New Hampshire Tenant Appearance, Answer, and Counterclaim (Eviction Defense)

NEW HAMPSHIRE TENANT APPEARANCE, ANSWER, AND COUNTERCLAIM (EVICTION DEFENSE)

TABLE OF CONTENTS

1. Caption
2. Appearance (Form NHJB Equivalent)
3. Answer to Landlord and Tenant Writ
4. Affirmative Defenses
5. Tenant Counterclaims
6. Demand for Discovery
7. Demand for Hearing / Trial
8. Tenant Right to Cure (Nonpayment Cases)
9. Prayer for Relief
10. Verification
11. Certificate of Service
12. Tenant Pre-Filing Checklist and Evidence Inventory
13. New Hampshire Practice Notes
14. Sources and References

1. CAPTION

STATE OF NEW HAMPSHIRE

[COUNTY NAME] COUNTY

CIRCUIT COURT — DISTRICT DIVISION

[CITY/TOWN] DISTRICT

Docket No. [________________________________]

TENANT'S APPEARANCE, ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS

Pursuant to RSA 540:13 and District Division Rules 5.1–5.12

2. APPEARANCE (FORM NHJB EQUIVALENT)

The undersigned Defendant [TENANT NAME] hereby enters an Appearance in the above-captioned possessory action and INTENDS TO CONTEST the eviction.

☐ Defendant appears pro se (without an attorney).
☐ Defendant is represented by counsel: [ATTORNEY NAME, NH BAR NO.], [FIRM], [ADDRESS], [PHONE], [EMAIL].

Defendant requests the following accommodations:

☐ Interpreter for [LANGUAGE].
☐ ADA accommodation: [____________________________________________].
☐ Remote (video / telephonic) appearance, if available under court rules.

______________________________________
[TENANT SIGNATURE]
[PRINTED NAME]

3. ANSWER TO LANDLORD AND TENANT WRIT

For an Answer to the Landlord and Tenant Writ filed by Plaintiff, Defendant responds to each numbered paragraph as follows. Where a paragraph contains multiple allegations, Defendant responds to each:

3.1 Tenancy. Defendant admits that Defendant occupies the Premises pursuant to a [written lease / oral month-to-month] tenancy commencing [__/__/____], at a rent of $[______] per [month/week]. Defendant denies any allegation inconsistent with the foregoing.

3.2 Property classification. Defendant denies Plaintiff's classification of the Premises as non-restricted property and avers that the Premises constitute restricted property under RSA 540:1-a, requiring Plaintiff to plead and prove a good-cause ground under RSA 540:2, II.

3.3 Pre-litigation notices. Defendant denies that the Notice to Quit and (in nonpayment cases) Demand for Rent comply with RSA 540:3 and Horton v. Clemens, 173 N.H. 480 (2020). Specifically:

[List defects: (a) failure to state reason with specificity; (b) wrong notice period; (c) defective service; (d) missing tenant rights notice; (e) Demand for Rent omitted; (f) wrong amount demanded; (g) signature defect; (h) etc.]

3.4 Statutory ground. Defendant denies that Plaintiff has established the asserted statutory ground for termination. Specifically:

[Respond to each ground asserted: e.g., "Defendant did not fail to pay rent; rent was tendered and refused" or "the alleged damage is ordinary wear and tear" or "the asserted owner-occupancy is pretextual."]

3.5 Damages. Defendant denies Plaintiff's calculation of unpaid rent and lawful charges and avers that any apparent arrearage is offset by:

☐ Habitability damages under Kline v. Burns;
☐ Self-help damages under RSA 540-A:4 (treble);
☐ Security-deposit double damages under RSA 540-A:7;
☐ Other setoff: [____________________________________________].

3.6 General denial. Defendant denies each and every allegation of the Writ not specifically admitted herein and demands strict proof at trial.

4. AFFIRMATIVE DEFENSES

Defendant asserts the following affirmative defenses (check all applicable; provide factual support for each):

A. ☐ DEFECTIVE NOTICE (RSA 540:3; Horton v. Clemens)

The Notice to Quit and/or Demand for Rent fail to comply with RSA 540:3 and the form-fidelity standard of Horton v. Clemens, 173 N.H. 480 (2020), in that:

[Specify: (a) the notice does not state the reason for eviction with specificity; (b) the notice omits required content from Form NHJB-2070-DE; (c) the notice was served improperly; (d) the notice period is shorter than required; (e) the Demand for Rent was not served (nonpayment cases); (f) other: __________.]

