Case No. Eben Joels v. Nashua-Oxford Bay Associates Limited Partners d/b/a Bay Ridge at Nashua

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0569, Eben Joels v. Nashua-Oxford Bay
Associates Limited Partners d/b/a Bay Ridge at Nashua, the
court on June 14, 2019, issued the following order:

Having considered the brief, the memorandum of law, and the record
submitted on appeal, we conclude that oral argument is unnecessary in this
case. See Sup. Ct. R. 18(1). We affirm.

The plaintiff, Eben Joels (tenant), appeals a small claim judgment issued
by the Circuit Court (Gorman, J.) denying his claims and granting the
counterclaims of the defendant, Nashua-Oxford Bay Associates Limited Partners
d/b/a Bay Ridge at Nashua (landlord). We construe his brief to contend that the
trial court erred by not finding that the landlord: (1) constructively evicted him or
violated his right to quiet enjoyment, entitling him to damages under RSA 540-
A:4, VII(b) (2007); and (2) unlawfully withheld his security deposit, see RSA 540-
A:7, II (2007).

When reviewing a trial court’s decision rendered after a hearing on the
merits, we uphold the trial court’s factual findings and rulings unless they lack
evidentiary support or are legally erroneous. O’Malley v. Little, 170 N.H. 272,
275 (2017). We do not decide whether we would have ruled differently than the
trial court, but rather, whether a reasonable person could have reached the same
decision as the trial court based upon the same evidence. Id. Thus, we defer to
the trial court’s judgment on such issues as resolving conflicts in the testimony,
measuring the credibility of witnesses, and determining the weight to be given
evidence. Id. We review the trial court’s application of the law to the facts de
novo. Id.

We first address whether the trial court erred by finding that the landlord
did not constructively evict the tenant or violate his right to quiet enjoyment. A
constructive eviction occurs when a landlord so deprives a tenant of the
beneficial use or enjoyment of the property that the action is tantamount to
depriving the tenant of physical possession. Echo Consulting Services v. North
Conway Bank, 140 N.H. 566, 570 (1995). The covenant of quiet enjoyment
obligates a landlord to refrain from interfering with a tenant’s possession during
the tenancy. Id. at 568. Whether a landlord has breached a tenant’s right to
quiet enjoyment is a question of fact. Id. at 572.

In this case, the tenant contends that the landlord constructively evicted
him or violated his right to quiet enjoyment because the landlord did not act
promptly or effectively upon his complaint that the residents of the apartment
above him were making excessive noise. The tenant asserts that he first
complained about this noise in person on November 11, 2017. However, the
landlord’s community manager testified that she first received his complaint on
December 2, 2017, by e-mail. The tenant’s e-mail stated that the noise from
upstairs was “not new but the tempo has increased dramatically in the last 3
days.” The tenant testified that he complained about the noise from upstairs in
response to the downstairs residents’ complaints about noise from his
apartment.

The manager responded to the tenant’s e-mail complaint about the
upstairs noise within three days and apologized for not responding more
promptly. She requested more details, stating that she wanted “as much
information as possible before [she] reach[ed] out to” the upstairs residents.
However, the tenant failed to respond to the manager’s request for more
information until approximately ten days later when the manager sent a follow-
up e-mail. The manager testified that, after receiving more information from the
tenant, she spoke to the upstairs residents, told the tenant that she had done so,
and asked the tenant to contact her if there were any more issues with noise
from upstairs. The tenant argues that the landlord did not take effective steps to
address his complaint about noise from the upstairs residents. However, the
record reflects that the tenant failed to inform the manager that the problem
persisted; instead, he notified her that he was terminating the lease prior to its
expiration and contrary to its terms.

