COVID-19 UPDATE: State Temporarily Suspends Evictions

On March 17, 2020, in response to the ongoing COVID-19 pandemic, Governor Chris Sununu issued Emergency Order 4[1] temporarily prohibiting evictions and foreclosures in New Hampshire.  The Order has left many landlords wondering how to comply while protecting their existing lease rights.

The first thing to note is that Emergency Order 4 does not change the contractual duties under a residential or commercial lease.  Rather, it temporarily suspends the ability of a landlord to seek an eviction as a remedy for a tenant’s breach of a lease (such as nonpayment of rent).

The order applies to not only filing an eviction in the Circuit Court, but also to forwarding an already received writ of possession to the Sheriff’s Department for service on a tenant, and it may also apply to the issuance of demands for rent and eviction notices.

Landlords must be careful to conform to the Order since Paragraph 2 makes a violation a prohibited act under RSA 540-A:3, which allows, in part, for the greater of actual damages or $1,000 plus costs and attorney’s fees (and double or treble damages if violations were done knowingly).

While the order temporarily suspends evictions, it does not negate a renter’s obligations under an existing lease.  Notably, Paragraph 4 of the Order specifies that “No provision in this Order shall be construed as relieving an individual of their obligations to pay rent, make mortgage payments, or any other obligation which an individual may have under a tenancy or mortgage,” (emphasis added).  Therefore, landlords should keep up-to-date records and make sure to follow all existing provisions of a lease, especially if a tenant does not pay rent (for any reason).  Oftentimes, leases will have notice requirements or late fees that should still be adhered to.

It is unclear whether a landlord can request or require documentation that a tenant’s nonpayment was related to COVID-19, such as a doctor’s note.  However, it seems prudent for a landlord to have a tenant sign an acknowledgment attesting to the fact that the nonpayment was due to COVID-19 circumstances.

If a tenant cannot pay rent due to COVID-19, a landlord could consider working out a payment plan in writing and signed by both parties.  Any such plan should incorporate the terms of the existing lease and clarify that it does not alter or amend a tenant’s obligation to pay the full amount due and owing under the lease.  Likewise, it should specify that the landlord is not waiving any rights it was entitled to before, during, and after the state of emergency is lifted.  Emergency Order 4 does not include a specific expiration date.

Many landlords are asking what they can do to assist tenants during this challenging time.  While some landlords have opted to waive or reduce rents, not all landlords can afford to do so.  Alternatively, a landlord may consider offering information about local, state and federal housing resources to tenants.

Endnotes:
  1. Emergency Order 4: https://www.governor.nh.gov/news-media/emergency-orders/documents/emergency-order-4.pdf

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