[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0019](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0019LOPS.doc)

[Link to
GCH-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

[Link to
GCH-0022](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0022LOPS.doc)

Legal Opinion: GCH-0031

Index: 2.245

Subject: PH Due Process Determination: New Hampshire

December 20, 1991

Honorable Judd Gregg

Governor of New Hampshire

Concord, New Hampshire 03301

Dear Governor Gregg:

I am happy to advise you of a new public housing \"due

process determination\" for the State of New Hampshire.

Under Federal law, if the Secretary of the Department of

Housing and Urban Development (HUD) determines that law of the

jurisdiction requires a pre-eviction court hearing with the

basic \"elements of due process\" (42 U.S.C. 1437d (k), as amended

in 1990), a public housing agency (PHA) is not required to

provide an administrative grievance hearing before evicting a

public housing tenant for:

1\. Any criminal activity that threatens the health,

safety, or right to peaceful enjoyment of the premises

of other tenants or employees of the PHA; or

2\. Any drug-related criminal activity on or near such

premises.

In accordance with the law, HUD has recently issued a

regulation which revises HUD\'s definition of due process

elements at 24 CFR 966.53(c) (56 Federal Register 51560,

October 11, 1991).

Pursuant to the revised regulation, HUD has determined that

the New Hampshire law governing an eviction by either of the

following judicial proceedings requires that the tenant have the

opportunity for a pre-eviction hearing in court containing the

elements of due process as defined in 24 CFR 966.53(c) of the

HUD regulations:

\-- a summary action for eviction under Chapter 540 of the New

Hampshire Revised Statutes Annotated.

\-- a civil action of ejection and entry.

The basis of HUD\'s determination is explained in the legal

analysis enclosed with this letter.

In accordance with HUD\'s determination, a PHA operating

public housing in the State of New Hampshire may exclude from

its administrative grievance procedure any grievance concerning

an eviction or termination of tenancy which involves any

criminal activity that threatens the health, safety, or right to

peaceful enjoyment of the premises of other tenants or employees

of the PHA, or any drug-related criminal activity on or near

such premises.

When a PHA evicts a public housing tenant, for the reasons

set forth above, pursuant to a summary action for eviction under

Chapter 540 of the New Hampshire Revised Statutes Annotated, or

a civil action of ejection and entry, the PHA is not required to

afford the tenant the opportunity for an administrative hearing

on the eviction under 24 CFR Part 966, and may evict a public

housing tenant pursuant to a decision in such judicial action.

Very sincerely yours,

Jack Kemp

Enclosure

HUD DUE PROCESS DETERMINATION

for the

STATE OF NEW HAMPSHIRE

TABLE OF CONTENTS

I. Jurisdiction.

II\. Elements of Due Process.

III\. Overview of New Hampshire Eviction Procedures.

A. Overview: Summary Process Action.

B. Overview: Action of Ejection and Entry.

C. Rules of Evidence.

IV\. Analysis of New Hampshire Eviction Procedures for

Each of the Regulatory Due Process Elements.

A. Summary Process Action.

B. Action of Ejection and Entry.

V. Conclusion.

ANALYSIS

I. Jurisdiction: New Hampshire.

II\. Elements of Due Process

Section 6(k) of the United States Housing Act of l937

(42 U.S.C. 1437d(k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. 101-625, approved

November 28, 1990), provides that:

For any grievance concerning an eviction or termination of

tenancy that involves any criminal activity that threatens

the health, safety, or right to peaceful enjoyment of the

premises of other tenants or employees of the public housing

agency or any drug-related criminal activity on or near such

premises, the agency may . . . exclude from its grievance

procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing

in court which the Secretary determines provides the basic

elements of due process . . . .

The statutory phrase, \"elements of due process,\" is defined

by HUD at 24 CFR 966.53(c) as:

NEW HAMPSHIRE DUE PROCESS DETERMINATION

. . . an eviction action or a termination of tenancy in a

State or local court in which the following procedural

safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses and to present any

affirmative legal or equitable defense which the tenant

may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures

satisfy this regulatory definition is called a \"due process

determination.\"

The present due process determination is based upon HUD\'s

analysis of the laws of the State of New Hampshire to determine

if eviction procedures under those laws require a hearing which

comports with all of the regulatory \"elements of due process,\" as

defined in 966.53(c).

