New Hamhipre Eviction Completely Dismissed

31 Replies

Hi everyone,

I had my first eviction case experience and it was quickly dismissed in favor of the tenant.  My property manager did everything by the book. The tenant was on a month-to-month lease and we gave her more than 30 days notice to quit.  Then she stopped paying rent so we served her to the seven day notice to pay rent or quit. Then an eviction notice for nonpayment served by the sheriff which led to a court hearing today. I gave my property manager the power of attorney to represent me as I was away on travel and after this was done, she called me and said the judge completely dismissed the case.  She said the judge completey sided with the tenant and allowed the tenant speak her case as the tenant said all things were wrong with unit, nothing was being fixed, and her issues weren't being address which was completely not true. When it came to my property manager's turn to speak, she was cutoff and would not let her speak completely.  The case was for both the nonpayment and notice to quit but the judge didn't want to hear the notice to quit case and only wanted to deal with the nonpayment eviction.  The tenant is threatening to not pay rent until we fix more issues. She said she's call the board of health as well.  She's playing the system and I'm beyond upset. I'm unsure what to do next. Could I appeal the dismisal? Do I have to file another eviction notice?  Could I court serve the 30 day notice to quit action? Do I need to hire a lawyer? If so, any recommendations?  Has anyone been in this situation? Help!

Thanks so much, -Steve

What were the issues the tenant cited as being wrong with the unit? Did the tenant ever notify the PM of issues?  I would think there would be maintenance requests or something documenting that this was or wasn’t the first time you had heard of the issues.  I would go back to the court and ask what the next steps are. Something should be in writing but if the judge is siding with the tenant resolve the issues as soon as possible and then raise the hell out of the rent if you truly want them out.  

@J Tessier thank you for your response. All the issues submitted through maintenance requests were resolved. These issues were things like furnace not working, broken lock, mice, etc. All these were addressed and fixed and quite costly. Anything verbal we would request her to submit a maintenance request via Cozy. There’s one outstanding issue with lights flickering but we’ve contacted her many times about it but she would not return our messages. Raising rent won’t help as she’ll try to threaten me with other things to try to fix. At this point I just want her out. I think we can still have the sheriff serve the eviction for not leaving on the 30 day notice to quit. That case hasn’t been executed but I’m worried this will get dismissed as well. How in the world can you not evict someone on a month to month lease with the proper notice?

@Steve Yi Steve, sorry to hear that this situation is becoming a headache. I've dealt with something similar (also an eviction in NH, specifically Manchester). You would think that a M2M tenant failing to leave after you've provided legal notice would lead to a simple eviction, however,  you'd be surprised. Even in NH, a relatively landlord-friendly state, it is hard to evict for any reason that isn't non-payment. I tried to evict a tenant who failed to leave after I gave them notice and was met with the same pushback you received -  luckily the tenant chose to leave on their own. 

I try and avoid these situations by providing more notice than what is legally required (45+ days), offering to financially assist with moving costs, and providing resources to help the tenant find another apartment. This not only increases the odds that a tenant will decide to move out (rather than stay) but makes your eviction look a little less "menacing" in the eyes of a judge. 

@Axel Ragnarsson thank you so much for sharing your experience. It’s comforting to hear how others handle these cases even if it’s not within your favor. I can’t even get a nonpayment case in my favor as it was completely dismissed. We gave the tenant 45 days notice to vacate as well to help but obviously she didn’t care. I’m trying to do the right thing and everything seems to backfire. I can still pursue the 30 days to vacate eviction hoping at least there’s some sort of settlement to leave and not dismiss it. Maybe we just got the worst judge. I’m looking into hiring a landlord attorney. You wouldn’t happen to know any? Thanks again!!!

Sounds like you've got a budding professional tenant on your hands. She isn't one yet (she didn't move in intending to do this), but she is starting to use some of their favorite tricks. 

You'll want to get the unit inspected, make necessary repairs, and be ready to show up in court next time with pictures or video from move in day, and any damage / problems that she caused (as well as a lawyer). Judges hate when people show up unprepared, so be well prepared with pictures, receipts, etc. 

Find out from your lawyer how long you may have to wait / what else you may need to do before you can slap the next notice on the door, and follow it exactly. I wouldn't wait for the 30 day one to maybe / maybe not work. 

I'd also consider pursuing a judgement for any unpaid rent or damage. You may get paid one day, and it'll warn future creditors / landlords that the person they're dealing with is trouble.


