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

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
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