In New Hampshire, the landlord may evict a tenant either by:

1\. A summary action for eviction under Chapter 540 of the New

Hampshire Revised Statutes Annotated (RSA).

2\. A civil action of ejection and entry.

HUD finds that the requirements of New Hampshire law

governing an action for eviction under Chapter 540, or a civil

action of ejection and entry, include all of the elements of

basic due process, as defined in 24 CFR 966.53(c). This

conclusion is based upon requirements contained in the New

Hampshire RSA, case law and court rules.

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NEW HAMPSHIRE DUE PROCESS DETERMINATION

III\. Overview of New Hampshire Eviction Procedures

A. Overview: Summary Process Action

In the State of New Hampshire, a person claiming the right

to possession of real property may bring a summary process

eviction action against a tenant under RSA Chapter 540 (\"Actions

Against Tenants\").

Court Jurisdiction

A summary process action under Chapter 540 may be brought in

the New Hampshire District Court or Municipal Court.1

RSA 540:13 gives the Municipal Court jurisdiction to hear a

Chapter 540 landlord-tenant summary possession action:

a writ of summons may be issued, returnable before a

municipal court, setting forth in substance that the

plaintiff is entitled to the possession of the demanded

premises, and that the defendant is in possession thereof

without right . . . .

1 In New Hampshire, any real property occupied by tenants

is categorized as either \"Nonrestricted property\" or \"Restricted

property\" (as described in RSA 540:1-a). Public housing units

are considered \"restricted property.\" The tenancy of a tenant

who occupies restricted property may only be terminated for the

following reasons (RSA 540:2(II)):

\(a\) Neglect or refusal to pay rent due and

in arrears, upon demand.

\(b\) Substantial damage to the premises by

the tenant, members of his household, or

guests.

\(c\) Failure of the tenant to comply with a

material term of the lease.

\(d\) Behavior of the tenant or members of his

family which adversely affects the

health or safety of the other tenants or

the landlord or his representative.

\(e\) Other good cause.

3

NEW HAMPSHIRE DUE PROCESS DETERMINATION

RSA 502-A:34 provides that:

t he district courts, except as otherwise provided herein,

shall have the jurisdiction, powers and duties conferred

upon municipal courts by the Revised Statutes Annotated, and

amendments thereto.

Both the District Courts and Municipal Courts are empowered to

hear summary process actions. RSA 502-A:32 provides that

District Court actions are subject to \"all provisions of law, not

inconsistent herewith with Chapter 502-A (concerning

establishment and function of the District Courts) \" relating to

civil procedure in the Municipal Courts.

New Hampshire\'s Municipal Courts are being phased out and

replaced by District Courts. RSA 502-A:35. However, where

Municipal Courts still exist, both the District Courts and

Municipal Courts possess jurisdiction to hear landlord-tenant

cases under Chapter 540.

A Chapter 540 summary process action in the District Court

or Municipal Court is subject to the District and Municipal Court

Rules (DMCR). There are a few District and Municipal Court rules

relating solely to landlord-tenant actions. DMCR Rule 5.1 to

Rule 5.7.

B. Overview: Action of Ejection and Entry

In addition to a summary process action under Chapter 540,

an individual claiming the right to possession of real property

may also bring a common law action for ejection and entry in

Superior Court. The New Hampshire Supreme Court has ruled that

the civil action of ejection and entry continues to be available

to New Hampshire litigants despite the existence of an

alternative summary process remedy. Cooperman v. MacNeil,

123 N.H. 696, 465 A.2d 879 (1983).

In Cooperman the court ruled that the \"jurisdictional and

procedural requirements of RSA Chapter 540 the summary process

statute do not apply\" to ejectment and entry. Moreover,

RSA 540:26 provides that nothing in the chapter on \"Actions

Against Tenants\" (Chapter 540) \"shall be construed to prevent a

landlord from pursuing his legal remedy at common law.\"

RSA 491:7 grants the Superior Court jurisdiction to hear

\"civil actions and pleas, real, personal and mixed, according to

the course of the common law, except such actions as are required

to be brought in the District courts under RSA 502-A. . . .\" The

4

NEW HAMPSHIRE DUE PROCESS DETERMINATION

jurisdictional and procedural requirements of an ordinary

Superior Court civil action apply to an action for ejection and

entry.

