The town of Goshen NH has an Ordinance which states: No building shall be occupied until a certificate of occupancy has been issued by the Building Inspector.Another Goshen ordinance states: No new house or apartment shall be occupied, or a vacated house or apart- ment shall be reoccupied, until a certificate of occupancy has been issued by the town official or employee designated by the Board of Selectmen.The property and the dwelling on it (the "property") at 144 Rand Pond Road are located in Goshen and have been owned by EAH ("Landlord") from 2005 to the present. During the years 2005-2008, Landlord rented the dwelling seasonally, between June and September.In October 2009, however, after several failed attempts to sell the property, Landlord leased it as a full-time year round dwelling to RCO ("Tenant') for $1,000 per month. Nor is it likely that one would have been issued since the building is inadequately insulated for winter use; the septic system does not function reliably; there is no drinkable water within the house; and the dwelling violates the Code in several other ways.The Town Clerk has checked her records and states that Landlord has never had a certificate of occupancy for the property and specifically did not obtain one when he changed his use of the property from seasonal to year round rental in October 2009.Tenant has occupied the property from October 2009 until the present and has therefore paid Landlord $18,000 pursuant to a contract. that is apparently unlawful per se. Moreover, Tenant paid excessive heating bills because of the lack of insulation and suffered other less significant damages.What rights and on what specific case or statutory authority - - such as a right to full or partial rent abatement - - does NH law afford Tenant, if any, under the circumstances ?
Potentially the right to a partial rent abatement or partial refund of the rent paid.That although the LL didn't comply with the requirement of obtaining a Certificate of Occupancy - you did live there. It would be considered "unjust enrichment" for you not to pay for some rent during that period of time.Yes, it's "per se" wrong of the LL to rent the property without first obtaining the certificate of occupancy.After research of the issue as to NH's case law - I found no cases allowing for the full recovery of rent paid.To the contrary, in this case - "the certificate merely provides evidence that the town building inspector believed that the structure was in compliance."As such, you would need to prove your damages to recover or get a refund of the rent paid. You could do such by providing evidence that the structure wasn't properly insulated and, therefore, your utility bills were higher than they should be.SUPREME COURT OF NEW HAMPSHIRE No. 81-208 1982.NH.52 <http://www.versuslaw.com>, 444 A.2d 495, 122 N.H. 244 March 10, 1982 WILLIAM J. STREIT & A.v.MICHAEL F. CALLAHAN D/B/A CALLAHAN CONSTRUCTION, INC. SYLLABUS BY THE COURT 1. Municipal Ordinances--Building Code--Compliance The issuance of a certificate of occupancy is not conclusive on the issue of compliance with a town building code, and the certificate merely provides evidence that the town building inspector believed that the structure was in compliance. 2. Contracts--Construction Contracts--Breach In a trial for breach of contract for failure to perform some of the construction of a house in a workmanlike manner, where the plaintiffs presented expert testimony that stairs did not comply with the town building code, were negligently designed, and although a certificate of occupancy was issued by the town building inspector, which was evidence of compliance with the building code but not conclusive, the defendant's expert admitted that the code was susceptible to various interpretations, there was sufficient evidence, where the jury had a view of the premises and was able to weigh the testimony introduced, to sustain the verdict for the plaintiffs. Stephen E. Borofsky, of Nashua, by brief and orally, for the plaintiffs. Robert J. Moses, of Amherst, by brief and orally, for the defendant. Memorandum Opinion King, C.j., did not sit. Following a view of the premises and a trial (Flynn, J., presiding), a jury returned a verdict for the plaintiffs in the amount of $13,000. The claims against the defendant, a builder who (according to his own testimony) has been involved in hundreds of construction projects, were that he breached his contract to build a house for the plaintiffs by failing to perform some of the construction in a workmnanlike manner. The principal dispute centered on a set of stairs that the plaintiffs alleged were inadequate. The stairs were constructed with a nine-inch tread, but, because the angle between the tread and the riser was less than ninety degrees, the distance between the leading edge of one tread and a plane perpendicular to the leading edge of the next tread was only six inches. The defendant has preserved only two issues for appeal. The first issue, in essence, is whether the issuance of a certificate of occupancy by a town building inspector precluded a finding of liability, as a matter of law. The second issue is whether there was sufficient evidence to support the verdict.  We hold that the issuance of a certificate of occupancy is not conclusive on the issue of compliance with a town building code. The certificate of occupancy merely provides evidence that the town building inspector believed that the structure was in compliance. The plaintiffs presented expert testimony that the stairs did not comply with the code. Given the conflict at trial over the question of compliance with the building code, we need not decide whether actual compliance with the building code would preclude recovery by the plaintiffs. See generally Lemery v. O'Shea Dennis, Inc., 112 N.H. 199, 200-01, 291 A.2d 616, 617-18 (1972).  Furthermore, there was sufficient evidence introduced at trial for the jury to conclude that the stairs were constructed in an unworkmanlike manner. The plaintiffs' expert testified that, according to his interpretation of the building code, the stairs were negligently designed. The defendant's expert admitted that the code was susceptible to various interpretations. The jury had a view of the premises and was able to weigh the testimony introduced at trial. It is clear that there was sufficient evidence to sus tain the verdict. See Rogers v. Public Service Co., 121 N.H. 956, 959, 437 A.2d 263, 265-66 (1981).19820310© 1997 VersusLaw Inc.