The tenant complains that the manager chose to investigate the complaints
against him by the downstairs residents, but not his complaint against the
upstairs residents. However, the manager testified that she responded regularly
to the downstairs residents “[b]ecause they were consistently complaining about
the noise” from the tenant’s apartment. Furthermore, the tenant obstructed the
manager’s investigation of the noise from his apartment by refusing to allow her
to check for loose floor boards in his apartment until she confirmed that she was
investigating his complaint about the upstairs residents. The tenant argues that,
after investigating, the manager knew that the downstairs residents’ noise
complaints were false. The manager agreed and, as a result, offered to move the
downstairs residents or the tenant to another unit. However, the tenant testified
that he had secured another apartment before receiving this offer.

The tenant argues that he was constructively evicted because the landlord
took no action to assure his safety and that of his children. Although the
tenant’s brief states that the downstairs resident came to the tenant’s door with a
“concealed [s]word,” the tenant testified that he went downstairs to confront the
downstairs resident, who “had a concealed sword.” The tenant did not testify
how he knew that the resident was armed with a sword that was “concealed,” nor
did he testify that the resident threatened him in any way. The record does not
reflect that the tenant told the manager about the sword.

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 When the manager first contacted the tenant about the downstairs
residents’ noise complaint, the tenant accused her of “systematic harassment . . .
that interferes with my right to quiet enjoyment.” The tenant further asserted
that the complaint might be racially motivated and that he had “noticed
malicious markings on [his] car which can only be attributed to malicious
neighbors,” but about which he had not previously complained. However, he
provided no details regarding such “markings,” either to the manager or to the
trial court. The police went to the tenant’s apartment once in response to a noise
complaint by the downstairs residents. The tenant argues that he did not feel
safe because “racial hate crimes are not uncommon.” However, the trial court
could have reasonably decided that the tenant’s claim that the neighbors’ actions
were racially motivated was speculative. Based upon this evidence, the trial
court could have reasonably determined that the tenant’s safety was not at risk.

The tenant states that the manager refused to investigate his claim that
the upstairs and downstairs residents were colluding to force him to leave the
building. However, the manager testified that the upstairs residents moved into
the building in 2015, approximately two years before the tenant arrived, and that
the downstairs residents moved in after the tenant. Furthermore, the downstairs
residents’ e-mails to the manager did not mention the upstairs residents.

Neither insect infestation, see Adams v. Woodlands of Nashua, 151 N.H.
640, 642 (2005), rodent infestation, or “numerous violations of the statutory
minimum housing standards that result[ ] in unhealthy and hazardous living
conditions,” Crowley v. Frazier, 147 N.H. 387, 389, 390 (2001), constitutes a
violation of a tenant’s right to quiet enjoyment, unless it causes the tenant to lose
the use of the premises. Adams, 151 N.H. at 642. In this case, the tenant did
not testify that he lost the use of any portion of the premises, but only that he
“had to leave the place for [his] own sanity.” Based upon this record, we
conclude that the trial court’s rulings that the landlord did not constructively
evict the tenant or violate his right to quiet enjoyment are supported by the
evidence and not legally erroneous. See O’Malley, 170 N.H. at 275. Accordingly,
the tenant was not entitled to damages under RSA 540-A:4, VII(b).

We next address whether the trial court erred in finding that the landlord
was entitled to retain the tenant’s security deposit. RSA 540-A:7, II authorizes a
landlord to deduct unpaid rent from a security deposit. The landlord must
provide the tenant with a written, itemized list of any claim for unpaid rent. RSA
540-A:7, II. The tenant does not challenge the trial court’s finding that at least a
portion of the lease penalties for early termination without the required notice
constituted unpaid rent within the statute’s meaning. Nor does he challenge the
amount of damages set by the trial court as being provided for by the lease.
Accordingly, we conclude that the trial court correctly approved the landlord’s
retention of the tenant’s security deposit to satisfy a portion of the amount he
owed under the lease.

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 Any remaining issues raised by the tenant in his brief either are not
sufficiently developed, see State v. Blackmer, 149 N.H. 47, 49 (2003), or
otherwise do not warrant further discussion, see Vogel v. Vogel, 137 N.H. 321,
322 (1993).

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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