An action for ejection and entry in Superior Court is

subject to the Superior Court Rules (SCR). Rules of the Superior

Court are promulgated pursuant to the Supreme Court\'s grant of

authority at RSA 490:4 and the Superior Court\'s rule-making

authority at RSA 491:10.

C. Rules of Evidence

The New Hampshire Rules of Evidence (NHRE) govern

proceedings in New Hampshire courts. NHRE Rule 101.

IV\. Analysis of New Hampshire Eviction Procedures for Each of

the Regulatory Due Process Elements

A. Summary Process Action

The following discussion considers each of the elements of

the regulatory due process definition at 24 C.F.R. 966.53(c).

The analysis describes how each element is satisfied in a summary

process action in the New Hampshire District or Municipal Court.

HUD finds that the legal requirements for the commencement and

maintenance of a summary process eviction action contain the

elements of basic due process in 24 C.F.R. 966.53(c).

1\. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR 966.53(c)(l))

Notice to Quit

Under New Hampshire Law, public housing units are classed as

\"restricted property\" (see footnote 1 of this due process

determination). RSA 540:1-a. Before commencing a summary

eviction action, a landlord of restricted property must give the

tenant notice to quit in accordance with RSA 540:3 (\"Notice to

Quit\") and RSA 540:5 (\"Service of . . . Notice to Quit\").

RSA 540:2.

The landlord must give notice to quit for a minimum period

of time. The notice period depends on the reason for the

termination. RSA 540:3.II.

The notice to quit \"shall state with specificity the reason

for the eviction.\" RSA 540:3.III.

5

NEW HAMPSHIRE DUE PROCESS DETERMINATION

Commencement of Action

After completing the notice to quit, a writ of summons must

be issued and served on the tenant. RSA 540:13 provides that:

A writ of summons may be issued, returnable before a

municipal court, setting forth in substance that the

plaintiff is entitled to the possession of the demanded

premises, and that the defendant is in possession

thereof without right, after notice in writing to quit

the same . . . .

The landlord/tenant writ must include notice that the tenant has

the right to appear and be heard in the action. DMCR 5.7.

DMCR Rule 3.7 requires that:

All writs at the time of service upon the defendant

shall have attached thereto a specification setting

forth the particulars of the claim or a special

declaration, but the Court, for good cause shown, may

waive this requirement on motion of the plaintiff,

which must be filed at the time of entry of the writ

and accompanied by such specification or special

declaration and a statement that copies of the same

have been mailed or delivered to the defendant or his

attorney, but the Court for good cause shown upon

motion also filed with the writ may extend the time for

filing specification or special declaration.

Under DMCR Rule 3.7, the defendant must be served with the

specification or special declaration at service of the writ, or

before the writ is entered. (We assume this refers to entry of

the writ in the court docket prior to trial.) With good cause

shown, upon motion filed with the writ, the specification or

special declaration may be filed at a later time (but presumably

in time to permit an adequate opportunity for defense of the

action).

The preeminent case in New Hampshire on the detail necessary

in court pleadings is Morency v. Plourde, 96 N.H. 344, 76 A.2d

791 (1950). In this case, the New Hampshire Supreme Court

stated:

Pleadings ought to be simple, concise and indicate the

theory on which the plaintiff has proceeded so that the

opposing party can adequately defend. The defendant is

6

NEW HAMPSHIRE DUE PROCESS DETERMINATION

entitled to be informed of the theory on which the

plaintiffs are proceeding, and the redress that they

claim as a result of the defendant\'s actions . . . .

76 A.2d at 792.

Notice: Conclusion

Under New Hampshire law, the tenant must be given \"adequate

notice,\" as required by HUD\'s due process definition at 24 C.F.R.

966.53(c)(1), of the grounds for termination and eviction.

Such notice is provided in the notice to quit prior to

commencement of the action, and in the pleadings for commencement

of the action.

2\. Right to be represented by counsel

(24 CFR 966.53(c)(2))

The right of a tenant to be represented by counsel is

implied by DMCR Rule 1.3. This rule regulates practice by

attorneys before the District and Municipal Courts, and

specifically addresses the manner in which \"either party\" may

\"change attorneys during the pendency of the action.\" Other

references to counsel also assume that the parties have a right

to representation by counsel. E.g., DMCR Rule 1.7 (headed

\"Arguments of Counsel\"), DMCR Rule 1.8-A.D (motions for

continuance \"by counsel\"), DMCR Rule 3.1 (issuance of writs to

attorneys).