B. ☐ FAILURE TO PLEAD/PROVE GOOD CAUSE (RSA 540:2, II)

The Premises are restricted property under RSA 540:1-a. Plaintiff has not pleaded a substantive good-cause ground recognized by RSA 540:2, II, OR the asserted ground is pretextual. Lapse of lease term alone is insufficient (AIMCO Properties, LLC v. Dziewisz, 152 N.H. 587 (2005)).

C. ☐ BREACH OF IMPLIED WARRANTY OF HABITABILITY (Kline v. Burns)

The Premises are not habitable in violation of the common-law implied warranty of habitability recognized in Kline v. Burns, 111 N.H. 87 (1971). Conditions include:

Defendant attaches as Exhibit A photographs; Exhibit B code-enforcement reports; Exhibit C written notices to landlord; Exhibit D repair estimates.

D. ☐ RETALIATORY EVICTION (RSA 540:13-a)

Plaintiff's possessory action was instituted within six (6) months of Defendant's protected activity, creating a rebuttable presumption of retaliation. Specifically:

Defendant does not owe one (1) week or more of rent (or, if owed, the amount is offset by setoffs identified in this Answer).

Damages: Up to three (3) months' rent plus attorney's fees and costs under RSA 540:13-a, V.

E. ☐ DISCRIMINATION (RSA 354-A:10; 42 U.S.C. §§ 3601 et seq.)

The eviction is based on Defendant's membership in a protected class, specifically: ☐ race ☐ color ☐ religion ☐ marital status ☐ familial status ☐ age ☐ sex ☐ sexual orientation ☐ gender identity ☐ national origin ☐ ancestry ☐ disability ☐ source of lawful income.

Supporting facts: [____________________________________________].

F. ☐ DOMESTIC-VIOLENCE SAFE HARBOR (RSA 540:11-b)

Defendant or a member of Defendant's household is a victim of domestic violence, sexual assault, or stalking, and the eviction is based solely on victim status. Verification (protective order / police report / qualified-provider statement / self-certification) attached as Exhibit E, filed under seal where appropriate.

G. ☐ SELF-HELP / PROHIBITED PRACTICES (RSA 540-A:3)

Plaintiff has engaged in prohibited self-help, specifically:

☐ Lockout (date: [__/__/____]);
☐ Utility shutoff (date and utility: ______);
☐ Removal of Defendant's belongings (date: [__/__/____]);
☐ Unauthorized entry (date(s): ______);
☐ Refused payment in non-electronic form (RSA 540-A:3, VIII);
☐ Failed to investigate pest infestation within 7 days (RSA 540-A:3);
☐ Other: [____________________________________________].

H. ☐ SECURITY DEPOSIT VIOLATION (RSA 540-A:6, 7)

Plaintiff has wrongfully retained, commingled, or failed to account for Defendant's security deposit of $[______], paid on [__/__/____]. Plaintiff has not provided the receipt or interest accounting required by RSA 540-A. Defendant is entitled to double damages plus attorney's fees under RSA 540-A:7.

I. ☐ PAYMENT / ACCORD AND SATISFACTION

Defendant has paid the rent demanded, in full or in part, on the following dates:

OR, the rent demanded is not in fact due because [____________________].

J. ☐ LEAD-PAINT DISCLOSURE FAILURE (RSA 130-A; 24 C.F.R. Part 35)

The Premises were constructed before 1978; Plaintiff failed to provide the federal lead-based-paint disclosure / pamphlet at lease inception. This is grounds for civil penalty and supports denial of relief.

K. ☐ DEFECTIVE SERVICE OF WRIT (RSA 540:14; District Division Rules)

The Landlord and Tenant Writ was not properly served on Defendant; specifically: [____________________].

L. ☐ WAIVER / ESTOPPEL

Plaintiff's acceptance of rent or other lawful charges after the Notice to Quit expired waived the right to terminate the tenancy on the asserted ground.

