Month: May 2020

Timber Trespass: What Happens When the Neighbor Cuts Down Your Trees

Disputes with neighbors are, unfortunately, a not-uncommon occurrence. They can be unpleasant, stressful, and sometimes escalate into a lawsuit.

Timber Trespass: What Happens When the Neighbor Cuts Down Your Trees

One category of neighbor dispute involves trees. Many folks take the trees on their property for granted — they exist and serve a purpose, but we don’t think too much about them. However, if a tree is suddenly destroyed, a property owner may quickly come to miss the tree’s benefits. Trees can provide shade, beauty, and privacy. They can also be used for other purposes such as lumber or firewood. Depending on the type of tree and its use, trees are often more valuable than one might expect. Additionally, there may be insurance coverage available from which to recover damages.

The cutting-down or destruction of trees on someone else’s property is termed “timber trespass.” Timber trespass can be either intentional or accidental.

  1. RSA 227-J:8 — The Timber Trespass Statute

New Hampshire has a long history of protecting and valuing trees. As such, it has enacted a statute providing for certain penalties for timber trespass. The statute, found at RSA 227-J:8, reads as follows:

No person shall negligently cut, fell, destroy, injure, or carry away any tree, timber, log, wood, pole, underwood, or bark which is on the land of another person, or aid in such actions without the permission of that person or the person’s agent.

In addition to any other civil or criminal penalty allowed by law, any person who violates the provisions in paragraph I shall forfeit to the person injured no less than 3 and not more than 10 times the market value of every such tree, timber, log, lumber, wood, pole, underwood, or bark cut, felled, destroyed, injured, or carried away.

The second paragraph of the statute provides significant monetary penalties for timber trespass – between 3 and 10 times the “market value” of the tree cut or destroyed. The amount of the statutory multiplier is determined by the factfinder. The statute, on its face, provides no guidance about how the jury is to select a suitable multiplier; generally speaking, however, the more egregious the wrongful conduct (i.e., willful as opposed to merely negligent), the higher the appropriate multiplier. See Hynes v. Whitehouse, 120 N.H. 417 (1980).

2. Compensatory damages for tree cutting

Stumpage value, however, does not always represent the full value of a tree. In a residential setting, a tree’s value more likely derives from providing shade, privacy, or beauty. In those situations, the tree owner may recover compensatory damages in addition to the statutory stumpage value. Woodburn v. Chapman, 117 N.H. 906 (1977). Compensatory damages may be calculated by using the replacement cost of a tree. Id.

These damages can often be very substantial, even for relatively few felled trees. To properly determine replacement cost, an arborist or other tree expert can be consulted. The arborist will calculate the cut tree’s size by measuring its stump diameter – the ultimate value will also depend on the species of tree and its healthiness. A real estate expert may also be able to establish damages by assessing a property’s value with and without the tree in question.  

3. Insurance coverage for timber trespass cases

Accidental tree cutting is not unusual between neighbors. The perpetrator may simply have adjudged the property line incorrectly or instructed a tree removal company erroneously.

If your trees were cut due to someone else’s mistake or accident – including negligent conduct – you may be entitled to compensation from the perpetrator’s homeowner’s insurance policy. Homeowner’s insurance generally provides coverage for “occurrences.” An “occurrence” is typically defined as an “accident resulting in bodily injury or property damage.”

The act of cutting trees on someone else’s property is considered a “trespass.” Under the law, a “trespass” is an intentional tort. Ronayne v. State, 137 N.H. 281, 285 (1993). Because the act itself of “trespass” is “intentional” courts in some states have determined that timber trespass does not constitute an “accident,” even if the damage to the trees was ultimately not intentional. See Albert v. Mid-Century Ins. Co., 236 Cal. App. 4th 1281 (2015).

New Hampshire, however, follows the vast majority of states in recognizing that “an insured’s intentional acts may be considered accidental if the insured did not intend to inflict injury.” A.B.C. Builders v. Am. Mut. Ins. Co., 139 N.H. 745 (1995). For example, in the context of timber trespass, a neighbor may be clearing their lot of trees and accidentally cut down a tree over the property line. Although this is technically an “intentional” act pursuant to tort law, New Hampshire courts have recognized that “intentional but mistaken [timber] trespass” can still constitute an “occurrence” under homeowner’s insurance policies. Lumber Ins. Cos. v. Allen, 820 F. Supp. 33, 35 (D.N.H. 1993).

