Wallace Farm, LLC v. Mark Sacco

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0556, Wallace Farm, LLC v. Mark Sacco,
the court on July 13, 2021, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
The defendant, Mark Sacco (tenant), appeals a decision of the Circuit Court
(Steckowych, J.) granting possession to the plaintiff, Wallace Farm, LLC
(landlord), of residential property for good cause based upon the tenant’s
failure, following written notice, to remove a satellite dish installed in violation
of the parties’ lease. See RSA 540:2, II(e), III (Supp. 2020). On appeal, the
tenant argues that the trial court erred by not dismissing the case based upon
the federal “Over-the-Air Reception Devices” (OTARD) rule, see 47 C.F.R. §
1.4000(a) (2019). We affirm.

The OTARD rule provides, in relevant part:

Any restriction, including but not limited to . . . any private
covenant, contract provision, [or] lease provision, . . . on property
within the exclusive use or control of the antenna user where the
user has a direct or indirect ownership or leasehold interest in the
property that impairs the installation, maintenance, or use of:
(i) An antenna that is:
(A) Used to receive direct broadcast satellite service,
including direct-to-home satellite service, or to receive or transmit
fixed wireless signals via satellite, and
(B) One meter or less in diameter . . .
. . . is prohibited to the extent it so impairs . . . .

47 C.F.R. § 1.4000(a)(1).

Evidence in the record, including photographs introduced at trial,
establishes that the tenant leases a residential apartment in a large, multi-unit
apartment building containing apartments on three stories with balconies on
the upper-story units and patios on the first-story units. The landscaping on
the side of the building where the tenant’s first floor apartment is located
includes a large grass lawn with some shrubbery immediately adjacent to the
building. Several feet from the side of the tenant’s apartment, on the grass
lawn, is a satellite television dish affixed to a pole that is several feet in height
and secured to the ground. Cable runs from the satellite dish and enters the
apartment building through holes drilled into its exterior wall.
 The lease defines the premises as “[a] 2 bedroom apartment located at: 9
BRIDLE PATH #104 Londonderry, NH 03053.” It obligates the landlord to
“maintain the apartment building, the common grounds, the apartment and
[its] equipment . . . in good condition in compliance with . . . all applicable
laws, rules and regulations of the State, its agencies and any applicable
municipal codes.” It obligates the tenant not to “embellish and/or change, nor
make any additions or alterations to the apartment,” or to “install . . . antennas
or other like . . . equipment” without the landlord’s written permission. It also
requires the tenant to keep “[s]idewalks, passages, public halls, stairwells, fire
escapes, etc.” free from obstructions, and prohibits their use “for any purpose
other than ingress and egress to the premises.” The lease prohibits the tenant
from using “[b]alconies and patios . . . as storage areas,” and requires the
tenant to keep “[c]ommon areas including stairwells, landings, balconies and
grounds . . . free of any personal belongings.” The lease specifically provides
that “[s]atellite [d]ishes are NOT permitted.”

On April 29, 2020, the landlord provided written notice to the tenant
advising that on the previous day, the landlord had observed a satellite dish
installed “on the ground outside [of his] apartment,” that the satellite dish
violated the lease, and that he was required to remove and dispose of it and
repair all exterior or interior drilled holes no later than May 8, 2020. If the
tenant failed to comply, the landlord warned that it would commence an
eviction. The tenant did not comply with the notice.

On May 8, 2020, the landlord wrote a second letter to the tenant
demanding that he “immediately” remove the satellite dish, and warning that if
he failed to do so, it would commence legal proceedings. The tenant failed to
respond to the May 8 letter, or otherwise to comply with its demand.

On June 23, 2020, the landlord wrote a third letter to the tenant advising
that he had failed to remove the satellite dish and restore the building to its
original condition, that maintaining the satellite dish violates the lease, and
that if he failed to remove the satellite dish and restore the building
immediately, the landlord would commence legal proceedings. The tenant
again failed to respond, and on August 5, 2020, the landlord served an eviction
notice requiring that he vacate the property by September 10.

At the hearing on the eviction, the tenant did not contest that he had
installed the satellite dish, or that doing so violated the lease. Instead, for the
first time, he took the position that the OTARD rule “allows a tenant to place
satellite dishes of certain sizes on apartments,” and that the OTARD rule
supersedes the inconsistent lease provision. He further claimed that he had
“received oral permission from [the landlord] . . . to install the dish on the
ground next to his apartment.” In awarding possession to the landlord, the
trial court found that the tenant materially breached the lease, and that he
failed to cure the breach despite being provided notice and an opportunity to
cure it. The trial court further found the tenant’s claim that he received oral
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permission to install the satellite dish not to be credible. The trial court did not
expressly address the tenant’s argument under the OTARD rule.

