It's unclear if either side has upper hand in court

NASHUA – Attorneys who handle disputes between landlords and tenants are at odds when it comes to whom the law favors more in court.

Count Nashua attorney Fred Mayer as one who thinks the law is stacked against landlords.

“If a landlord doesn’t dot an ‘I’ or cross a ‘T’ in his eviction notice, his case gets thrown out and he has to start over from scratch,” said Mayer, who often represents landlords and property owners.

For tenants, Mayer said, the law is enforced in the opposite manner.

“They are not required to comply with the usual prerequisites of pleading and proof that apply to other civil cases. In other words, you get damages even if you don’t prove them, and not only that, but the judge has no discretion if the statute is violated, it doesn’t matter,” he said.

Not so fast, said Christine Wellington, staff attorney for New Hampshire Legal Assistance in Manchester. She doesn’t buy the argument that the law is set up for tenants.

“This has traditionally been a conservative, business-oriented state,” Wellington said.

“To actually think that any law that regulates a business would be totally against business people just doesn’t make sense to me. I think that the New Hampshire laws are pretty well balanced . . . these cases do move quickly.”

More importantly, tenants are not the mere guests of their landlords, Wellington said.

“There are competing interests, and there is a property interest of the tenant in their place . . . there are due process issues,” she said.

These two lawyers are clearly on opposite sides of the fence.

Mayer, an attorney in the city since 1987 has devoted a majority of his practice to helping landlords, while Wellington former housing attorney for the Nashua branch of NHLA, has devoted a majority of her practice to helping tenants with legal matters.

Still, Mayer and Wellington have joined together to help local landlords and tenants, teaching basic landlord-tenant law seminars at the Nashua Public Library.

Landlords who do attempt to work with tenants can run into further problems if they don’t know the law, he said. (See related story)

One example: When a landlord starts an eviction process and takes a partial payment from a tenant intending to continue with the eviction, Mayer said. Landlords in such situations must give their tenants written notice of their intent to continue with the eviction process or else waive their right to go forward, Mayer said.

“It strikes me that the landlord has to go through x-number of procedures just to retain the right to his money that both sides admit he is owed.”

While Wellington’s practice has focused on helping tenants retain housing, she agreed that it is sometimes tough for the “good guy” landlords who do attempt to work with their tenants.

The costs are often what make landlords avoid getting legal help when they most need it, she said. “They wait a few months while (the tenants) say, ‘I am going to catch up, I am going to catch up,’ and then they are out a couple thousand dollars,” Wellington said. “Then they have pay a couple thousand for an attorney.”

For tenants at the beginning of an eviction process, Mayer and Wellington agreed on one basic rule: Lack of money is not a defense.

“We try to get the word out to tenants that they can’t fail to pay their rent,” Wellington said. “You have to prioritize; you have to pay rent.”

Other defenses, such as existing code violations in the property, also don’t work if the tenant starts to complain about alleged violations after falling behind on rent, Mayer said.

While the law states that a tenant can withhold rent for violations of minimum housing code that the tenant did not cause, they must notify the landlord in writing first, giving the landlord two weeks to make repairs.

Tenants must not be behind in rent when they make such written notifications to their landlords, and they must also have the full amount of unpaid rent available to the court at the time of any hearing that involves such claims.

Like landlords, tenants oftentimes make things worse by failing to seek legal help at the start of an eviction, a big mistake, according to Wellington.

Of the more than 1,000 eviction cases that Nashua District Court handles in a year, Wellington estimated that about 80 percent are non-payment cases that probably could have been avoided if the tenant had sought legal advice prior to the court hearing.

“Even if you have a case that you can’t win, you can sometimes still negotiate something that will give you much more time than waiting for a writ of possession to be issued,” she said.

What tenants need to understand, Wellington said, is that the law limits what a judge can do in a nonpayment eviction case, despite the desperate circumstances that may have caused it.

“If you have a lawyer, you are going to get advice that is going to help you keep your housing,” Wellington said. “It is going to benefit you.”