Thanks for your answer. Many of its points are well taken. Streit, however, was a breach of contract case which engaged the issue of liability for damages arising from an alleged breach of contract. Specifically, Plaintiff, owner of a house built by Streit, claimed: 1) that Streit, a builder, had breached his contractual obligation to construct the stairs in the house in a workmanlike manner; and 2) that Streit’s breach in that regard had resulted in injury to the Plaintiff. Steit’s defense, was: 1) that the Building Inspector had issued a certificate of occupancy; and 2) that the issuance of the certificate was an absolute defense to Plaintiff’s claim. The court of appeals upheld the jury’s finding that the mere issuance of the certificate was not dispositive on the issue of Streit’s liability, although it declined to decide, somewhat unclearly, how “actual compliance” would have affected the outcome of the case.But Streit and the situation I have asked about are fundamentally different in this respect: in Streit there was a certificate of occupancy. Here there was none. In your view, might not Streit have been decided differently if Steit had simply sold the the home to Plaintiff without ever bothering to obtain a certificate, even though legally required to do so ?
No. There was another case on that issue and basically the court held the same - "that the certificate merely provides evidence that the town building inspector believed that the structure was in compliance."Now the buyers could rescind the contract if the dwelling if the property had a defect and couldn't get a certificate of occupancy OR the sellers would have to pay for any costs of repairs.But the reality is - that it would be "unjust enrichment" for you to have lived there all that period of time and not pay rent or get reimbursed your rent.You have to show that you were injured or damaged by their NOT have the certificate of occupancy.
I agree that, since I had "the benefit of the bargain," and actually lived here for 18 months, it would constitute unjust enrichment for all of the rent to be returned to me. And I agree that I would need to show some actual damages from Landlord's failure to obtain a certificate.But, in your opinion, does the failure of landlord to obtain a certificate of occupancy, when lawfully required to do so, dispose of the issue of liability for any such demonstrable damages ? A parallel example would be a motorist driving with out an operator's permit. If he had an accident and there were damages, there would be no question of his liability for them, since the lack of a lawfully required permit permit would, standing alone, be sufficient to establish liability. The only issue would be damages.
You stated:But, in your opinion, does the failure of landlord to obtain a certificate of occupancy, when lawfully required to do so, dispose of the issue of liability for any such demonstrable damages?A parallel example would be a motorist driving with out an operator's permit. If he had an accident and there were damages, there would be no question of his liability for them, since the lack of a lawfully required permit permit would, standing alone, be sufficient to establish liability. The only issue would be damages. Answer:You not talking apples to apples here at all - that is NOT a parallel example. To the contrary, driving is a privilege not a right and there are statutes which spell out what the fines and penalties are for failure to have such.Your not in the same situation at all.Your basically reduced to what you can show as to what your damages were.You absolutely need to prove damages to be able to recover. However, I'm sure that a court would give you the benefit of the doubt if ambiguous or not clearly ascertainable - they would come up with something to assist you.However, you need to show that you were damaged - not just that he didn't obtain the occupancy permit.Yes, the LL can be fined by the municipality for not obtaining the occupancy permit - but those are not your damages nor payable to you.
20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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