In sum, if you are a property owner and you believe someone has cut down your trees, you should contact an attorney. You may be entitled to receive compensation, and you may even be able to get that payment from the perpetrator’s homeowner’s insurance. The existence of insurance creates the possibility of a fair settlement without even having to file a lawsuit.

If you have questions about timber trespass, we would be happy to speak with you. You can call us today at (603) 883-0797, or use our contact page. Welts, White & Fontaine is Nashua’s biggest law firm and serves the legal needs of both individuals and businesses in towns such as Amherst, Milford, Hudson, Brookline, Windham, Hollis, Merrimack, Litchfield, Bedford, Londonderry, Pelham, and of course Nashua.

Author: Israel F. Piedra

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.

Evictions During Covid-19 Restrictions

Evictions During Covid-19 Restrictions

By Executive Order on May 15, 2020, Governor Sununu extended through June 5, 2020 the prohibition of residential and commercial evictions first announced in his Emergency Order #4. Pursuant to Executive Order 2020-04, the following exceptions are currently the only permissible grounds for eviction:

1.a.   Eviction Proceedings initiated against an individual for violations of a lease or violations of law which result in either (i) substantial damage to the premises by the individual or members of the individual’s household or (ii) a substantial adverse impact on the health or safety of the other persons residing on the premises.

1.b.   Eviction proceedings initiated against an individual in cases of the individual’s abandonment of their rental unit or space.

The Governor also made it clear that:

4.  All tenants are hereby advised that, consistent with Section 4 of Order #4, nothing in this Order or Order #4 relieves a tenant of an obligation to pay rent or comply with any other provision of their lease agreements.  Tenants are strongly encouraged to work with their landlords to pay all rent that they can afford, and to utilize the expanded unemployment benefits provided by the State and Federal Government, where applicable, for this purpose.

This Order was supplemented by the New Hampshire Attorney General’s “Guidance” stating:

It is important for tenants to understand that the Order does not entitle anyone to free rent during the State of Emergency.  All rent that is unable to be paid during the State of Emergency must be paid in full once the State of Emergency  is lifted.  The Order allows tenants who have experienced a loss of income or who cannot afford to pay rent during the State of Emergency to delay payment until the State of Emergency is lifted without being evicted.  Tenants who have not experienced a loss of income and can afford to pay rent are required to do so during the State of Emergency.

            Governor Sununu’s March 17, 2020 Emergency Order #4 provides penalties for landlords violating his Orders that include authority to the Attorney General to enforce his Orders through any methods provided by current law and also designated any violation of his Orders by a residential landlord to be a violation of RSA 540-A:3, which penalties can include fines, damages, costs, and reasonable attorney’s fees.

            Considering the extraordinary reasons for these Orders and the stated penalties, every landlord should be very careful to comply.  Through subsequent Emergency and Executive Orders issued, these prohibitions currently extend through June 5, 2020.  But Governor Sununu’s Executive Orders have been issued in 21-day increments and there has been no indication that the May 15, 2020 Order was his final one.  So, eviction prohibitions in New Hampshire could be extended even further.

            In addition to, and in many respects exceeding Governor Sununu’s Orders, the federal government has also issued prohibitions on residential evictions.  The CARES Act, signed into law on March 27, 2020, also prohibits evictions from certain residential property for non-payment of rent or the charging of fees, penalties, or other charges that are related to the non-payment of rent for 120 days beginning March 27, 2020 and also requires a 30-day notice of eviction at the end of the 120 days.

Section 4024 of the CARES Act defines these prohibitions and what properties to which they apply, and I have included it below or reference.  The properties covered by the Act are defined by whether or not an individual property participates in certain federal programs or has a federally backed mortgage loan.  As can be seen by referenced to Section 4024, it is not easy to decipher.

If you are facing the possibility of evicting a commercial or residential tenant, we are willing to discuss the particular circumstances involved in your situation, any prohibitions that  might apply, and develop a plan for moving forward.

SEC. 4024. TEMPORARY MORATORIUM ON EVICTION FILINGS.

(a) DEFINITIONS. In this section:

 (1) COVERED DWELLING.—The term “covered dwelling” means a dwelling that (A) is occupied by a  tenant (i) pursuant to a residential lease; or (ii) without a lease or with a lease terminable under State law; and (B) is on or in a covered property.