M. ☐ ACCEPTANCE OF PARTIAL PERFORMANCE / RELATIONSHIP CONTINUED

Plaintiff has continued to deal with Defendant as a tenant after the alleged ground arose, including: [accepting rent / providing services / acknowledging tenancy in writing], thereby continuing the tenancy.

N. ☐ OTHER DEFENSES

[____________________________________________________________].

5. TENANT COUNTERCLAIMS

Pursuant to RSA 540:13, IV and District Division Rules, Defendant asserts the following counterclaims, with money damages capped at $1,500 in this action; any excess is reserved for separate action.

Counterclaim I — Breach of Warranty of Habitability (Kline v. Burns)

5.I.1 Plaintiff has breached the common-law implied warranty of habitability by [list defects].

5.I.2 Defendant is entitled to (a) abatement of rent for the period of breach, (b) damages for personal-property loss caused by uninhabitable conditions, (c) reasonable cost of self-help repair where notice was given and Plaintiff failed to act, and (d) consequential damages.

Counterclaim II — RSA 540-A Prohibited Practices (Treble Damages)

5.II.1 Plaintiff violated RSA 540-A:3 by [specify lockout / utility shutoff / removal of belongings / unauthorized entry / etc.].

5.II.2 Under RSA 540-A:4, Defendant is entitled to treble damages (no less than $1,000 per violation) plus reasonable attorney's fees and costs, and to injunctive relief.

Counterclaim III — Wrongful Retention of Security Deposit (RSA 540-A:7)

5.III.1 Plaintiff has wrongfully retained, commingled, or failed to return Defendant's security deposit of $[______].

5.III.2 Under RSA 540-A:7, Defendant is entitled to double damages plus reasonable attorney's fees and costs.

Counterclaim IV — Retaliatory Eviction (RSA 540:13-a, V)

5.IV.1 Plaintiff initiated this possessory action within six (6) months of Defendant's protected activity, in violation of RSA 540:13-a.

5.IV.2 Defendant is entitled to damages of up to three (3) months' rent plus reasonable attorney's fees and costs, and to dismissal of the possessory action.

Counterclaim V — Discrimination (RSA 354-A; 42 U.S.C. §§ 3601 et seq.)

5.V.1 Plaintiff's eviction is based on Defendant's membership in a protected class, in violation of RSA 354-A and the federal Fair Housing Act.

5.V.2 Defendant reserves the right to file a complaint with the New Hampshire Human Rights Commission and/or HUD and to pursue damages, injunctive relief, and attorney's fees.

Counterclaim VI — Federal Lead-Paint Disclosure Failure (24 C.F.R. Part 35)

5.VI.1 Plaintiff failed to provide the federal lead-paint disclosure for housing constructed before 1978.

5.VI.2 Defendant is entitled to civil penalties and treble damages under 42 U.S.C. § 4852d(b)(3).

Counterclaim VII — Other

5.VII.1 [____________________________________________________________].

6. DEMAND FOR DISCOVERY

Pursuant to District Division Rules, Defendant demands the following discovery from Plaintiff to be produced not later than the date of the hearing:

1. Lease and lease addenda (all written agreements between the parties).
2. Rent ledger / payment history for the entire tenancy.
3. All written communications between Plaintiff and Defendant during the past twelve (12) months.
4. Copies of all notices served on Defendant during the tenancy, with proofs of service.
5. All complaints and reports received by Plaintiff concerning the Premises (habitability, neighbor disputes, etc.).
6. Code-enforcement correspondence with any municipal agency concerning the Premises.
7. Lead-paint disclosure documentation (if Premises constructed before 1978).
8. Security-deposit records: receipt, account location, interest accrual, itemized deductions.
9. Photographs and inspection reports of the Premises within the past twelve (12) months.
10. Repair invoices and estimates for damages alleged in the Writ.
11. Documentation supporting the asserted good-cause ground (e.g., purchase-and-sale agreement; rehabilitation permits; owner-occupancy plans).

7. DEMAND FOR HEARING / TRIAL

Defendant demands a hearing on the merits and reserves the right to present testimony, documentary evidence, and witnesses. If trial by jury is available in this action, Defendant demands a jury (note: NH possessory actions in District Division are generally bench-tried; jury trial is preserved on appeal to Superior Court under RSA 540:25).