3\. Opportunity for the tenant to refute the evidence

presented by the PHA, including the right to

confront and cross-examine witnesses

(24 CFR 966.53(c)(3))

Rules of Evidence

The New Hampshire Rules of Evidence (NHRE) govern

proceedings in the New Hampshire courts. NHRE Rule 101. The

NHRE apply therefore to a summary process eviction action in the

New Hampshire District or Municipal Court.

The NHRE are intended to promote the development of the law

of evidence in order to attain the truth in a judicial

proceeding. NHRE 102. Generally, all relevant evidence is

admissible unless limited by constitutional requirements or by

statute or by rules of the State courts. NHRE 402. Relevant

evidence may only be excluded if probative value of the evidence

is substantially outweighed on grounds of prejudice, confusion,

or waste of time. NHRE 403.

7

NEW HAMPSHIRE DUE PROCESS DETERMINATION

The court shall determine the qualifications of a witness

and the admissibility of evidence based on the court\'s

determination of relevance. NHRE 104(a). The rules do not limit

the right of a party to present relevant evidence before the

jury. NHRE 104(e). Generally, every person is deemed competent

to be a witness unless specifically disqualified due to

prescribed incapacities. NHRE 601(a), (b). A witness may not

testify unless the witness has personal knowledge of the matter

(other than opinion testimony by expert witnesses). NHRE 602.

A witness may be cross-examined on any matter relevant to

issues in the case, including cross-examination on issues of

credibility. NHRE 611(b). Ordinarily, leading questions are

permitted on cross examinations of an adverse witness.

NHRE 611(c).

The defendant-tenant may seek to refute the credibility of

plaintiff\'s witness. The credibility of a witness may be

impeached by any party. NHRE 607. The credibility of a witness

may be attacked by evidence of untruthfulness. The truthful

character of the witness may be attacked by reputation evidence.

NHRE 608(a). A witness\' credibility may also be attacked by

evidence of a prior conviction of a crime which involved

dishonesty or was punishable by death or imprisonment for a year

or more. NHRE 609. A witness\' prior statement is also subject

to examination. NHRE 613.

A party has a right to inspect writings or recorded

statements utilized in court by the adverse party. NHRE 106.

This enables the defendant-tenant to refute evidence presented by

the PHA.

A defendant-tenant has the right to present evidence and

witnesses to refute the case presented by the PHA, subject to

reasonable judicial control as to the method of interrogating

witnesses and of presenting evidence on direct and cross-

examination. NHRE 611(a).

The New Hampshire rules of evidence and procedure give a

defendant-tenant a full opportunity to defend against and refute

the PHA\'s evidence, including the right to confront and cross-

examine witnesses.

District and Municipal Court Rules

DMCR Rule 3.20(c) provides that a defendant may \"put in his

whole defense,\" and thereafter introduce evidence \"in reply to

8

NEW HAMPSHIRE DUE PROCESS DETERMINATION

the rebutting evidence.\" We believe the rule implies that the

defendant has the right to confront and cross-examine plaintiff

witnesses in order to \"put in\" a defense, as well as the right to

present defense witnesses.

4\. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

(24 CFR 966.53(c)(3))

The District and Municipal Court Rules do not restrict a

tenant\'s right to present any legal or equitable defenses the

tenant may have as a matter of substantive law. DMCR Rule 3.20

provides that:

In all trials . . . the defendant shall, before

resting, put in his whole defense . . .

5\. A decision on the merits (24 CFR 966.53(c)(4))

RSA 540:14 provides that (other than on a defendant\'s

default):

if on trial it is considered by the court that the plaintiff

has sustained his complaint, judgment shall be rendered that

the plaintiff recover possession of the demanded premises

and costs . . . .

DMCR 3.26, which is captioned \"Rendition of Decision,\"

provides as follows:

A decision on the merits shall be rendered within sixty

days following the hearing and submission of briefs or

memoranda, if any. (Emphasis added.)

Under the New Hampshire rules, the defendant has a right to

a decision on the merits - based on the facts and the law as

developed in the case.

