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- courts/supreme

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9 th Circuit Court

– Manchester District Division

N o. 2021

- 0258

MELISSA NATAL

v.

GMPM COMPANY & a

.

Submitted : February 17, 2022

Opinion Issued: April 1, 2022

603 Legal Aid

, of Concord ( Marta A. Hurgin on the brief), for the plaintiff.

Keith Duperron

, non

- lawyer representative appearing by approval of the

Supreme Court under Rule 33(2) , on the brief, for the defendant

.

DONOVAN , J. The defendant s

, GMPM Company and 479 Maple Street,

LL C, appeal an order of the Circuit Court ( Lyons

, J .) granting the petition for

wrongful evictio n filed by the plaintiff, Melissa Natal

. 1 On appeal, the

defendant argues that the circuit court erred by determining that its property

was not a “shared facility” as defined by RSA 540

- B:1 (2021). Specifically, the

defendant argues that RSA 540

- B:1 does not require that an owner occupy the

premise s, but, rather, only that an owner have access to the common areas for

1 For the purposes of this appeal, this opinion will refer to GMPM Company and 479 Maple Street,

LLC as a singular defendant.2

the purposes of cleaning , maintaining, and monitoring the premises. We

conclude that , for property to qualify as a shared facility under RSA 540

- B:1,

the owner must reside at the premises with the occupants

. Accordingly, we

affirm.

The following facts are supported by the record or are otherwise

undisputed. The defendant own s a building located on a parcel of property in

Manches ter , which it rent s for residential purposes (the property) . The

property is restricted residential property under RSA 540:1

- a, II (2021)

. In

December 2020, the defendant leased a room in the building to the plaintiff

. The plaintiff

’s lease provided : “A s an occupant at this dwelling you will be living

in common with other occupants in a single dwelling unit as a s hared facility

per NH RSA 540

- B . . . . ” The lease further stated that “ [ t ] he owner’s access

will include the cleaning, maintenance, and showi ng of . . . [the] common areas

in the dwelling,” including the bathroom and the kitche n

.

On May 7, 2021, the police removed the plaintiff from the property at the

defendant’s request. In requesting the removal, the defendant purported to act

pursuant t o RSA chapter 540

- B, which governs rentals of shared facilities for

residential purposes. See RSA 540

- B:3, III (2021) (providing that “the owner of

a shared facility may terminate any tenancy for . . . material [ breach ] of any

rental agreement” and requir ing “[a] written 72

- hour notice of termination” in

such cases); RSA 540

- B:8 (2021) (providing that “the owner of a shared facility

may take possession of the separated areas used by the occupant at the end of

the notice period” and authorizing the owner to “request law enforcement

intervention as necessary”).

Thereafter, the plaintiff filed a n RSA chapter 540

- A petition with the

circuit court. The plaintiff alleged , among other things, that the property was

not a shared facility and thus RSA chapter 540

- B did not provide a basis for

the defendant to remove her from the property

. The circuit court granted the

plaintiff a temporary order allow ing her to return to the property and scheduled

a final hearing for the following week . At the final hearing, a rep resentative for

the defendant testified that the defendant does not occupy or live at the

property, but visits the property to clean and conduct maintenance.

Following the hearing, the circuit court issued an order concluding that

the defendant wrongful ly evicted the plaintiff. The circuit court found that the

“testimony was clear” that the defendant “does not occupy the premises but

that [ the defendant ’s agent] . . . visit[s] the property to clean and for

maintenance.” Based upon that finding, the cou rt determined that the

property was not a shared facility, and, therefore, RSA chapter 540

- B did not

provide a basis for the defendant to remove the plaintiff from the property. The

court further determined that the plaintiff was “a normal tenant” under R SA

chapter 540, which provides protections for tenants of residential property.

The court concluded that, by removing the plaintiff from the property without3

following the eviction procedures set forth in RSA chapter 54 0, the defendant

violated RSA 540:2, II (2021) and RSA 540

- A:3, II (2021). Accordingly, the

court awarded the plaintiff $1,000 in damages. This appeal followed.

On appeal, the defendant argues that the circuit court misconstrued RSA

540

- B:1 by concluding tha t the prop erty is not a shared facility. The

interpretation of a statute presents a question of law, which we review de novo

. See State v. Pinault

, 168 N.H. 28, 31 (2015). In matters of statutory

interpretation, the intent of the legislature is expressed in the w ords of the

statute considered as a whole. See id

. We first look to the language of the

statute itself, and, if possible, construe that language according to its plain and

ordinary meaning. Id

. Further, we interpret legislative intent from the statute

as written and will not consider what the legislature might have said or add

language the legislature did not see fit to include. Id

. Finally, we interpret

statutes in the context of the overall statutory scheme and not in isolation. Id

.

The defendant contends that the property was a “shared facility,” and,

therefore, RSA chapter 540

- B allowed the defendant to remove the plaintiff

from the property after the 72

- hour notice period. We note that RSA chapter

540

- B provides for an eviction proces s separate from the judicial eviction

process outlined in RSA chapter 540. Under RSA 540

- B :3

, III, the owner of a

shared facility may term inate any tenancy for ma terial breach of any rental

agreement. RSA 540

- B :3

, III. In such cases, the owner need only provide a

written 72

- hour notice of eviction

. Id

. “The owner or agent of the owner may

take possession ” of the property “ a t the end of the notice period. ” RSA 540

-

B:8. The owner may request the assistance of law enforcement if necessary.

Id

.