8. TENANT RIGHT TO CURE (NONPAYMENT CASES)

In a nonpayment case, Defendant EXPRESSLY RESERVES the right under RSA 540:9 to dismiss this action by paying, before the hearing, the following sums in lawful tender:

Defendant has used this right of cure [__] times in the preceding twelve (12) months (limit: three).

9. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court enter Judgment as follows:

A. DENY Plaintiff's request for possession and DISMISS the Landlord and Tenant Writ with prejudice;

B. DENY Plaintiff's request for money judgment;

C. Enter judgment in favor of Defendant on each Counterclaim, with damages, statutory multiples (treble for RSA 540-A; double for RSA 540-A:7; up to three months' rent for RSA 540:13-a), reasonable attorney's fees, and costs;

D. AWARD INJUNCTIVE RELIEF restraining Plaintiff from any further prohibited self-help practice;

E. Such other and further relief as the Court deems just and equitable.

Dated: [__/__/____] at [CITY], New Hampshire.

______________________________________
[TENANT SIGNATURE]
[PRINTED NAME]
[ADDRESS]
[PHONE / EMAIL]

If represented:
______________________________________
[ATTORNEY NAME, NH BAR NO.]
[FIRM]
[ADDRESS]
[PHONE / EMAIL]

10. VERIFICATION

STATE OF NEW HAMPSHIRE
COUNTY OF [_______________]

I, [TENANT NAME], being duly sworn, depose and state that I am the Defendant in the foregoing action; that I have read this Tenant's Appearance, Answer, Affirmative Defenses, and Counterclaims; and that the facts therein stated are true to the best of my knowledge, information, and belief.

______________________________________
[TENANT SIGNATURE]

Sworn to before me this [__] day of [_____________], 20[__].

______________________________________
Notary Public / Justice of the Peace
My commission expires: [__/__/____]

11. CERTIFICATE OF SERVICE

I, [TENANT NAME / ATTORNEY], certify that on [__/__/____] I served a true and correct copy of the foregoing Tenant's Appearance, Answer, Affirmative Defenses, and Counterclaims upon Plaintiff [or Plaintiff's counsel] at the following address by [first-class mail / hand delivery / email (if authorized)]:

[LANDLORD / COUNSEL NAME]
[ADDRESS]
[EMAIL (if applicable)]

______________________________________
[TENANT / ATTORNEY SIGNATURE]

12. TENANT PRE-FILING CHECKLIST AND EVIDENCE INVENTORY

Use this checklist BEFORE filing the Appearance/Answer:

☐ Service date of Writ confirmed; 7-day Appearance deadline calendared.
☐ Lease located; full copy obtained.
☐ Rent payment records assembled (receipts, bank statements, money orders).
☐ Photographs of habitability defects taken with date stamps.
☐ Code-enforcement complaints filed and copies obtained.
☐ Written notices to landlord (texts, emails, letters) compiled.
☐ Police reports for self-help, lockouts, harassment obtained.
☐ Witness contact information collected (neighbors, household members).
☐ Security-deposit receipt and any communications about it located.
☐ Lead-paint disclosure (or absence thereof) confirmed.
☐ Free-legal-help intake completed: 603 Legal Aid (1-800-639-5290), NH Legal Assistance (1-800-562-3174), or NH Bar Lawyer Referral (1-603-229-0002).
☐ Cure amount calculated under RSA 540:9 (nonpayment cases) and source of funds identified (charity, family, advance from employer).
☐ Counterclaims for habitability / RSA 540-A / security deposit / retaliation / discrimination evaluated.
☐ Discovery demand prepared and served with the Answer.
☐ Hardship-stay request prepared if execution is likely (RSA 540:13-c, up to 90 days with rent paid into court).