B. Action of Ejection and Entry

The following discussion considers each of the elements of

the regulatory due process definition at 24 C.F.R. 966.53(c).

The analysis describes how each element is satisfied in a

Superior Court ejection and entry proceeding. HUD finds that the

State law requirements for the commencement and maintenance of a

Superior Court ejection and entry proceeding contain the elements

of basic due process stated in 24 C.F.R. 966.53(c).

9

NEW HAMPSHIRE DUE PROCESS DETERMINATION

1\. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR 966.53(c)(l))

RSA 509:4 requires that \"original process in the courts

shall be summons and attachment and shall be in the form

prescribed by law.\" More specifically, RSA 509:6 also provides

that \" i n real actions and actions of ejectment, the original

writ shall be summons or attachment only.\"

Pursuant to Superior Court Rule 23:

All writs at the time of service upon the defendant

shall have attached thereto a specification setting

forth the particulars of the claim or a special

declaration, but the Court, for good cause shown, may

waive this requirement on motion of the plaintiff,

which must be filed at the time of entry of the writ

and accompanied by such specification or special

declaration and a statement that copies of the same

have been mailed or delivered to the defendant or his

attorney, but the Court, for good cause shown upon

motion also filed with the writ, may extend the time

for filing specification or special declaration.

Consequently, a tenant who is the defendant in an ejection

and entry action receives adequate notice of the grounds for

termination of the tenancy and for eviction. This rule insures

that a tenant defendant in an ejection and entry action must be

served with the specification and special declaration (see

analysis above of parallel notice requirement in a summary

proceeding under DMCR 3.7).

2\. Right to be represented by counsel

(24 CFR 966.53(c)(2))

Superior Court Rule 14, which governs appearances by

representatives of the parties, provides for the appearances of

attorneys on behalf of Superior Court litigants. The rule states

that:

n o person who is not a lawyer will be permitted to appear,

plead, prosecute or defend any action for any party, other

than himself, unless of good character and until there is on

file with the Clerk a power of attorney signed by the party

for whom he seeks to appear . . . .

10

NEW HAMPSHIRE DUE PROCESS DETERMINATION

This rule signifies that Superior Court litigants have a

right to representation by counsel.

3\. Opportunity for the tenant to refute the evidence

presented by the PHA, including the right to

confront and examine witnesses

(24 CFR 966.53(c)(3))

The New Hampshire Rules of Evidence (NHRE) govern

proceedings in the New Hampshire courts. NHRE Rule 101. The

NHRE apply therefore to an eviction by action of ejection and

entry in the New Hampshire Superior Courts.

The NHRE are intended to promote the development of the law

of evidence in order to attain the truth in a judicial

proceeding. NHRE 102. Generally, all relevant evidence is

admissible unless limited by constitutional requirements or by

statute or by rules of the courts in the state. NHRE 402.

Relevant evidence may only be excluded if probative value of the

evidence is substantially outweighed on grounds of prejudice,

confusion, or waste of time. NHRE 403.

The court shall determine the qualifications of a person to

be a witness and the admissibility of evidence based on the

court\'s determination of relevance. NHRE 104(a). The rules do

not limit the right of a party to present relevant evidence

before the jury. NHRE 104(e). Generally, every person is deemed

competent to be a witness unless specifically disqualified due to

prescribed incapacities. NHRE 601(a),(b). A witness may not

testify unless the witness has personal knowledge of the matter

(other than opinion testimony by expert witnesses). NHRE 602.

A witness may be cross-examined on any matter relevant to

issues in the case, including cross-examination on issues of

credibility. NHRE 611(b). Ordinarily, leading questions are

permitted on cross-examination of an adverse witness. NHRE

611(c). See also Superior Court Rule 67 concerning re-

examination of a witness after cross-examination, indicating

therefore that witnesses are subject to cross-examination.

A defendant-tenant may seek to refute the credibility of

plaintiff\'s witness. The credibility of a witness may be

impeached by any party. NHRE 607. The credibility of a witness

may be attacked by evidence of untruthfulness. The truthful

character of the witness may be attacked by reputation evidence.

NHRE 608(a). A witness\' credibility may also be attacked by

evidence of a prior conviction of a crime which involved

dishonesty or was punishable by death or imprisonment for a year

11

NEW HAMPSHIRE DUE PROCESS DETERMINATION

or more. NHRE 609; see also, Superior Court Rule 68. A witness\'

prior statement is also subject to examination. NHRE 613.

