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.