Thedsanamoorthy Kalikuddy v. Sarah Ann Alicea & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0218, Thedsanamoorthy Kalikuddy v.
Sarah Ann Alicea & a., the court on December 20, 2021, issued
the following order:

Because the tenants, Sarah Ann Alicea and Allan Loria, did not file a
brief or a memorandum of law, this case proceeded on the brief filed by the
landlord, Thedsanamoorthy Kalikuddy, only. Having considered his brief and
the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). The landlord appeals an order
of the Circuit Court (Alfano, J.) entering judgment for the tenants on his
summary action for possession of residential property for reasons other than
nonpayment of rent. We reverse in part, vacate in part, and remand.

We review the trial court’s application of the law to the facts and its
statutory interpretation de novo. See Mahmoud v. Town of Thornton, 169 N.H.
387, 389 (2016). We will uphold the trial court’s factual findings unless the
evidence does not support them or they are erroneous as a matter of law.
Town of Atkinson v. Malborn Realty Trust, 164 N.H. 62, 66 (2012).

The landlord first argues that the trial court erred by entering judgment
for the tenants based upon RSA 540:13-d. See RSA 540:13-d (2021). RSA
540:13-d provides a defense for a residential tenant to a possessory action for
nonpayment of rent if the premises “are in substantial violation of the
standards of fitness for health and safety,” and if the violation “materially
affects the habitability of said premises.” RSA 540:13-d, I. However, under the
statute’s plain language, this defense is available only in an “action for
possession based on nonpayment of rent.” Id. The landlord’s possessory
action in this case was based upon the expiration of the lease’s term; it was not
based upon the tenants’ failure to pay rent. Accordingly, RSA 540:13-d does
not apply. Accordingly, we reverse the trial court’s judgment insofar as it
denied the landlord’s petition on the basis of RSA 540:13-d.

The landlord next asserts that, to the extent that the trial court found
that the property was restricted property, the trial court erred. RSA chapter
540 differentiates “nonrestricted property” from “restricted property.” See
generally RSA 540:2 (2021). Nonrestricted property “means all real property
rented for non-residential purposes” and certain real property rented for
residential purposes, including “[s]ingle-family houses, if the owner of such a
house does not own more than 3 single-family houses at any one time.” RSA
540:1-a, I(a) (2021). Restricted property “means all real property rented for
residential purposes, except those properties” listed in RSA 540:1-a, I. RSA
540:1-a, II (2021).

A landlord may terminate a tenancy involving restricted property only for
certain reasons constituting good cause. RSA 540:2, II; see AIMCO Props. v.
Dziewisz, 152 N.H. 587, 589-90 (2005). By contrast, a tenancy involving
nonrestricted property may be terminated for any lawful reason, regardless of
whether it constitutes good cause. See RSA 540:2, I. In this case, the only
reason the landlord gave for terminating the tenancy is that the lease expired,
which suffices to terminate a tenancy involving nonrestricted property, but
does not constitute good cause sufficient to terminate a tenancy involving
restricted property. See AIMCO Props., 152 N.H. at 590-92. Accordingly, “[t]he
question of whether . . . property constitutes restricted or nonrestricted
property is a threshold issue” for the trial court to decide. Ross, Tr. v. Ross, 170 N.H. 331, 341 (2017).

On the pre-printed notice of judgment form, the trial court checked one
box stating that the property is restricted property, but then checked another
box concerning the basis for the eviction that would apply only if the property
were nonrestricted property. However, the property cannot be both restricted
and nonrestricted.

We are unable to determine, as a matter of law, based upon the record
submitted, whether the property is restricted or nonrestricted. See Augur v.
Town of Strafford, 158 N.H. 609, 614 (2009) (explaining that when “the record
reveals that a reasonable fact finder necessarily would reach a certain
conclusion, . . . we may decide the issue as a matter of law.”). The landlord’s
writ identifies the property as nonrestricted property on the ground that it is a
single-family house and that he does not own more than three such houses.
See RSA 540:1-a, I (a). However, the evidence that the landlord submitted
appears to contradict this assertion. Specifically, the lease between the parties
identifies the property as a “[d]uplex.” Moreover, the landlord did not submit
evidence regarding the number of single-family houses that he owns.
Accordingly, we vacate the trial court’s findings related to whether the property
is restricted or nonrestricted property under RSA 540:1-a and direct it to
determine that threshold issue on remand. See Ross, Tr. v. Ross, 170 N.H. at
341. If the trial court finds that the property is restricted, it shall enter

2
judgment in favor of the tenants; if it finds that the property is nonrestricted, it
shall enter judgment in favor of the landlord. See AIMCO Props., 152 N.H. at
590-92.

Reversed in part; vacated in
part; and remanded.

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

Timothy A. Gudas,
Clerk

3