A party has a right to inspect writings or recorded

statements utilized in court by the adverse party. NHRE 106.

This right of inspection enables the tenant-defendant to refute

evidence presented by the PHA.

A tenant-defendant has the right to present evidence and

witnesses to refute the case presented by the PHA, subject to

reasonable judicial control as to the method of interrogating

witnesses and of presenting evidence on direct and cross-

examination. NHRE 611(a). The defendant may \"put in his whole

defense.\" Superior Court Rule 70.

The New Hampshire rules of evidence and procedure give a

defendant-tenant a full opportunity to defend against and refute

the PHA\'s evidence, including the right to confront and cross-

examine witnesses.

4\. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

(24 CFR 966.53(c)(3))

Superior Court Rule 133, which governs the form and content

of answers, allows the defendant to:

answer fully and specifically every material allegation

in the bill, libel or petition and set out his defense

to each claim asserted by the bill, libel or petition.

. . . The answer of the defendant may state as many

defenses as the defendant deems essential to his

defense.

Superior Court Rule Rule 70 states:

In all trials . . . the defendant shall, before

resting, put in his whole defense.

The New Hampshire rules do not restrict the ability of the

defendant-tenant to raise any available legal or equitable

defense which the tenant may have as a matter of substantive law.

5\. A decision on the merits (24 CFR 966.53(c)(4))

The overall structure of the trial and hearing requirements

before the New Hampshire Superior Court, as well as the Legal

Remedies clause of the New Hampshire Constitution, imply that the

12

NEW HAMPSHIRE DUE PROCESS DETERMINATION

Superior Court\'s decision is to be based on the law and the

evidence presented which bear upon the legal and factual issues

in the case. N.H. Constitution. pt.1, art. 14; RSA 500-A:18;

491:15 - 16; 519:23; 524:1-C; Superior Ct. Rules 55 and 74;

Supreme Ct. Rule 7; Riendeau v. Municipal Court of Milford,

104 N.H. 33, 177 A.2d 396 (1962).

In a non-jury case, requests for findings and memoranda of

law are generally submitted by the close of the evidence.

Superior Court Rule 72. Such submission expresses the views of

the parties on the facts and the law, so that the court may

render a decision on the merits. RSA 491:15 provides:

The court or justice trying causes under RSA 491:13 and

491:14 shall, if either party requests it, give his

decision in writing, stating the facts found and his

rulings of law, which shall be filed and recorded.

See Howard v. Howard, 469 A.2d 1318, 1320 (N.H. 1983) (\". . . this

court has repeatedly recognized the need for basic findings

supported by the record . . .\"), and Cote v. Elden, 403 A.2d 419,

420 (1979).

In a jury case the facts are determined by the jury pursuant

to instruction of the court. Superior Court Rule 72. In this

manner the jury determination is also based upon the facts and

the law.

Whether the facts are tried to a jury or to the court, State

law requires that a determination be issued upon the merits, upon

the facts and the law in the case.

V. Conclusion.

New Hampshire law governing a Chapter 540 summary proceeding

in the New Hampshire District Court or Municipal Court requires

that the tenant have the opportunity for a pre-eviction hearing

in court which provides the basic elements of basic due process

as defined in 24 CFR 966.53(c) of the HUD regulations.

New Hampshire law governing a Superior Court civil eviction

action for ejection and entry also requires that the tenant have

the opportunity for a pre-eviction hearing in court which

contains the elements of basic due process as defined in 24 CFR

966.53(c) of the HUD regulations.

By virtue of HUD\'s due process determination under section

6(k) of the U.S. Housing Act of l937, a PHA in New Hampshire may

13

NEW HAMPSHIRE DUE PROCESS DETERMINATION

evict a public housing tenant pursuant to a District or Municipal

court decision in a Chapter 540 summary proceeding, or in a

Superior Court civil action of ejection and entry under c. 491:7

of the Revised Statutes Annotated, for any criminal activity that

threatens the health, safety, or right to peaceful enjoyment of

the premises of other tenants or employees of the PHA or any drug

related criminal activity on or near the premises. The PHA is

not required to first afford the tenant the opportunity for an

administrative hearing on the eviction.

14