Saturday, April 30, 2016

Legislative Update, 2016 #17== Update on Major bills. Final decision time is approaching


Howdee everyone,

Important Updates:
Tuesday 4/26 was “the big day”.  Both HB1204 Eviction Workout & HB1370 7 Days Eviction Notice were heard.  See below.
There is still time to contact the Senate Judiciary committee.  If you haven’t yet contacted them please do so now. It is critically important that they hear from us now.
Simply discuss the reasons to remove Section 3 and the reasons to keep the bill as originally written.  Even if you don’t include talking points but just call or email how you want them to vote it will be helpful.
Update HB1204, Eviction Workout
This bill is doing very well.  As you most likely know, we had the extreme pleasure of presenting that both sides co-authored the bill and are obviously in agreement.  Testimony from both sides was heard.  The NH Court system testified that they wanted a change to clarify the end date of the work out agreements so the court could clearly know when to dismiss the eviction workout cases (which could take a long time for the tenant to get caught up).
We again worked speedily and efficiently on all sides including the NH Court system and authored a small amendment that accomplishes what the court needs and yet does not take away from any of the original intent of the bill.
It is expected that the small amendment will be incorporated and easily pass.
Update HB1370, 7 Days Eviction Notice
This was of course the big hearing of the day.  Senate Judiciary was advised of how much testimony there would be, and to schedule a large amount of hearing time.  In the end, perhaps because of the enourmous volume of bills on the agenda, they only scheduled 20 minutes. The Senate Judiciary Committee was very gracious in allowing people to speak but in the interest of time to not repeat anything already heard.  In the end we must have spent over an hour and a half.
A large number of landlords showed up and signed in “For the bill but to remove/oppose section 3”.  It was an excellent showing.  Thank you everyone!
There was an excellent team of attorneys speaking for the landlord side.
Tenant advocates also showed up of course and testified for their position (diametrically opposed to ours).
The Senators are in a difficult place because both sides are so far apart on this one and it is not as easy as we feel it should be for them to decide.  Therefore, it is still a good idea to contact the Senate Judiciary and ask them to vote for the original bill as written but remove Section 3.
HB1656, Real Estate Transfer Tax Exception
No new news.  Stay tuned.
Action items this week:
HB1370, 7 Days Eviction Notice
Continue to contact the Senators on the Senate Judiciary committee (phone call is best), ask them to remove section 3 relating to venue and urge them to keep the remaining bill as originally written. 
Senate Judiciary Committee:
Sharon Carson (Chairman)(603) 271-1403
Sam Cataldo (Vice Chairman) (603) 271-4063
Bette Lasky (603) 271-3091
David Pierce (603) 271-3067
Gary Daniels (603) 271-3042
…….
HB1204, Eviction Workout
Continue to contact the Senators on the Senate Judiciary committee, ask them to pass the bill.
…….
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
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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.
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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     
Title: relative to exceptions to the real estate transfer tax.
Property Owner Position: For
House Status: PASSED/ADOPTED
Senate Status: 
HB636     
Title: relative to forfeiture of property.
Property Owner Position: For
House Status: PASSED/ADOPTED WITH AMENDMENT
Senate Status: IN COMMITTEE
HB1204     
Title: relative to payment of rent pending the stay of an eviction proceeding.
Property Owner Position: For
House Status: PASSED/ADOPTED WITH AMENDMENT
Senate Status: IN COMMITTEE
HB1370     
Title: relative to termination of tenancy.
Property Owner Position: For, If Section 3 relating to venue is removed.
House Status: PASSED/ADOPTED WITH AMENDMENT
Senate Status: IN COMMITTEE
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Full details on all bills above:
HB1656, Real Estate Transfer Tax Exception
03/22/2016 at 10:00 AM    SH Room 103
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.
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HB636, Forfeiture Of Property
04/07/2016 at 12:30 PM    SH Room 100
Title: Title: relative to forfeiture of property.
Summary: This bill would revise the New Hampshire forfeiture laws – the laws that allows the state to take property that is contraband, property obtained due to a commission of a crime, and instrumentalities a person used in the commission of the crime.
Property Owner Position: For
Email to Committee: 
Subject: HB636 
Analysis Stated in Bill: 
Talking Points:
The state will have the right to seize property that it believes was used in the commission of a crime.
Prosecutors only have to prove by a preponderance of the evidence that the property is related to the crime, therefore subject to forfeiture.
Law enforcement has a profit motive to pursue forfeitures.
Once property is taken, the burden lies on the innocent owner to defend against the forfeiture.
The bill gives an innocent owner a defense.  Therefore, we support the bill.
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HB1204, Eviction Workout
04/26/2016 at 08:00 AM    SH Room 100
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: For
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
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HB1370, 7 Days Eviction Notice
04/26/2016 at 08:40 AM    SH Room 100
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 Section 3 relating to venue is 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 "Section 3 relating to venue".
First we will address this "Section 3 relating to venue" which takes 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 strongly opposed to this Section 3 and recommending that Section 3 relating to venue be taken off the 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 or at the venue where the tenant resides) or at the venue where the tenant resides), 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)?
Additionally,
This Section 3 relating to 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 plain language explanation of the above provision is already 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 
Remember we are talking about only the initial piece of a lengthy eviction process. The eviction notice of 30 or 7 days is only the first step after that is serving the LT-Writ, then the court hearing, then the notice of decision, then getting the Writ of Possession then executing the Writ of Possession often called the lock out.
In current law the entire eviction process that starts with a 7 day notice still take about 6-8 weeks from start to lock out.  A 30 notice results in about 9-11 weeks.
So bear in mind that we are talking not so much about 30 day to 7 day but rather 9-11 weeks down to 6-8 weeks.
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.
There are several ways that tenant’s utilities end up in the landlord’s name:
1. The tenant does not put utilities into his or her name
2. The tenant terminates utilities
3. The tenant has utilities shut off on them because they didn’t pay the bill and the utilities are transferred into the landlord’s name,
4. The time from application to move in extremely short, even only one day, which is not enough time for the landlord to shut off utilities.
5.  The landlord automatically has utilities put in the landlord’s name in between tenancies.  This is both to make routine business easier and just to be kind since on quick application to move in time frames the tenant will have utilities on to start with and it is in many cases less expensive for the tenant to transfer utilities to their name rather then initiate a new account after a shut off.
6. Multiple tenants are at the apartment but only one tenant has the utilities in their name who later moves out resulting in a shut off or automatic transfer to the landlord.
7. The Landlord puts the utilities in the landlord’s name to prevent the property from freezing.
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.  The “venue” amendment now "Section 3 relating to venue" was a surprise, is against us and we need to have it removed before passing the original bill as written.
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