A Written Lease is the Way to Go
A New Hampshire residential rental lease agreement should be comprehensive and carefully drafted so that both landlord and tenants are fully aware and understand their respective rights and responsibilities. Disputes in the landlord/tenant relationship arise because the parties have not addressed in writing certain issues such as who is responsible for making repairs, paying for services, what constitutes a nuisance or a material lease violation. The agreement should also address the procedures for terminating a lease and for return of deposits.
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New Hampshire landlords have obligations to their tenants, foremost of which is providing a safe and sanitary residence that complies with building and housing standards found under state law or local ordinances. Regarding discrimination in housing laws, landlords are prohibited from refusing to rent a unit to anyone on the basis of race, color, gender, national ancestry, religion, sexual orientation and disability. This includes misrepresenting the availability of a leased unit or applying different terms or conditions on a tenant based on disability or sexual preference.
New Hampshire’s housing discrimination laws do not apply to owners who live in a 3, 2 or 1-family unit. If you own a single family home and rent the residence without the assistance of a broker and without distributing ads that are discriminatory, you are exempt. These laws also do not apply if you rent no more than 5 units and you live in the dwelling.
Your responsibilities as a landlord include:
- Complying with minimum standards regarding sufficient lighting, air, heat, ventilation, running and hot water, plumbing and sewage systems
- Protecting tenants from fire hazards
- Regularly inspecting for rodent and insect infestations
- Providing sound railings, stairs and balconies
- Keeping common areas free of trash
- Providing a copy of the signed lease to the tenants within 30-days of the beginning of the tenancy
- Providing smoke detectors and smoke/fire detectors in common hallways and stairways in sound condition
A tenant has basic responsibilities as well:
- Maintain the property in a sanitary fashion and properly dispose of garbage
- Return the property in substantially the same condition as when the tenancy began
- Obey all laws
- Do not use the premises for commercial activity
- Notify the landlord if there are necessary repairs
- Allow the landlord entry if reasonable notice is given and is done at a reasonable time
- Do not disturb the right of other tenants to the quiet enjoyment of their residence
Contents of the Lease in New Hampshire
You must make certain disclosures to the tenants and be sure that they understand all terms and provisions to minimize disputes and provide for the orderly transition of the unit once the tenancy has ended.
You may consider including the following terms in your rental agreement:
- Name of property owner and property manager; address where rent is to be paid; emergency or maintenance contact information; address and name of person to whom legal documents and notices are to be served
- Names of all the tenants and any other occupants—have all adult tenants sign the lease so that they are jointly and severally liable for the lease terms, including the rent
- Address of the premises
- Beginning and end dates—or if the tenancy is weekly or monthly
- Right of tenant to terminate the lease if the tenant cannot move in or begin possession on the first day of the lease or if basic services are not provided within the first week of the tenancy
- Amount of rent and date it is due—state a grace period and amount of late fees—you may ask for prepaid rent to use if the tenant vacates with rent still outstanding
- Insufficient check fees—no statutory amount but should be no more than what you are charged by the bank
- Security deposit:
- no more than one month or $100, whichever is greater, if you own more than 6 rental units
- funds be kept in an escrow account or file a bond with the local municipality
- give the tenant a receipt with information containing the name of the institution where the funds are deposited or that a bond has been posted with the town clerk and that the tenant has 5 days to submit a list of damages discovered in the unit when taking possession
- If the deposit is held for at least 12-months, you are to pay the tenant the interest earned on the funds
- state that that the funds are to be used for damages that exceed normal wear and tear, or for any outstanding rent due upon surrender of possession, or for tenant’s share of increased real estate taxes
- that funds will be returned within 30-days of tenant vacating unit and sent to a forwarding address that is supplied by the tenant within this time or within the 30-day period submit a written, itemized statement with specific reasons for withholding deposit and including receipts and estimate of the costs of repair
- recommend that you set a time and date for a mutual inspection a short time after the tenant vacates with check-out list on hand
- Landlord’s obligations as noted above—may provide house or conduct rules that apply to all tenants and are for the convenience, safety and welfare of all tenants, provides for the fair distribution of services and facilities to all and preserves the landlord’s property from damage
- Tenant’s obligations as noted above—you may require the tenant to perform specific minor repairs or maintenance if it does not diminish the obligations of the landlord to provide a safe and sanitary residence
- Party responsible for certain utilities
- Major appliances being provided
- No commercial, business or illegal use of premises by tenant or conduct that constitutes a nuisance or is unlawful
- Landlord’s right to receive attorney’s fee and court costs for any court action against the tenant
- Pet clause—may limit type of pet, weight and require tenant to clean up pet waste in common areas; may charge a deposit except for service dogs
- Subletting clause—whether you allow it and if you have to consent to whomever is the sublessee
- Your right of entry to make repairs, inspect and show to future tenants or purchasers—reasonable notice and entry at reasonable hours; indicate that you may enter immediately if it is an emergency
- Notify landlord if absence from unit is to be 7 days or longer
- Demand for rent followed by 7 -day notice required for nonpayment of rent and for other material violations including:
- substantial damage to the premises caused by tenant or persons under tenant’s control
- behavior of tenant that adversely affects the health or safety of other tenants or of the landlord and his/her representatives
- tenant’s refusal to agree to a change in the existing rental agreement calling for an increase in the rent
- Other good cause
- Notice for increasing rent—30-days in advance of the effective date of the increase in a monthly lease (may not be for a discriminatory or retaliatory purpose)
- Provide disclosure of the presence of lead-based paint on the property for all rental property built before 1978—provide the tenant with an EPA pamphlet entitled “Protect Your Family from Lead in Your Home.”
