Lally v. Flieder, 986 A.2d 652 (N.H. 2009)
Hey, let’s watch HGTV and get some ideas for the apartment! It’s not like we have to pay for it or anything.
Anyone who has ever been a landlord will think the New Hampshire Supreme Court may have lost its mind. Those who like TV and broadband access a lot may think otherwise.
Here’s the story.
A tenant told his landlord that he wasn’t going to pay rent anymore. So the landlord sued for unpaid rent and to get possession of the apartment back. Six days later the landlord disconnected the cable service. Turns out that was a no-no.
The nonpaying tenant countersued the landlord under a New Hampshire law that provides:
No landlord shall willfully cause, directly or indirectly, the interruption or termination of any utility service being supplied to the tenant including, but not limited to water, heat, light, electricity, gas, telephone, sewerage, elevator or refrigeration, whether or not the utility service is under the control of the landlord, except for such temporary interruption as may be necessary while actual repairs are in process or during temporary emergencies.
The trial court ruled in favor of the landlord, finding that cable service was not a protected utility and therefore by disconnecting the service, the landlord had not engaged in unlawful self help.
The tenant sought review with the New Hampshire Supreme Court. On appeal, the court reversed, finding cable service critical to the notion of “habitability.”
The court looked to the language of the statute and found cable service to be like the utilities specifically mentioned. The court observed that the specified utilities “all pertain to the habitability of a dwelling or a person’s well being.”
Right. In the middle of a brutal New Hampshire blizzard, nothing will keep you warm like a hearty dose of the Kardashians. And who doesn’t think the right to surf for porn is every bit as essential to a happy life as not having raw sewage backing up in your kitchen sink.
Apparently the members of the court really like watching TV and surfing the web using a broadband connection:
Modern cable television also pertains to the habitability of a dwelling and a person’s wellbeing. Indeed, many people access essential telephone service, the Internet, news information and entertainment by way of cable. Thus, the unlawful termination of a tenant’s cable television service would be a means of accomplishing a self-help eviction-the very evil the legislature meant to deter.
For these reasons, the court found that the landlord broke the law when it discontinued the nonpaying tenant’s cable service.
*Until the court kicks your ass to the curb.
Apartment photo courtesy Flickr user Jordan Roher under this Creative Commons license.
November 3, 2009
I’m not a landlord / tenant attorney, but this seems 100% correct to me.
To get possession and evict the tenant, you have to follow the statute. There is no longer self-help remedies (in most states at least I believe).
I don’t know if it makes sense to put this with the warranty of habitability though. Clearly, a place isn’t uninhabitable just because your cable doesn’t work. Hopefully, this case isn’t saying that. If the heater doesn’t work, the landlord has problems. If the cable lines were accidentally cut, I don’t think the landlord is in breech of the duty.
But in this case, the landlord purposefully turned off the cable. I would say this is possibly more in line with a partial actual eviction (and not a breach of the warranty of habitability). If I remember correctly, after a partial eviction, the tenant can stay on the property and not pay any rent.
Plus, there is the statute and cable is clearly a utility.
Aside: Am I the only one who finds Captchas impossible to read?
November 3, 2009
Tony – I’m not a landlord/tenant lawyer either. My reading of this case is that intentionally cutting the cable off would indeed be a breach of the warranty of habitability, and moreover would be verboten because it would affect the wellbeing of the tenant.
I’m not sure I’m as comfortable as you are to say “cable is clearly a utility.” If you look at the things listed in the statute — e.g., water, heat, light, electricity, gas, telephone, sewerage, elevator or refrigeration — their absence could cause serious risk to a person’s health or safety. I just don’t see the same with cable — it’s purposes are much more nonessential.
November 3, 2009
I guess breach of the warranty of habitability would make sense, since partial eviction is possibly only used for physical space (and not utilities).
I admit that cable is not an essential utility, but I’d say it is a utility nonetheless. I’m not so sure a telephone is essential either.
I read the statute as covering all utilities. But I think attorneys (and legislators) use of “including but not limited to” is often poorly thought out. Do this cover all utilities or only those like the ones specifically enumerated. Reading the sentence literally, I’d say it covers all of them. Though I guess you could invoke one of the Latin statutory interpretation phrases and come out to the opposite conclusion.
I’m guessing there might be case law (outside of landlord / tenant) discussing cable as (or as not) being a public utility or what a utility is (service to the public, subject to government regulation – just guessing here).
Sounds to me like the court got the right result (i.e., you have to evict the tenant using the courts; don’t mess with him yourself), but possibly with some odd reasoning.
November 4, 2009
For an increasing number of people who have switched to VoIP service and terminated their landline telephone connection, the cable connection IS their telephone service. If a telephone is essential–which the New Hampshire law says, and with good reason, particularly if you need the police or an ambulance–then the cable is essential also. Even if the Kardashians aren’t on.
December 3, 2009
I agree with Kent on the grounds that the original intent of the statute was to provide for the prohibition of the landlord interfering with essential utilities. The language of the statute is sufficiently vague to allow courts to interpret which utilities meet this test.
The data (whether voice, digital data, or video broadcast) brought over coaxial copper cable is no different than the data brought over by unshielded twisted pair wire (traditional telephone service media). If the service for the traditional media is explicitly protected, and the use of the new media is analogous to it (and in this case it clearly is), it would be wrong of the courts to rule otherwise, simply based on the letter of the statute.
As far as the issue of warranty of habitability, it is a moot point that the court decided to discuss (possibly as an afterthought?). Determining whether that (implied) warranty is breached is entirely up to the courts. From Wikipedia (and it sounds accurate), an implied warranty of habitability is a warranty implied by law that by leasing a residential property, the lessor is promising that it is suitable to be lived in, and will remain so for the duration of the lease. Suitable means fit for a purpose. The only physical property necessary for a residence to be deemed “habitable,” (fit for the purpose of living in or on) is that it occupies enough physical space for a tenant to physically inhabit it.
Most people (and the court of New Hampshire) would agree that light and heat are necessary conditions of “habitability.” My friend Mark however inhabited a large wooden box in the summer of 2007 for almost a month… it was physically habitable, if not then he could not have inhabited it (and he did, I saw it!). Even if the above statute did not exist, the New Hampshire court was within its right of determining whether cable service is a necessary component of residential habitability (although I don’t necessarily agree if alternative telephone service were provided to the lessee).
However it is moot because the statute clearly governs this case. Not being a lawyer (not yet even a law student, but doing quite well on practice LSATs), I’m only going off of what I learned in undergrad business law. In that class, the professor (a lawyer and CPA) basically told us as a rule of thumb that courts will govern by statutes if they exist and are applicable, and will only look to former case law when the above conditions are not sufficiently met. If this assumption of my argument is incorrect, then the above about the warranty being moot would be invalid, but either way the statute still wins.
December 3, 2009
I made an error in the last sentance of my comment above. It was supposed to read “…either way the statute is still applicable.” And the meaning of what I wrote was intended to convey that by both standards (statute and case law) that the court was within its right for this decision.