(2) COVERED PROPERTY.—The term “covered property” means any property that (A) participates in (i) a covered housing program (as defined in section 41411(a) of the Violence Against Women Act of 1994(34 U.S.C. 12491(a))); or (ii) the rural housing voucher program launder section 542 of the Housing Act of 1949 (42 U.S.C. 1490; or (B) has a (i) Federally backed mortgage loan; or (ii) Federally backed multifamily mortgage loan.

(3) DWELLING.—The term “dwelling” (A) has the meaning given the term in section 802 of the Fair Housing Act (42 U.S.C. 3602); and (B) includes houses and dwellings described in section 803(b) of such Act (42 U.S.C. 3603(b)).

(4) FEDERALLY BACKED MORTGAGE LOAN. The term “Federally backed mortgage loan” includes any loan (other than temporary financing such as a construction loan) that (A) is secured by a first or subordinate lien on residential real property (including individual units of condominiums and cooperatives) designed principally for the occupancy of from 1 to 4 families, including any such secured loan, the proceeds of which are used to prepay or pay off an existing loan secured by the same property; and (B) is made in whole or in part, or insured, guaranteed, supplemented, or assisted in anyway, by any officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.

(5) FEDERALLY BACKED MULTIFAMILY MORTGAGE LOAN. The term “Federally backed multifamily mortgage loan” includes any loan (other than temporary financing such as a construction loan)  that (A) is secured by a first or subordinate lien on residential multifamily real property designed principally for the occupancy of 5 or more families, including any such secured loan,  the proceeds of which are used to prepay or pay off an existing loan secured by the same property; and (B) is made in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by any officer or  agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.

(b) MORATORIUM. During the 120-day period beginning on the date of enactment of this Act, the lessor of a covered dwelling may not (1) make, or cause to be made, any filing with the court of jurisdiction to initiate a legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges; or (2) charge fees, penalties, or other charges to the tenant related to such nonpayment of rent.

(c) NOTICE. The lessor of a covered dwelling unit (1) may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; and (2) may not issue a notice to vacate under paragraph (1) until after the expiration of the period described in subsection (b).

At Welts, White & Fontaine, P.C., we represent landlords in both residential and business/commercial evictions.  Simply contact us or call us at (603) 883-0797, and we will tell you how we can help you.

Author: George H. Thompson Jr.

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.

Paid Sick Leave provisions of recent Congressional Acts

New Hampshire dentist has concerns about the Paid Sick Leave provisions of recent Congressional Acts after her practice reopens.

The Department of Labor (DOL) recently issued regulations interpreting the newly enacted expanded Family and Medical Leave Act (FMLA) and paid sick leave provisions of the Families First Coronavirus Response Act.  These rules became effective April 1 and continue through December 31 when the law expires. These provisions may be costly to a practice after it reopens. 

Do the Rules Apply to Your Business?

The new rules apply to businesses with fewer than 500 employees, so many New Hampshire businesses will be affected. However, the law is inapplicable to employees who have been laid off or furloughed who have not yet returned to work. Thus, while these provisions were not applicable while a business was closed due to COVID-19, they will apply once that business reopens.

Qualifying Reasons for Leave

Under the law, up to 80 hours paid sick leave (based on an employees regular pay rate) must be paid to eligible employees (those who have worked for your business at least 30 calendar days), who meet any of the following tests:

  1. The employee is under a federal, state, or local quarantine, or isolation order because of COVID-19. Originally, many interpreted this to mean that the individual employee must be under a specific, rather than general, quarantine or isolation order. However, the DOL rules state that the employee will qualify if they are included under a shelter-in-place or stay-at-home order issued by the government. Since many states have these orders in effect, this means that any employee working in those states is entitled to paid leave provided that he or she is otherwise eligible and cannot perform the job remotely.
  2. The employee is advised by a healthcare provider to self-quarantine because of COVID-19.
  3. The employee has symptoms of COVID-19 and is seeking a medical diagnosis.
  4. The employee is caring for an individual who meets one of the first 2 conditions above.
  5. Up to 12 weeks paid leave (expanded FMLA leave) is available if the employee is caring for a son or daughter whose school or “place of care” is closed due to COVID-19, or whose care provider is unavailable for the same reason.