On appeal, the tenant argues that the satellite dish met the criteria for
protection under the OTARD rule. Accordingly, he contends that the trial court
erred by not dismissing the case. The landlord counters that, because the
tenant did not prove that he had exclusive use or control over the lawn
adjacent to the apartment building, or to the building’s exterior wall, he was
not protected by the OTARD rule. We agree with the landlord.

By its express language, the OTARD rule prohibits a lease restriction
only “to the extent it . . . impairs” the “installation, maintenance, or use of” a
qualifying satellite dish “on property within the exclusive use or control of the”
tenant. 47 C.F.R. § 1.4000(a)(1) (emphasis added). The rule does not apply to
the extent that the restriction impairs the installation, maintenance, or use of a
satellite dish on property that is not within the tenant’s exclusive use or
control, such as on property within the “common area” of leased property. See
Building Owners and Managers Ass’n Int. v. F.C.C., 254 F.3d 89, 93 & n.4
(D.C. Cir. 2001) (observing that OTARD rule allows tenants to install certain
satellite dishes wherever the tenants rent space outside a building, but not “on
common property such as outside walls” or “restricted access areas such as
rooftops”); Watson v. Village at Northshore I Ass’n, 184 A.3d 1133, 1152-53 (Vt.
2018) (ruling that condominium association was allowed to enforce ban on
satellite dishes because the property to which a condominium unit owner
sought to install a satellite dish constituted “common area” to which the owner
did not have exclusive use and control); see also Burelle v. Pienkofski, 84 N.H.
200, 201 (1929) (holding that a landlord is liable for injuries caused by defects
in “those portions of the premises which the landlord furnishes for the common
use of his tenants and over which he retains control”). The threshold question
regarding the enforceability of the lease restriction in this case, therefore, is
whether the property on which the tenant installed his satellite dish is property
that is within his exclusive use or control under the terms of his lease. See
Watson, 184 A.3d at 1152.

The tenant claims in his brief that he installed the satellite dish “in a
part of his leasehold where he has exclusive control.” However, he cites no
provision of the lease or any other evidence to support this claim. Nor did he
assert in his offer of proof at trial that he installed the satellite dish in a portion
of the leasehold under his exclusive control, and the record contains no
evidence otherwise supporting that assertion. In his reply brief, the tenant’s
only response to the landlord’s argument that he did not have exclusive use or
control over the lawn or the building’s exterior wall is to argue that the landlord
waived that argument by not raising it at trial.

As noted above, the evidence demonstrates that the tenant installed the
satellite dish on the grass lawn adjacent to his apartment, and ran cable from
the satellite dish to the apartment through holes drilled into the building’s
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exterior wall. Although the lease grants the tenant the right to exclude others
from the “premises,” defined as the “2 bedroom apartment located at: 9
BRIDLE PATH #104 Londonderry, NH 03053,” it prohibits him from
obstructing the “common area,” including the “grounds,” with “personal
belongings,” and obligates the landlord to maintain the “common grounds.”

We determine the parties’ intent under the lease from the plain meaning
of the language used within it. DiMinico v. Centennial Estates Coop., 173 N.H.
150, 154 (2020). The plain meaning of the term “grounds” includes “the
gardens, lawn, and planted areas immediately surrounding and belonging to a
house or other building.” Webster’s Third New International Dictionary 1002
(unabridged ed. 2002). Thus, the lawn adjacent to the building falls within the
meaning of “grounds” or “common grounds,” or the “common area,” to which
the lease expressly assigned maintenance responsibility to the landlord. The
“apartment building,” which necessarily includes its exterior wall, is likewise
expressly within the scope of the landlord’s maintenance responsibility.
Because the lawn and the exterior wall are not areas within the tenant’s
exclusive use or control under the lease, the OTARD rule does not apply to the
tenant’s satellite dish installation. See Watson, 184 A.3d at 1152-53.

We reject the tenant’s argument that the landlord waived the right to
argue that he lacked exclusive use or control over the property on which he
installed the satellite dish because the landlord did not raise this argument at
trial. The burden to demonstrate that an argument was preserved generally
falls upon the appealing party, here the tenant. See, e.g., Thompson v.
D’Errico, 163 N.H. 20, 22 (2011). Moreover, it is the appealing party’s burden
to establish reversible error, and to present developed legal argument on
appeal. Gallo v. Traina, 166 N.H. 737, 740 (2014); State v. Blackmer, 149 N.H.
47, 49 (2003). We assume the trial court made all findings necessary to
support its decision, Smith v. Lillian V. Donahue Trust, 157 N.H. 508, 508
(2008), and we will affirm the trial court, regardless of the reasons it relied
upon to reach its decision, if the record demonstrates that it reached the
correct result, In re Estate of McCarty, 166 N.H. 548, 552 (2014). Here, even if
the landlord had filed no brief, we would affirm because the tenant has not
established that the area on which he installed the satellite dish is “property
within [his] exclusive use or control” under the lease. See Gallo, 166 N.H. at
740; Blackmer, 149 N.H. at 49.

Affirmed.

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

Timothy A. Gudas,
Clerk

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