by Ethan DeWitt, New Hampshire Bulletin
As federal COVID-19 support programs fade away, evictions in New Hampshire are on the rise.
Data from the state’s judicial branch indicates that the average number of “landlord tenant writs” – the first official phase in an eviction process – filed per month is 520 so far in 2023, up from 2022’s average of 438.
And court-enforced evictions have also increased. 2022 saw an average 216 “writs of possession” issued per month, indicating the number of times a court approved a county sheriff to forcibly remove a tenant from a rental property. This year, that average has climbed to 253.
Low-income tenants no longer have access to the Emergency Rental Assistance Program; that initiative, which used federal COVID relief money to give rental aid to qualifying tenants, ended in October. But the New Hampshire court system launched a landlord tenant mediation program in 2021, which state officials and advocates say could help reduce unneeded evictions and avoid painful court appearances.
Last week, the judicial branch issued a video highlighting that mediation option, and laying out how evictions are carried out in the state – and what options tenants have to contest them.
Here are some things to know if you’re facing eviction:
If you receive an eviction notice, you do not need to immediately leave
Evictions are initiated by landlords, who may present a tenant with what is called an “eviction notice.” That notice is a paper document that informs the tenant the landlord is planning to seek the tenant’s eviction in court, and lists the reasons cited by the landlord.
According to state statute, the landlord can seek eviction if a tenant has failed to pay rent and back rent; has substantially damaged the property; has broken a material term of the lease; has engaged in behavior that has harmed the health and safety of the landlord or other tenants; or other good cause. Landlords can also seek eviction if they are carrying out lead abatement, if they are seeking to remove an insect infestation and the tenant has not prepared the unit, and if they are planning to take the property off the rental market.
But the eviction notice is simply a heads up: It is not a requirement that the tenant must leave (that notice can’t come until much later in the court process, and would be served by a sheriff). Eviction notices include an “expiration date” by which the landlord is requesting the tenant leave. But that date refers to how long a landlord must wait for before they can initiate the court process.
If a tenant is planning to contest the eviction, to “cure” it by paying back rent, or to negotiate a way to stay through mediation, they do not need to leave by the stated expiration date.
An eviction notice is not the final word
To many, an eviction notice can seem like a foregone conclusion. But there are a number of ways to contest an eviction, even after the notice appears on a tenant’s door.
One way is to pay back the rent in arrears. Landlords may not initiate eviction proceedings for nonpayment of rent unless they can document that they served the tenant earlier with a notice of the back rent that is due and the tenant’s failure to pay. Paying that back can head off the eviction automatically. Mediation can help reduce the back rent, and if the matter goes to a court, the court can also issue an order that reduces back rent while allowing the tenant to stay.
There are also a number of defenses a tenant can use. An eviction can be blocked if the landlord refused payment from the tenant, or didn’t give timely information on the rent.
In eviction cases that don’t involve the nonpayment of rent, a tenant can contest the eviction if they can prove it was issued in retaliation for reporting the landlord for violation under RSA 540-A. That statute lists a number of requirements for landlords, including that they respond to emergency remediation requests, that they give notice before towing a tenant’s car that is blocking a driveway, and that they only ask for security deposits that are equivalent or below one month’s rent.
A landlord is also not allowed to discriminate against a tenant who is a victim of domestic abuse; if the eviction can be shown to be based solely on that reason, it can be overturned.
If any of the reasons stated for an eviction notice are not accurate, tenants can contest the eviction, either in court or through mediation.
Consider involving a mediator
One free option to try to alleviate or avoid eviction is a mediator. Since 2021, the judicial branch has offered a statewide mediation program between landlords and tenants that builds off a pilot program during the COVID-19 pandemic.
The mediation takes place over phone or video call, and doesn’t require an in-person visit. It allows both parties to access a trained and neutral mediator, who will try to help the parties come to an agreement that could avoid a court appearance entirely.
But tenants considering mediation should request it without delay, and ideally before the expiration date on the tenant’s eviction notice. That’s because most district courts in the state do not provide mediation services once the court process is set in motion. But the landlord cannot initiate the court process until the expiration date arrives, which can vary between seven days after serving the notice – in non-payment of rent evictions – to 30 days in other evictions.
Mediation does not automatically prevent court action, but it provides a chance to find a better path for court action.
Move quickly to file your defense
After the landlord issues the eviction notice and the expiration date passes, the landlord can then start the formal court proceedings. This is known as a “landlord tenant writ.” In order to serve it to a tenant, the landlord must arrange for a county sheriff to serve the tenant with the writ.
Once the writ has been obtained and served, the matter is heading to district court. But the tenant still has options. If they would like to mount a defense, they will need to file an application for an “appearance,” which indicates to the court that they will be contesting the eviction.
That application must be made quickly – within seven days of the sheriff serving the tenant the landlord-tenant writ. If a tenant fails to file the application in time, or does not appear in court at the hearing, the court will issue a notice of default, which indicates that the tenant is not contesting the eviction and which could lead to a writ of possession. But even at that stage, tenants have options: A tenant can contest a notice of default if they can explain to a judge why they were unable to file the “appearance” document or appear in court.
When the matter heads to court, a tenant can represent themselves. But they can also seek out legal assistance from a number of organizations. Those organizations, including 603 Legal Aid and New Hampshire Legal Assistance, are listed by the judicial branch at https://www.courts.nh.gov/self-help/getting-started/legal-assistance.
Contesting an eviction can make a difference. Depending on the circumstances, a judge might throw out the eviction entirely, issue a “discretionary stay” allowing the writ of possession to be held off for up to 90 days to allow the tenant to find other housing, or even adjudicate a “pay to stay” agreement that allows the tenant to pay off the back rent, or a reduced amount of back rent using a payment plan.
This story was written by Ethan DeWitt, a reporter at the New Hampshire Bulletin, where this story first appeared.
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