@Axel Ragnarsson thank you! The court is in Jaffrey but landlord/tenant lawyers are a bit scarce there. I contacted a few law firms around Nashua and waiting for a return call. I’ll call CBZ though they don’t seem to practice landlord tenant disputes on their website. Well I’ll give them a call anyways. Thanks again!!!

Originally posted by @Russ B. :

Sounds like you've got a budding professional tenant on your hands. She isn't one yet (she didn't move in intending to do this), but she is starting to use some of their favorite tricks. 

You'll want to get the unit inspected, make necessary repairs, and be ready to show up in court next time with pictures or video from move in day, and any damage / problems that she caused (as well as a lawyer). Judges hate when people show up unprepared, so be well prepared with pictures, receipts, etc. 

Find out from your lawyer how long you may have to wait / what else you may need to do before you can slap the next notice on the door, and follow it exactly. I wouldn't wait for the 30 day one to maybe / maybe not work. 

I'd also consider pursuing a judgement for any unpaid rent or damage. You may get paid one day, and it'll warn future creditors / landlords that the person they're dealing with is trouble.

Hi Russ, yes, I completely agree. I don't think she's an intentional professional tenant but completely aware of the system.  I just don't want to do any more work in there than I have to since I plan on rehabbing the unit to get higher quality tenants. Though I have addressed all the issues, I'm just treating the symptoms and not the cause. The unit as a whole really needs work.  She's lived there for seven years and the previous landlords deferred so much maintenance that it's almost impossible to keep up with the patch work. I've only had the property a little less than a year.  For the most part she hasn't been a terrible tenant but it's just time to move on and now she's giving me hell for it. At this point, I just want her out whether I get my unpaid rent or not. Thanks again for your thoughts!

 

Originally posted by @Jonathan Killam :
Originally posted by @Robert Leonard:

@Steve Yi Cash for keys? Not ideal, but could get her out...

Robert Leonard

 That is exactly what I was thinking. This would probably be my next move and less costly than the legal and holding costs.

Thanks Robert and Jonathan!  I have thought about this long and hard but my gut feeling is she's going to try to milk this as long as she can. So I just don't know for this one. Going to try to get an attorney to do this right but that's not even gauranteed. Have to try.  I just want some sort of settlement of a timeline to move her out and not get it simply dismissed by the judge.

@Steve Yi

I am not an attorney, so do not take action based on my comments (seek your own legal counsel).

However, I have had several evictions over the years of owning and managing rentals in NH, and things have changed slightly over that time.

If the judge issued a judgement in the tenant's favor, there should have been some indication on it as to the reason. In NH, evictions for non-payment generally depend on whether or not the paperwork was filed correctly, and a judge only has the authority to issue something called a discretionary stay; whereby the tenant can stay for a certain period of time but must make weekly rent payments. If the tenant did not dispute that rent was not paid on time, and did not put rent in escrow pending completion of repairs, the case should not have been dismissed unless your paperwork was not in order. You say that your property manager did everything by the book. Is this because the property manager says so, or because you know for a fact that it was done correctly? Any misstep in the process, regardless of the tenant's actions, automatically results in dismissal. Based on the terminology you used, I'm concerned that your property manager is not aware of the current process. It is absolutely imperative in eviction filings that all of the i's be dotted and t's be crossed. For example, the 7 days may not include the date of service, nor the date court filing. If enough days are not provided in the notice, the case will be automatically dismissed. There are other examples as well.

Starting I believe this year, the Demand for Rent and Eviction Notice changed. The new format is required to be used. It is actually clearer language than the prior format.

I think it makes the most sense to have an attorney do the first one for you. I personally do not utilize legal counsel for eviction filings, but I am well-versed in the process and have never lost one. For the first one, it is worth the added expense to get a proper education. Better to pay an attorney for the education than to pay much more to the school of hard knocks and a professional tenant.

Unless something has changed, you have the option to file in the court jurisdiction where the property is located, OR in the jurisdiction where the landlord is located. So, theoretically, you could try again in the alternate jurisdiction (unless both are the same). However, if there is record of the first attempt, it may not please the court that you are trying a different jurisdiction in an effort to circumvent. Ask the attorney about this.

Good luck, and please post the outcome here so we can all be relieved when you get it done, and also perhaps learn something from your experience.

Again, disclaimer:

The above is not legal advice and you should seek the advice of a local attorney. The information provided is merely the opinion of a non-attorney and should not be relied upon to make any decisions.

