Barrington Oaks Cooperative, Inc. v. Frank Blackington

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0755, Barrington Oaks Cooperative, Inc.
v. Frank Blackington, the court on March 26, 2025, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The
defendant, Frank Blackington, appeals an order of the Circuit Court (Cross, J.)
granting the plaintiff, Barrington Oaks Cooperative, Inc. (Barrington Oaks), a
writ of possession. We affirm.

I. Background

The record supports the following facts. Barrington Oaks is a
manufactured housing park. See RSA 205-A:1 (2019). The defendant is the
son of the owner of the manufactured housing that is the subject of this
eviction proceeding. His father, who died in 2022, was also named Frank
Blackington.

On August 31, 2023, the plaintiff served an eviction notice and a demand
for rent addressed to “Frank Blackington & all other unknown occupants” at
the abode. The notice invoked both RSA chapter 205-A and RSA chapter 540.
The basis for the eviction was the failure to pay rent. Both documents stated
that the cited individuals had failed to pay rent for the period of July 1, 2023
through August 31, 2023. The demand for rent sought $855.00. The eviction
notice requested that the defendant vacate the property by October 1, 2023. It
also stated:

YOU HAVE THE RIGHT TO AVOID EVICTION FOR FAILURE TO
PAY RENT IF YOU ACT QUICKLY. To avoid eviction, you must pay
the Owner (Barrington Oaks Cooperative, Inc.) the following
amounts before your hearing in court.

• All lot rent due or past due as of the day you make your
payment;
• $15 in liquidated damages;
• Any other lawful charge(s) under your Occupancy Agreement
that you owe the Landlord; and
 • If you pay after an eviction case (Landlord and Tenant Writ)
is filed in court, you must also pay the filing fee ($125) and
any service costs, which are listed on the sheriff’s return of
service.

On November 15, 2023, the plaintiff served “Frank Blackington and all
other occupants” with a landlord and tenant writ seeking possession of the
premises. The trial court held a hearing on November 29, 2023. At the
hearing, the plaintiff established that the amount of rent owed was $855.00 for
July and August 2023 and that the rent had not been paid for the amount and
the dates shown by the demand for rent in the eviction notice. The trial court
found that the defendant in this case was a tenant during the relevant period.
That finding has not been appealed.

After the plaintiff completed presentation of its case by offers of proof, the
defendant testified and asserted that he had offered to pay the plaintiff $1,000
multiple times before the hearing but the plaintiff had refused to accept his
offers. The trial court issued a writ of possession to the plaintiff finding that
the defendant had “failed to pay the required rent.” This appeal followed.

II. Analysis

On appeal, the defendant argues that: (1) the trial court erred by “failing
to properly consider [the defendant’s] multiple attempts to pay the arrearage in
full”; (2) RSA 540:9 requires dismissal of an eviction action when “the tenant
tenders the necessary payment”; (3) the trial court violated the defendant’s due
process rights under the New Hampshire and United States Constitutions; and
(4) the trial court erred by providing the defendant with an inadequate
explanation of the trial process.

We will not disturb the findings of the trial court unless they lack
evidentiary support or are erroneous as a matter of law. Sherryland v. Snuffer, 150 N.H. 262, 265 (2003). Legal conclusions, as well as the application of law
to fact, are reviewed independently for plain error. Id. Accordingly, our inquiry
is to determine whether the evidence presented to the trial court reasonably
supports its findings, and then whether the court’s decision is consonant with
applicable law. Id. Finally, we review questions of law de novo. Id.

We first address the defendant’s argument that the trial court failed to
consider his offers to “pay the arrearage in full, as allowed under RSA 540:9.”
Resolving the defendant’s argument requires that we engage in statutory
interpretation. We review the trial court’s statutory interpretation de novo. St.
Onge v. Oberten, LLC, 174 N.H. 393, 395 (2021). We first look to the language
of the statute itself, and, if possible, construe that language according to its
plain and ordinary meaning. Id. We give effect to every word of a statute

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whenever possible and will not consider what the legislature might have said or
add language that the legislature did not see fit to include. Id. We also
construe all parts of a statute together to effectuate its overall purpose. Id.
However, we do not construe statutes in isolation; instead, we attempt to
construe them in harmony with the overall statutory scheme. Id.

