You should be aware of your rights under New Hampshire law and your landlord’s obligations so that you do not get taken advantage of. If you have concerns or questions about your security deposit or your lease that are not answered below, then call or stop by the Student Senate Legal Services Office (MUB room 115), and I will be happy to discuss it with you.

THE SECURITY DEPOSIT
The landlord may demand a security deposit to go along with the lease. The amount may be either $100 or one month’s rent, whichever is greater. (Make sure you receive a signed receipt from the landlord including the amount of the deposit and place where it will be held.) Hopefully, when you moved in you inspected the apartment and notified you landlord of any defects or needed repairs. You have five days to return a list to the landlord after you move in. Make sure you keep a copy for yourself. (If you don’t do an inspection within the first five days – do it anyway. Better late than never!)

After you move out, notify the landlord of your new address and request return of your security deposit in writing and keep a copy for your own records. The landlord must return the security deposit within 30 days; however, if the landlord does not have a forwarding address then he does not have to comply with this rule. A permanent address given to the landlord when you signed the lease is not sufficient. Phone calls are not good enough! YOU MUST GIVE FORWARDING ADDRESS IN WRITING!

The landlord may deduct the cost of repairs for damages from the security deposit. These damages must be actual and supported by receipts and proper documentation such as estimates for repairs. The landlord cannot make up amounts, such as $50 to replace the fire extinguisher when it really only cost the landlord $12.52 to have it re-filled at the hardware store. Furthermore, the landlord cannot charge you for something the landlord does not ever fix or replace. For example, a local landlord in Durham has been known to charge tenants over $500 every year to replace the carpets, and never actually replaces them. This practice is unlawful.

Also, the landlord cannot deduct for normal cleaning that must be done between rentals. However, if excessive cleaning is necessary, then a reasonable deduction for the cost will be allowable. It is always a good idea to ask you landlord IN WRITING to meet with you to inspect the apartment after you will have vacated and cleaned. If this is not possible, then buy a disposable camera and take pictures of the empty, clean apartment. It is a good idea to pay particular attention to the stove, refrigerator, toilet and shower. The landlord may not deduct for reasonable wear and tear that occurred during your stay.

The landlord may also deduct any rent that you still owe him/her so long as you receive a written record of how much rent is due and for what period of the lease this overdue rent covers. Remember, no matter what deductions the landlord makes, they must notify you in writing within 30 days of termination of the lease even if the landlord intends to keep your entire deposit. Failure to comply with the “30 day rule” means you may be entitled to double damages (twice the amount of your security deposit) in small claims court.

The landlord cannot withhold disputed amounts from your security deposit for anything other than damages or unpaid rent. So, if you have a dispute about a charge that does not relate you “damages” or “unpaid rent” and your landlord deducts it from your security deposit, you may have a claim against him/her.

THE LEASE
A lease is a contract; an agreement between you and your landlord, which defines what you should and should not do concerning your new apartment. It may be written or oral. Leases are usually written, because it is very difficult to prove the contents of an oral lease in court. (Oral leases are usually called tenancies at will and you or your landlord can terminate them with 30 days notice.)

When you sign a lease it becomes legally binding and a court may order you or your landlord to honor the agreement or fulfill your promises. Always read your lease carefully. If you have any questions or wish to change something in the lease, ask the landlord to explain the term and negotiate changes with him/her before you sign the lease. Write the changes out in your own words. Make sure all of the changes appear on your lease or on an addendum; written clearly so that someone else could understand the lease provisions.

Sometimes landlords include what may be illegal or unfair clauses in a lease. The lease, for instance, might state that when you sign, you “give up all of your legal rights under NH law.” This is illegal. If this lease becomes part of a court proceeding, the judge will remove the illegal clause and enforce the rest of the lease.

Another controversial clause is one that specifies a “liquidated damage” amount you must pay the landlord if the police are called, for instance, to investigate a noise violation. Under some circumstances this may be illegal. Consult Legal Services before you pay these types of “fines” to your landlord. Liquidated damages must be a reasonably accurate estimate of actual damages. If they amount to nothing more than a penalty, then it is illegal.

SUBLETTING
Watch out for clauses that prohibit your ability to sublet the apartment before your lease expires. This seems unfair, but it is more than likely legal. Leases more commonly contain clauses that only allow subletting with the written consent of the landlord. This protects the landlord by allowing him/her to maintain control over who is renting his properties. Even though you no longer live there, you are still liable to the landlord for performance of the promises in the lease. If your sublet signs an agreement with your landlord and then leaves without paying the rent, the landlord can take you to court and you may be able to take your sublettor to court to collect unpaid rent. If you find a sublet and your landlord “agrees” to let you out of the lease entirely, you must get this promise in writing, otherwise, the court will assume the lease is binding on the original parties. It is always in your best interest to find a subtenant who is reliable and trustworthy.

If the lease says nothing about subletting, always check with your landlord before subletting or letting someone else move in. When someone is living on the premises that are not on the lease, you may be found to have violated a material term of the lease and this may be ground for eviction.

If you do decide to sublet, make sure you and your sublettor write an agreement that covers all the issues that may come up; such as, who will clean the apartment at the end of the lease, who will pay the security deposit, returning keys, utility and phone bills, etc.

EVICTION
Your landlord can evict you for several reasons, such as: failure to pay rent; if substantial damages occur to the premises by you or your guests; behavior that effects the health and safety of others; failure to comply with a material term of the lease; or “other good cause.” The process the landlord must follow to evict is laid out in New Hampshire Statute RSA 540.

The landlord cannot simply tell you to be out in a week – no matter what the lease says. The landlord is required by law to deliver to you a “Notice to Quit,” which tells you to be out in 30 days or 7 days if the eviction is for non-payment of rent. If it applies to your situation, a “Demand for Rent” must also be served to you. After the time period in the “Notice to Quit” has elapsed the formal eviction process then begins in the court system and can take anywhere from 15 days to 3 months. The judge cannot give you less than 5 days to move out if you are evicted. Remember, only the judge can evict you, NOT your landlord. So, the entire legal process for eviction can take anywhere from 60-90 days. If you move out as a result of an eviction notice from your landlord, or as a result of a court eviction order, you will no longer be responsible for rental payments under the lease. The lease contract has been terminated.

However, if you move out before the lease expires, you may owe the landlord all of the rent due for the balance of the lease. You and the landlord, however, must try and find a replacement tenant for the remainder of the lease. This is called Mitigation of Damages. You can also mitigate damages if you prove you tried to find an acceptable replacement but the landlord rejected them. If all efforts have failed, then you may still be responsible for the rental payments.

Always know whose obligation it is to pay for utilities before you sign a lease. If the lease is silent about who pays for utilities, you are legally responsible.

If you have any concerns or questions about this information or how it applies to you, please contact Legal Services, MUB 115, or Off-Campus & Commuter Student Services, MUB 122.