On March 13, 2020, New Hampshire Governor Christopher T. Sununu declared a state of emergency as a result of the COVID-19 pandemic. Over the course of the next three years, New Hampshire lawmakers worked diligently to address a global crisis that was, in many ways, unprecedented. One piece of legislation that was largely unremarked was 2021’s passage of Senate Bill 126, or simply SB126, which was styled as “an act adopting omnibus legislation on landlord tenant proceedings.” SB126 was signed into law by Governor Sununu on July 23, 2021, and went into effect between July 23, 2021 and January 1, 2022.

As a result of the pandemic, many tenants faced pay cuts, reduced work hours, and layoffs, making it difficult, if not impossible, for them to pay their monthly rents. SB126, therefore, sought to provide additional protections for such individuals. One such protection gave tenants who were unable to pay their rent additional time to come current on back rent prior to being evicted solely for nonpayment of rent. SB126 thus repealed the version of RSA 540:9 that had been in effect for over 20 years and replaced it with new language affording tenants additional time to avoid evictions for nonpayment of rent.

From January 1, 2001, though July 23, 2021, RSA 540:9 contained what was colloquially known as the “four-strike rule,” relating to evictions for nonpayment of rent. Under that version of the statute, a tenant was able to defeat an Eviction Notice based solely on nonpayment of rent by paying to his or her landlord all back rent, plus $15 in “liquidated damages,” prior to the quit date on the Eviction Notice. In most instances, this meant tenants had just 7 days to pay all back rent after receiving an Eviction Notice. Importantly, a tenant was permitted to utilize this statute to defeat eviction for nonpayment of rent only 3 times within any 12-month period. Where tenants were able to come current within the typical 7-day timeframe, only the fourth “strike” would result in an eviction.

With many tenants out of work and facing eviction as a result of COVID-19, however, the State Legislature determined in 2021 that 7 days simply was not enough time. In passing SB126, therefore, the Legislature rewrote RSA 540:9 to provide tenants significantly more time to come current on missed rental payments. The statutory mechanism effecting this change, however, appears to have had unintended consequences.

Unlike its predecessor, the current version of RSA 540:9 does not pivot on Eviction Notices or Demands for Rent. Instead, the statute relates explicitly to “possessory actions”—which is to say, eviction actions actually filed in the District Court. At the time this article is being written, RSA 540:9 provides that a possessory action in the District Court shall be dismissed if:

(a) prior to a hearing on the merits, the tenant pays all back rent, all other lawful charges contained in the lease, $15 in liquidated damages, and all the landlord’s filing fees and service charges; and

(b) the landlord submits, prior to the hearing date, a receipt of such payment.

If the landlord does not file a receipt as required by section (b), the possessory action may still be dismissed if the tenant proves that he or she paid the charges identified in section (a).

The statute goes on to state that a tenant may defeat an eviction for nonpayment, “by use of this section,” up to 3 times within any 12-month period. However, because the “section” referenced at the end of the statue relates exclusively to “possessory actions”—and not to Eviction Notices or Demands for Rent—a tenant’s nonpayment of rent no longer counts as a strike unless a possessory action has been filed with the District Court.

To evict for nonpayment of rent, therefore, landlords could now be required to file up to 4 separate eviction actions to evict a single tenant for nonpayment of rent. And although the tenant may be responsible for paying the filing and service fees paid in connection with the first 3 possessory actions, the landlord is responsible for the additional legal fees it incurs in the course of filing 4 separate possessory actions.

As of the date this article was written, the author is unaware of any published Court opinions interpreting the modern version of RSA 540:9. It is plausible that, should the statute be challenged, a Court would determine the only practical effect of SB126 was to extend the time in which a tenant may pay back rent to avoid eviction. Under this interpretation, landlords would not necessarily be required to file cumulative lawsuits to evict a single tenant for nonpayment. Until the New Hampshire Supreme Court has ruled on this specific issue, however, landlords may wish to consult with counsel before relying upon the former four-strike rule to which they are accustomed.

This article is intended for informational purposes only and is not intended as legal advice. Landlords and Tenants seeking assistance should consult with independent legal counsel.

Should you require legal assistance, you may contact the author at (603) 778-0686 to schedule a consultation.