solely at the expense of the landlord.  The additional people not only increase utility usage but also wear and tear of the apartment, again at the landlord’s expense. These people also are not parties to lease, many times do not know or care about the terms of the lease or the rules and regulations of the landlord, and have nothing to lose if they violate the terms of the lease. Since they are invited into the apartment by the tenant, the police are reluctant to issue a no trespass order. Basically, these extra people are living for free at the landlord’s expense. Some may even consider these people stealing our services.  And what about those cases where an invitee of a tenant takes over the apartment saying they are the tenant but have never signed or agreed to any terms of the lease.  People who are “crashing” at someone's apartment, can be a danger to the landlord and other tenants unless properly screened and approved.
The tenant can also cure the lease violation of an extra person living in the apartment by having the extra person permanently move from the apartment within the seven days. The tenant can only cure this lease violation once.
Landlords often get complaints from other tenants at the property about these issues.  This bill would help landlords to more quickly address the concerns of other tenants in the building & enforce the terms of the lease more efficiently.
This is our bill and we need to fully support its passage.  Although the “venue” amendment was a surprise, is against us and we need to have it removed before passing the original bill as written.
HB1204, Eviction Workout
01/26/2016 at 11:00 AM    LOB Room 208
Title: Title: relative to payment of rent pending the stay of an eviction proceeding.
Summary: Provide statutory method for allowing eviction work out agreements which became disallowed in District Courts because of the NH Supreme Court Mountain View v. Robson decision in May of 2015.
Property Owner Position: 
Email to Committee: 
Subject: HB1204 
Analysis Stated in Bill: 
Talking Points:
First thing to say is disregard the bill as originally written.  We have been negotiating with NHLA on the language for this bill & have an agreed upon amendment which rewrites the bill. So do not spend much time reviewing the original bill.  We are calling the amendment the “1/24/16 HB1204 RPOA NHLA Amendment”.   Please urge legislators to pass the bill as amended by the “1/24/16 HB1204 RPOA NHLA Amendment.”. 
Based upon RSA 540:13c, Landlords and Tenants have entered into agreements in eviction actions based upon non-payment of rent allowing tenants to remain in possession of the leased premises so long as they make payments that are written in the agreement. In many instances, the Landlord and Tenant agree to a schedule where the tenant pays rental arrearages, but is also required to pay future rent as it becomes due.
          These agreements are advantageous to both the Landlord and the Tenant. The Tenant has the opportunity to remain in their home and not be evicted. The Tenant can pay the rental arrears over a period of time that they have negotiated with the Landlord, while the Tenant does not fall further behind in rent. This is particularly helpful to a tenant who fell behind in rent due to a sickness, injury or slowdown in work, who has subsequently overcome these problems.
          The Landlord gains the opportunity to be paid the arrears, and future rent, without the need to file a new eviction action should the tenant not abide by the agreement.
          However, the Supreme Court of New Hampshire, in the case of Mountain View Park LLC v. Robson, decided August 11, 2015, ruled that agreements entered into between Landlords and Tenants in non-payment of rent cases, cannot contain provisions regarding the future payment of rent. Any agreement containing clauses requiring the Tenant to pay future rent submitted by the parties to an eviction action based upon non-payment of rent will have to be rejected by the Circuit Court. This decision takes away from both Landlords and Tenants an effective tool to resolve eviction cases to their mutual benefit. 
HB1204 as we have amended it revises the statute to specifically allow these type of agreements and spells out the procedures for the court to follow if the tenant fails to make payments as required by the agreement.
Please note that we did some research and found out that there presently is no statutory guidance or guidance in rules from Judge Kelly's office for the affidavit of non-compliance process.  This means courts could get to the process where the tenant does not make payment and have sympathy for tenant and not order the writ of possession or severely drag this out.  For instance, presently Derry court allows 10 days from landlord’s affidavit of non-compliance (tenant didn’t make payment) for tenant to respond and then it would schedule hearing.  Based on our research many courts would be like Derry which is why we need the extra detail of the later part of this bill.R[-1]C
HB1196, Higher Damage Amount In Eviction Case
01/26/2016 at 01:00 PM    LOB Room 208
Title: Title: relative to the amount of a money judgment for unpaid rent.