Happy investing,

Troy

@Steve Yi know the rules, and play by the book.  What I mean is in most states like Ohio you can request the tenant to submit maintenance items in writing.  Then as the property owner you can take up to 30 days to fix issues.  Also you should hire a lawyer.  Any more maneuvering without a lawyer will just cost you more time and money in lost rent.  A lawyer will be able to advise you on next steps without going back to court.

From your explanation, it sounds like your Property Manager didn’t adequately represent your case in court.  It certainly seems like your tenant used a defense under the law that she wasn’t entitled to use, due to the situation, and your property manager just didn’t know how to effectively respond. 
It is definitely time to get an attorney involved to look at your options going forward. 

Originally posted by @Steve Yi :

Hi everyone,

I had my first eviction case experience and it was quickly dismissed in favor of the tenant.  My property manager did everything by the book. The tenant was on a month-to-month lease and we gave her more than 30 days notice to quit.  Then she stopped paying rent so we served her to the seven day notice to pay rent or quit. Then an eviction notice for nonpayment served by the sheriff which led to a court hearing today. I gave my property manager the power of attorney to represent me as I was away on travel and after this was done, she called me and said the judge completely dismissed the case.  She said the judge completey sided with the tenant and allowed the tenant speak her case as the tenant said all things were wrong with unit, nothing was being fixed, and her issues weren't being address which was completely not true. When it came to my property manager's turn to speak, she was cutoff and would not let her speak completely.  The case was for both the nonpayment and notice to quit but the judge didn't want to hear the notice to quit case and only wanted to deal with the nonpayment eviction.  The tenant is threatening to not pay rent until we fix more issues. She said she's call the board of health as well.  She's playing the system and I'm beyond upset. I'm unsure what to do next. Could I appeal the dismisal? Do I have to file another eviction notice?  Could I court serve the 30 day notice to quit action? Do I need to hire a lawyer? If so, any recommendations?  Has anyone been in this situation? Help!

Thanks so much, -Steve



 Questions:

1. How do you know the judge cut off the property manager and not let her speak completely, since you weren't there? Did the tenant tell you that (somehow I doubt it)?

2. Why didn't you utilize a lawyer in the first place? What gave you the impression the property manager was a skilled litigant when it came to eviction cases?

My gut feeling is that your property manager hasn't addressed things properly, and the judge ate her lunch. It's rare in a court of law that one side gets everything - usually the other side has to be completely in the wrong or completely incompetent for that to happen, as judges are by nature looking to make everyone unhappy by giving a little to each side and encouraging an out-of-court compromise. In this case it sounds like your property manager either had no records or came off as incompetent, a liar, or maybe both.

You will need an attorney going forward. Or fix the issues that need to be resolved and then go back to court yourself with documentation. 

If you're questioning this strongly and this deep into the process whether or not you need a lawyer, you 100% do. You'll probably arrive at this conclusion eventually and any time between then and now is just lost rent, so cut to the chase and do it immediately. At some point you should check the court transcripts to see what actually went down to help evaluate your future relationship with this PM.  Good luck,sounds like a really garbage situation, but the lawyer will help you put it in the past as soon as possible.

@Steve Yi

If your PM did everything by the book, the judge wouldn't have dismissed the case.

The tenant listed problems with the rental. Did your PM counter with evidence to the contrary? It doesn't sound like it.

My guess is there are problems with the rental, your PM failed to fix the (or you refused to), and the tenant got tired if it and quit paying.

Eviction for non-payment of rent is very easy but only if you are doing things right as a PM and Landlord. You're doing something wrong.

Don't ever go to court without an attorney.

You, as Landlord, should have been at the eviction hearing. Your PM did not handle it property and should not have been tasked with handling it alone.

Non-payment of rent is the easiest reason for eviction. Further, tenants are not allowed to use the "repair and deduct" law unless it is a life threatening situation (i.e., no heat in the middle of winter).

If this was an eviction for non-payment, why didn't the judge demand that tenant bring the overdue rents to court, to be held in escrow until the alleged problems were fixed?

You dropped the ball on what should have been an easy eviction. Forget about going  away on travel or on vacations - you need to be managing your properties. If you were unable to attend the scheduled court date, you should have had it rescheduled to a date when you were able to appear.

@Steve Yi

It’s been mentioned already but cash for keys may be the only option you have... you’re going pay the attorney or the tenant.

What’s the easiest and fastest?

Just get it in writing and tell them to “get to steppin” -Martin 🤣