13. NEW HAMPSHIRE PRACTICE NOTES

1. APPEARANCE IS THE FIRST PRIORITY. Without a timely Appearance, default judgment and a Writ of Possession will issue. Even if the tenant cannot draft a full Answer immediately, file the Appearance form within 7 days, then supplement with this Answer/Counterclaim before the hearing.
2. Pro se filings. District Division is accustomed to pro se tenants; the Court Service Center provides assistance.
3. Hearing within 10 days. Move quickly — discovery and witness preparation must be expedited.
4. Cure dismisses nonpayment cases. RSA 540:9 cure with $15 + costs before the hearing terminates the case.
5. Acceptance of partial payment by landlord. Does NOT automatically waive eviction if the landlord delivers a written notice of intent to proceed (RSA 540:13). Confirm whether such notice was given.
6. Habitability defense. Kline v. Burns allows rent abatement to the value-of-defective-premises measure. Defendant must have given the landlord notice and a reasonable opportunity to repair.
7. Self-help is independently actionable. RSA 540-A counterclaims often exceed the underlying possessory dispute and may incentivize settlement.
8. Retaliation presumption. Six-month window from protected activity; landlord must rebut with credible non-retaliatory evidence. Up to three months' rent damages plus attorney's fees.
9. Discrimination claims. Parallel filing with NH Human Rights Commission (1-603-271-2767) and HUD (within one year for fair-housing complaints) preserves administrative remedies.
10. Domestic-violence safe harbor. Verification can be self-certified; insist on confidentiality (RSA 540:11-b).
11. Local ordinances. Manchester, Concord, Nashua, Portsmouth, Lebanon may add protections (rental registries, source-of-income protections, eviction-record sealing).
12. Subsidized housing. Section 8 / public-housing tenants have additional federal protections (one-strike review; grievance procedures; VAWA).
13. Money-judgment cap. $1,500 in possessory action; pursue larger counterclaims separately in small claims (RSA 503, $10,000 cap) or Superior Court.
14. Stay of execution (RSA 540:13-c). Tenant may request up to 90 days with rent paid into court. File before judgment is final.
15. Appeal. 7-day notice of intent + 30-day filing window; rent into court. Appeal lies to Superior Court for de novo review.
16. 2024–2026 amendments. Verify current RSA 540:2 and RSA 540:3 text at gc.nh.gov. HB 1115 (2024) attempted no-cause eviction at lease end and was sent to interim study.
17. Eviction-record sealing. Consider filing a motion to seal at the conclusion of any case in which the tenant prevails or settles, to limit downstream housing-application consequences.

14. SOURCES AND REFERENCES

• RSA Chapter 540: https://gc.nh.gov/rsa/html/lv/540/540-mrg.htm
• RSA Chapter 540-A: https://gc.nh.gov/rsa/html/lv/540-A/540-A-mrg.htm
• RSA Chapter 354-A: https://gc.nh.gov/rsa/html/xxxi/354-a/354-a-mrg.htm
• RSA Chapter 130-A (Lead Paint): https://gc.nh.gov/rsa/html/x/130-a/130-a-mrg.htm
• NH Circuit Court — District Division Landlord/Tenant: https://www.courts.nh.gov/our-courts/circuit-court/district-division/landlordtenant
• NH District Division Rules — Landlord and Tenant: https://www.courts.nh.gov/rules-circuit-court-state-new-hampshire-district-division/landlord-and-tenant-actions
• NH Judicial Branch — LL-T Forms: https://www.courts.nh.gov/our-courts/circuit-court/district-division/forms/landlordtenant-forms
• LL-T Information Sheet: https://www.courts.nh.gov/sites/g/files/ehbemt471/files/documents/2021-04/llt-information-sheet.pdf
• NH Law Library — Residential Evictions Research Guide: https://courts-state-nh-us.libguides.com/evictions
• NH Law Library — Habitability: https://courts-state-nh-us.libguides.com/cleansaferentals
• Kline v. Burns, 111 N.H. 87 (1971): https://law.justia.com/cases/new-hampshire/supreme-court/1971/6051-0.html
• Horton v. Clemens, 173 N.H. 480 (2020).
• AIMCO Properties, LLC v. Dziewisz, 152 N.H. 587 (2005).
• 603 Legal Aid: https://www.603legalaid.org
• New Hampshire Legal Assistance: https://www.nhla.org
• NH Human Rights Commission: https://www.nh.gov/hrc/
• HUD Fair Housing complaint: https://www.hud.gov/program_offices/fair_housing_equal_opp/online-complaint

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