Mountain View Park, LLC v. Gerald Robson, Jr., 168 N.H. 117 (2015)

Citation: Mountain View Park, LLC v. Gerald Robson, Jr., 168 N.H. 117 (2015)
Parent Document: Mountain View Park, LLC v. Gerald Robson, Jr., 168 N.H. 117 (2015)
Jurisdiction: New Hampshire (state)
Effective Date: 2015-08-11
Original Source: https://www.courtlistener.com/opinion/2826159/mountain-view-park-llc-v-gerald... ↗

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Third, the majority’s interpretation of the statute fails to take account of the fact that money is fungible. Consider the following simple example. A lease requires the tenant to pay rent of $500 per month. When he is in default in the amount of $1,000 (two months’ rent), the landlord and tenant enter into an agreement that requires the tenant to retire the arrearage at the rate of $200 per month for the next five months while also timely making all ongoing rent payments. After complying with the agreement for two months, the tenant is able to pay only $600 in the third month. Could the landlord obtain a writ of possession simply by asking the circuit court to issue it, or must he initiate an entirely new eviction proceeding? If the landlord requests issuance of the writ, the tenant will naturally claim that he has fully paid the amount of the arrearage, that the shortfall therefore is attributable to ongoing (future) rent, and that no writ of possession may issue absent an entirely new eviction proceeding. The landlord, on the other hand, will claim that the shortfall should be attributed to the arrearage, thus allowing for issuance of the writ without a new proceeding. How would the court resolve this issue? Under the majority’s construction of the statute, the answer is anybody’s guess, whereas under the construction that I assert to be correct the answer is clear — the tenant has breached the agreement and the writ of possession may be issued at the landlord’s request and without the need to commence a new eviction proceeding.

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