Summary: Increases the amount of unpaid rent a landlord can seek in an eviction action from $1,500 to $5,000.
Property Owner Position: For, If Amended.
Email to Committee: 
Subject: HB1196 
Analysis Stated in Bill: 
Talking Points:
This bill amends RSA 540:13 by allowing the landlord to ask for a judgment of up to $5,000 of unpaid rent in an eviction action. The bill does not have any limit or does current law, on the amount a tenant can claim against the landlord in a counterclaim in the eviction action. (The upper limit of the amount claimed in a counterclaim most likely will be the maximum amount allowed in civil suits in Circuit Courts).
Although the bill initially sounds like a good idea, on closer inspection it poses a very serious problem.  If a landlord were to claim damages in excess of $1,500, pursuant to RSA 502-A:14, a defendant can ask that the case be transferred to the Superior Court. If this happens, the entire action could be transferred, including the eviction case, and the delays can be substantial. 
Currently, and under the bill, if the tenant files a counterclaim, and the court determines that the amount owed to the tenant equals or exceeds the amount owned by the tenant to the landlord, the judgment in the possessory action will be awarded to the tenant.  The landlord could also be ordered to pay money to the defendant, and still have the defendant in his or her building.
A general recommendation for landlords, from attorneys specializing in landlord tenant law, is not to seek a judgment for unpaid rent in an eviction action to avoid the above.  Commonly called “don’t check the box” (on the landlord and tenant writ).  This is because if the landlord does not ask for a monetary judgment, the tenant cannot file a counterclaim.
We need to seek an amendment to the bill before we can support it. The bill has to allow the possessory action to stay in the Circuit Court and be heard as if there is no claim for unpaid rent or a counterclaim. 
Otherwise, we feel this change to the law could be somewhat of a trap to unwary landlords.
SB395, Landlord Required To Install AC Units
01/28/2016 at 09:00 AM    SH Room 100
Title: Title: relative to minimum housing standards for tenants with health or respiratory issues.
Summary: A bill to require, as a minimum housing standard, that landlords install and maintain air conditioning units for tenants with respiratory or other health related issues requiring air conditioning.
Property Owner Position: Against
Email to Committee: 
Subject: SB395 
Analysis Stated in Bill: 
Talking Points:
Short version:
This is an interesting story.  At the initial House hearing it was revealed that the bill revolves around one incidence in the town of Tilton, NH where senior citizens are in great medical need of air conditioning and the management company may be trapped by HUD regulations & fire codes from allowing charities to donate money for handling the situation.
For instance, the town and different charities and donating time, supplies and money to solve the issue but we hear that by HUD regulations money donated to the seniors puts them above an income guideline.
This is an extremely localized problem related to one property in one town in NH.
Essentially the sponsors are attempting to solve their unique Tilton one property problem by forcing the bill onto every landlord in NH.  It would be akin to killing an ant with a bazooka.
There is sympathy for the seniors in this situation so we need everyone to contact legislators to stop this bill.
More detail:
This bill would require that all residential landlords have properly working air conditioning units in apartments with tenants who have health issues requiring air conditioning.  Further, the tenant can request that the unit stay in the apartment, even during the winter and when the landlord pays heat.
First, the bill if it became law, could be overly burdensome to many of us.  We would have to buy air conditioners for everyone who claims such a health issue.  It is unclear what type of machine would suffice. Would a standard window unit work without special filters?  Do we have to install central air conditioning in each unit?  Do we have to air condition every room in an apartment?  How do we keep the tenant from stealing the air conditioners when they move out?
Second the bill is poorly drafted and not thought out.  How is it determined who needs an air conditioner?  What about the person with allergies who wants us to pay for the machine so he does not have to?  This bill is ripe for abuse.  The questions above also show the ambiguity in the bill.
What about municipal housing authorities running public housing.  Will they have to install air conditioners?  Who pays for it?


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