RSA 540:9, I(a) (Supp. 2024) provides, in relevant part, that “[a]ny
possessory action based solely on nonpayment of rent shall be dismissed if”:

The tenant, at any time prior to the hearing on the merits,
pays to the landlord, in cash, certified check, prepaid money order,
electronic transfer, or other guaranteed or immediately drawable
funds, including any form of payment specified in 540:9-a, I, all rent
due and owing through the time of such payment plus other lawful
charges contained in the lease, $15 liquidated damages, and any
filing fee and service charges incurred by the landlord in connection
with the possessory action . . . .

The statute’s plain terms allow a tenant to avoid eviction if the tenant pays,
among other things, all rent due and owing through the time of payment.
When the defendant received the eviction notice, he owed the plaintiff $855 for
rent due in July and August 2023. The defendant testified that prior to the
hearing, he offered to pay the plaintiff $1,000.

The statute requires that the defendant pay the plaintiff, not merely offer
or tender payment. Id. The Oxford English Dictionary defines “pay” as “[t]o
give, transfer, or hand over (money, or its equivalent) in return for goods or
services, or in discharge of an obligation; to deliver (a sum or amount owed).”
Oxford English Dictionary,
https://www.oed.com/dictionary/pay_v1?tab=meaning_and_use#31294380
(last visited March 20, 2025). To “pay” means that the defendant must have
given Barrington Oaks the money required to cure. Thus, the defendant’s
offers to pay the plaintiff were insufficient as a matter of law. Accordingly, the
trial court did not err in finding that the defendant did not cure under RSA
540:9.

The defendant next argues that “[t]he tender by the tenant of payment to
the landlord . . . has the same legal effect as payment thereof to the landlord.”
RSA 540:9 does not contain the word “tender.” Rather, a tenant must “pay[] to
the landlord” “all rent due and owing” through the time of such payment. RSA
540:9, I(a). Under the plain language of the statute, a tender of payment is
insufficient for a tenant to cure under RSA 540:9.1

1 We agree with the special concurrence with respect to the interpretation of RSA chapter 205-A,

and the court will address the merits of the issue should it be raised in an appropriate case.

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 The remaining arguments raised by the defendant are either not
preserved, see State v. Blackmer, 149 N.H. 47, 49 (2003), or without merit, and
do not warrant further discussion, see Vogel v. Vogel, 137 N.H. 321, 322
(1993).

Affirmed.

BASSETT, DONOVAN, and COUNTWAY, JJ., concurred; MACDONALD,
C.J., specially concurred.

Timothy A. Gudas,
Clerk

MACDONALD, C.J., specially concurring.

I agree with the majority’s conclusion on the merits: the defendant’s
offers to pay the plaintiff $1,000 prior to the hearing on the possessory action
were insufficient to cure under RSA 540:9, I(a) (Supp. 2024) as a matter of law.
I write separately to highlight the disharmony between the cure provisions set
forth in the statute governing the termination of tenancies in manufactured
housing parks, RSA chapter 205-A, and the statute governing landlord-tenant
cases, RSA chapter 540.

In relevant part, RSA 205-A:4 provides that a basis for termination of a
tenancy in a manufactured housing park includes “[n]onpayment of rent”
except that “no action for possession shall be maintained if prior to the
expiration of an eviction notice the tenant shall pay or tender all arrearages
due plus $15 as liquidated damages.” RSA 205-A:4, I (2019).

As noted above, the plaintiff relies on RSA 540:9 (2019), which governs
payment after an eviction notice in landlord-tenant cases. As amended in
2021, RSA 540:9, I(a) states, in relevant part, that “[a]ny possessory action
based solely on nonpayment of rent shall be dismissed” if, prior to the hearing
on the merits, a tenant pays to the landlord “all rent due and owing through
the time of such payment plus other lawful charges contained in the lease, $15
liquidated damages, and any filing fee and service charges incurred by the
landlord in connection with the possessory action . . . .”

RSA 205-A:9 provides that “RSA 540 shall apply to tenancies in
manufactured housing parks except where such application would produce a
result inconsistent with or contrary to the provisions of this chapter.” The
application of RSA 540:9, I(a) would produce a result arguably “inconsistent
with or contrary to” RSA 205-A:4, I, in at least two respects. First, the latter
statute provides for cure by either payment or tender of all arrearages due plus

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$15 liquidated damages. Second, the period to cure is different: RSA 205-A:4,
I, presents a cure “prior to the expiration of” the eviction notice; RSA 540:9,
allows a cure “at any time prior to the hearing on the merits.” I note that the
tenant in a landlord-tenant case may have to pay more than the manufactured
housing tenant to cure in many cases.

Neither party before us raised this issue. I highlight it because it may
warrant consideration in an appropriate case.

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