CARES Act | Taxation Considerations
COVID-19 Public Health Emergency Declaration & Authorized Waivers
The ongoing public health emergency caused by COVID-19 (coronavirus) has caused New Hampshire Governor Chris Sununu to issue executive orders that significantly affect the rights of landlords, tenants, borrowers, lenders, and utility companies in New Hampshire.
Temporary Halt To Evictions And Foreclosures
Those involved in the real estate rental and finance markets must keep abreast of a rapidly-changing legal landscape. Effective March 17, 2020, for the duration of New Hampshire’s COVID-19 state of emergency declared in Executive Order 2020-04, landlords are prohibited from initiating eviction proceedings against tenants, and courts may not issue eviction orders in ongoing eviction proceedings except for lease violations that result in (1) substantial damage to the premises by renters’ household members or (2) a substantial impact on the health or safety of other persons residing on the premises. Eviction proceedings in cases of renters’ abandonment of a rental may proceed. For now, lenders are also barred from instituting foreclosure proceedings against borrowers.
Precisely what constitutes “substantial damage” to premises or a “substantial impact” on health and safety of others is not defined. Landlords must proceed with particular caution in any legal action against a tenant, as violation of the eviction moratorium caries harsh penalties. A tenant may be awarded the greater of actual damages or $1,000. For “willful or knowing” violations of the order, the amount of damages is doubled or tripled. Tenants may also recover reasonable attorney’s fees.
Although landlords and lenders may not evict or foreclose for non-payment, their rights to rent and loan payments remain intact. Tenants and borrowers in arrears on their payment obligations at the end of the New Hampshire COVID-19 state of emergency may be evicted or have foreclosure proceedings instituted against them.
Temporary Halt To Utility Shut-Offs
The Governor has also banned certain utility shut-offs for non-payment. Effective March 17, 2020, for the duration of the COVID-19 state of emergency, providers of electric, gas, water, telephone, cable, VOIP, and deliverable fuels are prohibited from discontinuing customers’ service for non-payment. Utility providers must thereafter give customers a “reasonable payment arrangement over no less than a six-month period” to pay any utility bill arrearages after the state of emergency ends, and may not charge customers fees for late payments. There is no distinction between residential and commercial utility service in the order.
The utility shut-off proscription leaves unanswered the question of whether a repayment plan could be considered unreasonable even if longer than six months in duration. Utility providers therefore might be faced with customers insisting they are entitled to a reasonable payback period in excess of six months. Unlike the eviction/foreclosure moratorium, the order regarding utilities does not define the potential penalties or enforcement mechanisms for a claimed violation.
These and other executive orders, statutes, and regulations are rapidly evolving. Our attorneys are continually monitoring all COVID-19-related developments that affect individuals’ and businesses’ rights. Our Litigation Team would welcome the opportunity to discuss these topics as they relate to you or your business.
