NH Supremes: Common Law 'Self-Help' Remedy To Boot Residential Holdover Renter By Purchaser At Foreclosure Sale No Longer Available In Granite State

From an Opinion Summary from Justia.com US Law:

• Respondent J Four Realty, LLC appealed a circuit court order that found it violated RSA 540-A:2 and :3, II (2007) by using self-help to evict petitioner Mary Evans, and awarding her actual damages of $3,000 and attorney’s fees and costs.
  
  Petitioner did not have a written lease; she resided in the apartment as a tenant at will pursuant to an informal agreement with the prior owner.
  
  Respondent purchased the property from a foreclosure sale. Petitioner continued to pay rent to the prior owner. Respondent dispatched an agent to evict petitioner. She then brought suit and won at trial.
  
  Upon review, the Supreme Court concluded that petitioner was a tenant at sufferance, and that respondent was not her landlord under New Hampshire law. However, pursuant to case law and statutory authority, even though respondent was not petitioner's landlord, respondent was not entitled to use self help to evict petitioner.(1)
  
  The case was affirmed in part, reversed in part, and remanded for further proceedings.

Source: Opinion Summary - Evans v. J Four Realty, LLC.

For the ruling, see Evans v. J Four Realty, LLC., No. 2012-198 (N.H. February 13, 2013).

(1) On this point, the New Hampshire Supreme Court gave the following explanation on the availability of the self-help remedy to recover possession of real estate by a foreclosure purchaser from a residential renter:

• The respondent argues that because it was not the petitioner's "landlord" within the meaning of RSA chapter 540-A, it was entitled to use self-help to evict her.
  
  To the contrary, a purchaser at a foreclosure sale may not use self-help to evict a tenant at sufferance. See Greelish v. Wood, 154 N.H. 521, 527 (2006); RSA 540:12 (2007) ("The owner, lessor, or purchaser at a mortgage foreclosure sale of any tenement or real estate may recover possession thereof from a lessee, occupant, mortgagor, or other person in possession, holding it without right, after notice in writing to quit the same as herein prescribed.").
  
  Our decision in Greelish is dispositive. The defendant in Greelish had a life estate in certain residential property. Greelish, 154 N.H. at 521. When the property was sold to the plaintiff at a foreclosure sale, the life estate was terminated. Id. Thereafter, although the plaintiff filed a landlord-tenant writ to establish his right to possession, he also engaged in conduct intended to force the defendant to leave. Id. at 521-22. Each party sued for damages. Id. at 522.
  
  The trial court found that the plaintiff's harassment of the defendant, whom the court found to be a tenant at sufferance, constituted "an attempted self-help constructive eviction." Id. (quotation omitted).
  
  On appeal, the plaintiff argued that he was entitled to use self-help to evict the defendant because her tenancy at sufferance, unlike the tenancy at sufferance in Hill, arose outside of the rental or leasehold context. See id. at 524.
  
  After reviewing development of the common law and the statutory process for eviction, we disagreed. Id. at 524-27. We concluded both that "the statutory summary process in RSA chapter 540 was available to the plaintiff," id. at 527; see RSA 540:12, and that "the time when the public interest required the existence of self-help for a purchaser at a foreclosure sale to recover possession from a tenant at sufferance has passed." Greelish, 154 N.H. at 527.

While the use by real property owners of the common law remedy of self-help to boot their unwanted tenants or other occupants has generally been abolished throughout the United States, it apparently hasn't been abolished everywhere. See, for example, Maryland High Court: Centuries-Old 'Self-Help' Remedy OK When Booting Holdover Homeowners Post-Foreclosure Sale, But Handle Occupants' Personal Property With Care.