2005 Fall, 68. LEX LOCI A Survey of New Hampshire Supreme Court Decisions.

AuthorBar Journal Author - Attorney Charles A. DeGrandpre

New Hampshire Bar Journal


2005 Fall, 68.

LEX LOCI A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar Journal Volume 46, No. 3, Pg. 68 Fall 2005 LEX LOCI A Survey of New Hampshire Supreme Court Decisions Bar Journal Author - Attorney Charles A. DeGrandpre

In a virtual torrent of important cases decided by the Supreme Court recently, one decision stands out as reversing what had appeared to be settled law in New Hampshire; i.e., the right of a landlord to evict a tenant for any non-discriminatory reason after the expiration of the tenant's lease. In a major victory for New Hampshire Legal Assistance's long time tenants' rights advocate, Attorney Elliott Berry, the Court, speaking through Judge Dalianis, interpreted our residential landlord tenant law as not allowing a termination simply because the lease has expired. The Court interpreted RSA 540:2, II(e), which provides for termination for "other good cause" as not encompassing as good cause the fact that the lease has expired:

Were the mere expiration of a lease to constitute good cause, then tenants could be evicted arbitrarily from their homes through no fault of their own; such evictions, as the legislature undoubtedly realized, create substantial hardships for tenants. At worst, tenants may become homeless as a result. Even when another residence is procured, the tenant must bear the expenses and inconveniences of moving. Relationships with friends and neighbors may be disrupted, children may be forced into new school districts, and local services and support systems for elderly and disabled tenants may be lost. Such a result would be contrary to what the legislature intended.

Furthermore, were the mere expiration of the lease to constitute good cause for eviction, it could enable landlords to evict when the true reason for eviction is ill-motivated. RSA 540:2, II was enacted to prevent landlords from evicting tenants for ill-motivated reasons. If the mere expiration of the lease were to constitute a good cause, a landlord who did not wish to continue renting to a tenant for any reason - for example, because the tenant became disabled during the course of the tenancy - could evict the tenant at the end of the lease without disclosing the true reason for eviction. This would be contrary to what the legislature intended.

This outcome surprises the author. As a result of the Court's opinion, the relationship of landlords and tenants may be significantly altered. It appears that before a tenancy is created, a landlord may generally choose his own tenant for any reason that is not discriminatory, but that once a tenancy is established, the landlord may not evict a tenant for any non-discriminatory reason of his choosing after the expiration of the lease.

Merrimack Valley Wood Products, Inc. v. Near, opinion issued May 9, 2005(fn1), revised June 22, 2005, made new law concerning the vexious issue of the enforceability of a non-competition agreement in an employment contract. The defendant, when employed by the plaintiff, signed a restrictive "covenant not to compete and a covenant not to disclose." It may be significant that the defendant worked for the plaintiffs for six months before he was asked to sign the agreement and only signed it when he was informed that his continued employment with the plaintiff was contingent upon signing the agreement. The covenants restricted the defendant, after the term of his employment, from disclosing to others "any list or lists of customers, business methods, systems, prices, trade secrets, or information of any kind or nature pertaining to the business of [the plaintiffs]." The defendant also agreed after leaving employment not to "sell to directly or indirectly, or cause to be sold, any materials to customers which [the plaintiffs] ha[ve] sold to within the twelve (12) months prior to the date of termination, for a period of one (1) year from the date of termination." The employee decided to leave the plaintiffs' employ. Before leaving, he returned his "price book" to the plaintiffs, which was described as "a confidential document...

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