The plaintiff, on the other hand, argues that the property was not a

sh ared facility

. In her view, the circuit court correctly concluded that she was

“a normal tenant” entitled to the protections for tenants set forth in RSA

chapters 540 and 540

- A. Because R SA chapter 540 is “part of the same overall

statutory scheme” as RSA chapter 540

- A, we examine the definitions of

“tenant” set forth in both chapters. A nderson v. Robitaille

, 172 N.H. 20, 23

(2019). RSA 540

- A:1, II defines “tenant” as “a person to whom a landlord rents

or leases residential premises.” RSA 540

- A:1, II (2021). RSA 540:1

- a, IV

provides that “[t]he term ‘tenant’ or ‘tenancy’ shall not include occupants” of

certain premises and that the provisions of RSA chapter 540 “shall not apply”

to thos e certain premises. RSA 540:1

- a, IV. As relevant here, RSA 540:1

- a,

IV(e) specifically excludes the occupants of “[r]esidential real estate under RSA

540

- B” from the definition of “tenant.”

Accordingly, to resolve the defendant’s appeal, we must first determine

whether the property was a “shared facility” under RSA 540

- B:1.4

RSA 540

- B:1, I

, provides :

A “shared facility” means real property rented for residential purposes

which has separate sleeping areas for each occupant and in which each

occupant has access to and shares with the owner of the facility one or

more significant portions of the facility in common

, such as kitchen,

dining area, bathroom, or bathing area, for which the occupant has no

rented right of sole personal use.

RSA 540

- B:1, I (emphas e s added).

The parties dispute the meaning of the language in RSA 540

- B:1

. The

defendant argues that nothing in the provision’s language requires that the

ow ner “sleep in or occupy” the premises for it to be considered a shared facility.

Instead, the defendant maintains that access to the common areas for

purposes of cleaning

, maintaining, and monitoring the premises fulfil l s the

requirement that the owner “s hares

. . . significant portions of the facility in

common ” with the occupants. The plaintiff counters that the term “shares

, ” as

used in RSA 540

- B:1, requires that the owner live in and use the facility in

common with the occupants

.

Because the statute does not define the meaning of the terms within RSA

540

- B:1

, we look to the dictionary for guidance as to the ordinary meaning of

those terms

. See RSA 21:2; State v. Ruff

, 155 N.H. 536, 539 (2007). The verb

“share ” is defined as “to partake of, use, exp erience, or enjoy with others : have

a portion of <~ a room> .” Webster’s Third New International Dictionary 2087

(unabridged ed. 2002). Moreover

, the term “ in common” is defined as “ that is

shared, experienced, or possessed together or equally. ” Id

. at 458

. In light of

these definitions

, we conclude that the plain meaning of RSA 540

- B:1 requires

use and enjoyment by both the owner and the occupant of “one or more significant portions of the facility in common .” RSA 540

- B:1

, I (emphasis

added). The inclusion of the term “in common” demonstrates that the owner

must use and enjoy the common areas of the premises in the same manner as

the occupant s

— namely, “for residential purposes.” Id

. Because an owner

cannot use and enjoy the facilities in the same manner as the occupants

without residing at the property, we further conclude that the owner must

reside at the premises to qualify as a shared facility under RSA 540

- B :1, I

.

Accordingly, we conclude that the term “s hared facility” as defined by

RSA 540

- B:1 mandates that the owner of the leased property live in

, and share

the use and enjoyment of one or more significant portions of

, the facility in

common with the occupants. Here, the circuit court found that the defendant

“does not occupy the premises but that [ the defendant ’s agent ] does visit the

property to clean and for maintenance.” Therefore, the record supports a

finding that the defendant did not use or enjoy the common areas of the5

premises in the same manner as the occupants. Accordingly, the circuit court

di d not err by concluding that the property was not a “shared facility” as

defined by RSA 540

- B :1

.

In light of our holding that the defendant’s property was not a shared

facility, we conclude the circuit co urt did not err by holding that the plaintiff

was “a normal tenant” entitled to the protections set forth in RSA chapters 540

and 540

- A. There is no dispute that the plaintiff rented a room from the

defendant

. See RSA 540

- A:1, II. Moreover, the defendant has not developed an

argument that any of the other exceptions to the definition of “tenancy” set

forth in RSA 540:1

- a, IV applied here. See RSA 540:1

- a, IV(a)

- (h). Therefore,

we conclude that the plaintiff was a “tenant” pursuant to RSA chapter 540

, and

we affirm the circuit court’s order on that basis. See RSA 540:1

- a, IV; RSA

540

- A:1, II.

Finally

, the defendant draws our attention to the plaintiff’s signed lease,

wh ich identifies the property as “ a shared facility per NH RSA 540

- B. ”

However, the defendant’s reliance upon this language is unavailing

. RS A

540:28 (2021) provides that “[n] o lease or rental agreement

. . . shall contain

any provision by which a tenant waives any of his rights under this chapt er,

and any such waiver shall be null and void .” RSA 540:28

. By inaccurately

classifying the property as a shared facility, the lease deprive d th e plaintiff of

her rights as a tena nt, specifically her right to the protections of the eviction

process set forth in RSA chapter 540

. Accordingly, we conclude that the

provision of the parties’ lease identifying the property as a shared facility is

“ null and void. ” RSA 540:28.

For the foregoing reasons, we affirm the circuit court’s order

. Any issues

that the defendant raised in the notice of appeal, but did not brief, are deemed

waived. State v. Bazinet

, 170 N.H. 680, 688 (2018).

Affirmed

.

M AC DONALD

, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,

concurred.