ARAA West Side Holdings, LLC v. Audrey Rackliff & a. ( 2023 )


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  •                     THE STATE OF NEW HAMPSHIRE
    SUPREME COURT
    In Case No. 2022-0369, ARAA West Side Holdings, LLC v.
    Audrey Rackliff & a., the court on April 7, 2023, issued the
    following order:
    The court has reviewed the written arguments and the record submitted on
    appeal, and has determined to resolve the case by way of this order. See Sup. Ct.
    R. 20(2). The defendants, Audrey and Everett Rackliff (tenants), appeal an order
    recommended by a referee (Kent, R.) and approved by the Circuit Court (Lyons,
    J.), entering judgment in favor of the plaintiff, ARAA West Side Holdings, LLC
    (landlord), in this possessory action for reasons other than non-payment of rent
    and determining that the tenants had failed to establish that their eviction was
    retaliatory. The tenants argue, among other things, that the trial court erred by
    rejecting their retaliation defense. We vacate and remand.
    We will uphold the trial court’s factual findings unless they are
    unsupported by the evidence or erroneous as a matter of law. Town of Atkinson
    v. Malborn Realty Trust, 
    164 N.H. 62
    , 66 (2012). We review questions of law de
    novo. Miller v. Slania Enters., 
    150 N.H. 655
    , 659 (2004).
    Under RSA 540:13-a, III (2021), a tenant who is less than one week in
    arrears may defeat an eviction action by proving that the eviction action was
    brought in retaliation for the tenant meeting with other tenants for a lawful
    purpose. “In certain circumstances, the tenant is entitled to a rebuttable
    presumption of retaliation under RSA 540:13-b [(2021)].” White Cliffs of Dover v.
    Bulman, 
    151 N.H. 251
    , 254 (2004). RSA 540:13-b provides, in pertinent part:
    Unless the court finds that the act of the tenant . . . in organizing
    relative to alleged violations by a landlord was primarily intended to
    prevent any eviction, a rebuttable presumption that such possessory
    action was in retaliation of the tenant’s action shall be created when
    any possessory action, increase in rent or any substantial alteration
    in the terms of the tenancy is instituted by a landlord within 6
    months after:
    ....
    IV. The discovery by the landlord of activity protected by RSA
    540:13-a, III.
    RSA 540:13-b, IV (2021).
    In this case, the possessory action was filed on May 4, 2022. Therefore, for
    the rebuttable presumption to apply, the landlord must have discovered the
    tenants’ alleged protected activity (here, attendance at a tenant meeting) within
    six months of May 4, 2022. See Bulman, 
    151 N.H. at 254
    . Six months before
    May 4, 2022 was November 4, 2021. Thus, the tenants were entitled to a
    rebuttable presumption upon proof that between November 4, 2021, and May 4,
    2022, the landlord discovered their attendance at the tenant meeting.
    The trial court ruled that the tenants failed to establish their retaliation
    defense because the tenant meeting they attended occurred after “this Notice was
    given.” To the extent that the trial court intended the phrase “this Notice” to refer
    to the notice to quit, the court erred as a matter of law. We have held that for the
    purposes of the rebuttable presumption, service of a notice to quit “does not meet
    the statutory requirement of instituting a possessory action.” Bulman, 
    151 N.H. at 254-55
    ; see Hynes v. Hale, 
    146 N.H. 533
    , 539 (2001) (“Although the notice to
    quit may be a requisite step in the eviction process, it is not itself an eviction
    action.”). Accordingly, to the extent that the trial court focused upon whether the
    alleged protected activity (here, the tenant meeting) occurred before or after the
    notice to quit was served, the trial court erred as a matter of law.
    To the extent that the trial court intended the phrase “this Notice” to refer
    to the filing of the landlord/tenant writ, the trial court erred as a matter of fact
    when it determined that the protected activity occurred after the filing of the writ.
    The evidence at trial was that the tenants attended two tenant meetings, one on
    March 19 and the other on April 23. Both of these meetings occurred within six
    months of the writ’s filing on May 4.
    We are unable to determine as a matter of law, based upon the record
    before us, whether the rebuttable presumption applied and, if so, whether the
    landlord sufficiently rebutted it. Nor are we able to determine, as a matter of law,
    based upon the record before us, whether, even if the rebuttable presumption did
    not apply, the tenants established their retaliation defense. Under these
    circumstances, we vacate the trial court’s determination that the tenants failed to
    establish their retaliation defense and remand for further proceedings consistent
    with this order.
    Vacated and remanded.
    MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
    concurred.
    Timothy A. Gudas,
    Clerk
    2
    

Document Info

Docket Number: 2022-0369

Filed Date: 4/7/2023

Precedential Status: Non-Precedential

Modified Date: 11/12/2024