Full-time employees (those working 40 hours a week) receive up to 80 hours of paid sick leave. Other (part-time) employees are entitled to pro rata number of hours of sick leave, based on their average number of hours worked over 2 work weeks. For example, a 2 day a week staffer would be eligible for up to 32 hours of paid sick leave (16 hours/40 X 80).

The amount of paid sick leave is capped at $511 a day, or $5,110 total, if claimed due to reasons 1, 2, or 3 above, or $200 a day, or $2,000 in the aggregate, if claimed due to reasons 4 or 5 above.

As noted above, employees who were terminated, laid off, or furloughed are not eligible for paid leave, unless and until they are rehired. However, the cost of the paid leave, including maintaining health insurance, can be fully offset through payroll tax credits as explained below.

Claim the Tax Credit

The new law provides the full amount of sick leave pay, as well as all business contributions for employee health insurance, will be reimbursed within 3 months in the form of a payroll tax credit to your business. Once your business begins paying qualified sick leave pay, you should alert your payroll provider and CPA immediately.

You claim the tax credits on federal payroll tax returns (Form 941); however, you can accelerate the financial benefit by reducing your federal payroll tax deposits. Furthermore, if your credits exceed your regular tax deposits, you can file Form 7200, Advance Payment of Employer Credits, with the IRS to have the credits refunded to you.

You will need to retain documentation showing how the paid leave and qualified health plan expenses are calculated, as well as your related payroll records, along with Form 941 and Form 7200 that were submitted to the IRS. These records must be retained for at least 4 years.

Claim the Small Practice Exemption from Expanded FMLA Leave

Under the law, the DOL has the authority to exempt small businesses with fewer than 50 employees from the expanded FMLA leave (the requirement to offer 12 weeks of paid leave to care for children under 18 whose schools are closed or whose child care provider is unavailable (reason number 5 above)), if it would jeopardize the viability of the business going forward. The regulations provide that your business is exempt if an authorized officer of the business, such as the President of your corporation or managing member of your LLC, determines that: 1) the leave would cause the businesses’ expenses and financial obligations to exceed available business revenues and cause the small business to cease operating at a minimal capacity; or 2) the absence of the employee requesting leave would put the company’s operational or financial health at risk because of the employee’s specialized skills, knowledge of the business, or responsibilities; or 3) there are not enough employees with the requisite skills who are available to perform the work the employee performs and that employee’s “labor or services are needed for the small business to operate at a minimal capacity.”

In order to be exempt, you must sign the determination and retain it, but you are not required to file it with the DOL.  There is no particular guidance on the exact form of the determination but it should be in writing and provide sufficient grounds to justify the exemption under one of the aforementioned three options.

If you would like to speak with one of our attorneys regarding business or employment law issues caused by the novel coronavirus pandemic, contact us by clicking here or by calling (603) 883-0797.

Author: John S. Polgrean.

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.

Attorney Israel Piedra Moderates Statewide Diversity Panel Discussion

Last week, Attorney Israel Piedra served as the moderator for a panel discussion during Stay Work Play’s 2nd annual event “NH Next: A Summit for Young Changemakers.” The discussion, which took place online due to the ongoing coronavirus pandemic, was entitled “Diversity Matters.” The panel was composed of young leaders of color in New Hampshire, and discussed the experiences and challenges faced by people of color in the state.

The full panel discussion is available on YouTube and is embedded below.

Stay Work Play is a New Hampshire nonprofit, founded in 2009, dedicated to encouraging young New Hampshirites (and potential NH residents) in their 20s and 30s to stay, work, and play in the state. The organization seeks to remedy the oft-identified problem of NH natives leaving the state in their adult years rather than put down roots. It highlights New Hampshire’s many benefits, job opportunities, and attractions, and also advocates for important policy issues important to young persons, such as housing affordability, childcare, and education debt. Stay Work Play has previously highlighted Attorney Piedra’s work as a NH state representative.

Israel-F-Piedra-190v2-150x150

Attorney Piedra is a New Hampshire native and son of a South American immigrant. He joined Welts, White & Fontaine, PC in 2015 and focuses his practice on civil litigation matters, including personal injury and appeals. He can be contacted at ipiedra@lawyersnh.com.

Welts, White & Fontaine, PC is Nashua’s largest law firm and has attorneys practicing in all major areas of law. For a consultation, please contact us by clicking here or by calling (603) 883-0797.

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