DerryNews.com, Derry, New Hampshire

January 31, 2013

Landlords must ensure heat is available

About the Law
Andrew Myers

---- — I’ve been having problems with the heat in my apartment. Heat is included in my lease and this winter, the heat has gone off for four and five days in a row.

The landlord and the management company do not respond. What can we do?

Everyone needs heat, especially when extreme cold weather hits. The law in most jurisdictions demands that such basic needs be met.

In New Hampshire, the law states: “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 ... heat ..., whether or not the utility service is under the control of the landlord.” That’s RSA 540-A:3, I.

So, in a case in which there was no heat in a tenant’s master bedroom from March 23, 2011, until April 14 after city inspectors in Rochester got involved and a case was filed, a court ordered $18,000 in damages. The award was based on the landlord’s willful, intentional failure to repair heating units after notice.

That case bounced up to the N.H. Supreme Court, which upheld the basic order, but sent it back down to the trial court for recalculation of the $1,000 per day violations because the order may have erroneously included some days before the initial lower court had issued an order to get the heat fixed.

The bottom line in Randall v. Abounaja, decided Jan. 11, 2013, in the N.H. Supreme Court is that landlords who ignore calls from tenants and a municipal inspection department face daily penalties for failing to provide heat.

Objections have been filed in my bankruptcy case, claiming that I left out some things including a bank account in my bankruptcy petition.

I forgot things while I was filling out the petition and the problem is that I have ADHD. Isn’t my health condition justification for forgetting things?

Attention disorders provide no legal defense for incorrect bankruptcy paperwork, which is filed in federal court. Don’t write to me telling me this answer is insensitive, there’s an actual case on this.

In the case, the person filed a bankruptcy petition, failing to disclose various bank accounts including one opened in their father’s name not long before the bankruptcy filing. Brought to the debtor’s attention, the argument was that the omissions directly resulted from the medical condition of ADHD and were not an intentional concealment of assets.

The court acknowledged that the person may suffer from ADHD, but held that it was not convinced that the condition prevented his ability to understand when signing the petition under penalties of perjury.

In re: McCarthy, decided Aug. 27, 2012, in the U.S. Bankruptcy Court for the District of Massachusetts, denied the debtor a discharge, leaving the filer with a debt of more than half a million dollars that would have been discharged had the case been filed correctly.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.