Prohibited Lease Terms
There are certain terms and provisions that you may not include in your rental lease agreement:
- waiver of liability or limits to landlord’s liability
- agreement to confession of judgment on behalf of tenant
- allowing entry by landlord without notice
- unfair or uneven enforcement of tenants’ rules
- requiring more than one months’ rent for security deposit
- Allowing retention of security deposit beyond 30-days for no reason
- Allowing eviction without a court order
New Hampshire Security Deposits
In most rental agreements, you may only request a security deposit of either $100 or one month’s rent, whichever is higher although the possibility of a residential rent being $100 is slim to none. When you accept a deposit, you must give the tenant a receipt that includes the location of the financial institution where the funds are kept in an escrow account or that a bond has been posted with the town clerk. The tenants are also to be advised that they have 5 days to inspect the premises and submit a statement of the damages found.
For tenancies that last at least 12-months, you must pay the tenant the interest earned at the end of the year and in subsequent years.
Although the issue of damage caused by the tenant and the return of any portion of the security deposit is generally the most litigated issue within the landlord/tenant relationship, you can take steps to minimize disputes by a mutual inspection of the premises with a detailed inventory and examination of the unit’s condition before the tenant takes possession and after it is vacated.
The rental lease agreement must state that the deposit is to be used to cover damages caused by the tenant or anyone under the tenants’ control, for rent that is outstanding when the tenant vacates, or to pay the tenant’s share of increased real estate taxes.
You must return the deposit within 30-days to a forwarding address given to you by the tenant or submit an itemized statement of the damages and the cost of repairs. You should conduct a mutual inspection of the premises with the tenant and have on hand the original check-in inspection when the tenancy began to compare any alleged damages founds.
Termination of the Lease Requires Notice
There is no need to send a notice to terminate a fixed term rental agreement unless it is for nonpayment of rent or for some other material breach of the lease since it automatically expires on the last day indicated. If you want the tenant to remain, you may either accept the rent for all subsequent months whereby the lease becomes a monthly one or have the tenant sign a new one. You should consider having a clause in the agreement whereby the tenant must advise you 30-days before the end of the fixed term whether the tenant intends to stay or vacate. This 30-day notice period also applies to both parties who wish to terminate a monthly lease for no cause.
For nonpayment of rent, you must first send a demand for payment before you serve a 7-day notice to quit. The notice must advise the tenants that they may remain on the premises if they pay the entire rent due by the seventh day plus $15. Tenants only get 3 chances in one year to cure the nonpayment lease violation before you can send the notice with the proviso that the tenant no longer has any opportunity to cure the violation. The 7-day notice to quit also applies to instances where the tenant has substantially damaged the unit or engaged in conduct that affects the health and safety of others.
For any other grounds to evict the tenant for lease violations, a 30-day notice to quit is required. You have the option of allowing the tenant to remain if the breach is remedied within this time.
You may not self-evict a tenant without a writ of possession from the court. Self-help measures include shutting off utilities, denying the tenants’ access to the unit, making threats, entering without authorization or harassing the tenants into forcing them to leave.
Further, retaliatory evictions may subject you to fines or damages. This refers to terminating a lease within 6 months of an action where the tenant complained to governmental authorities about the premises or the tenant participated in a tenants’ advocacy group or after you completed repairs you were ordered to do by a housing board or agency.
Under the Servicemembers Relief Act, a tenant who is a member of the American Armed Forces including any of the uniformed services may terminate a fixed term lease if the tenant receives deployment orders to move more than 35 miles from the premises for more than 90 days or must live in a barracks or other residence supplied by the government. The tenant must provide a copy of the orders or at least a written statement from the commanding officer. The tenant must give 30-days’ and has no further obligations under the lease so long as the rent owed for the final rental term is paid.
Domestic Violence Exception
You may not evict a tenant who is a victim of domestic violence. The tenant must provide written verification of a domestic assault or a copy of a protective order. The tenant may also request that the locks be changes but at the tenant’s expenses. You may evict a tenant who has committed domestic violence, which applies to one of the tenants in the same unit.
Withhold and Deduct by Tenant
Under some circumstances the tenant can withhold paying rent if an essential service such as heat, electricity or plumbing is not functioning and is violating state or local health codes. The tenant must have given you written notice and an opportunity to correct the problem within 14-days.
There are specific and detailed state laws governing New Hampshire residential lease agreements. Contact an experienced landlord-tenant lawyer regarding your rental lease agreement if you have any concerns about your rights and responsibilities.
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