Actual Payment, Not Mere Tender, Required to Cure Rent Arrears under RSA 540:9

Introduction

In Barrington Oaks Cooperative, Inc. v. Frank Blackington (Supreme Court of New Hampshire, Mar. 26, 2025), the Court addressed a pivotal question in landlord‐tenant law: whether a tenant’s mere offer or tender of payment suffices to defeat an eviction based solely on nonpayment of rent under RSA 540:9. Barrington Oaks Cooperative, Inc. (“Barrington Oaks”), the operator of a manufactured housing park, filed a possessory action seeking eviction of Frank Blackington (the tenant) for nonpayment of rent covering July and August 2023. Blackington asserted that he had offered $1,000 prior to his eviction hearing—an amount exceeding the $855 rent owed—but the trial court entered a writ of possession upon finding that he had not “paid” the arrearage. On appeal, the Supreme Court of New Hampshire reaffirmed the necessity of actual payment under RSA 540:9, distinguishing “payment” from “tender,” and affirmed the writ of possession.

Summary of the Judgment

The Supreme Court reviewed the facts and arguments under deference to the trial court’s factual findings but with de novo review of statutory interpretation. RSA 540:9( I)(a) provides that a possessory action based solely on nonpayment of rent “shall be dismissed if” the tenant, prior to the merits hearing, pays “all rent due and owing” plus liquidated damages, fees, and costs “to the landlord in cash, certified check, prepaid money order, electronic transfer, or other guaranteed or immediately drawable funds.” The Court held, as a matter of plain statutory language, that an “offer” or “tender” of payment does not satisfy the requirement that the tenant “pay[] to the landlord” the sums due. The trial court therefore correctly found that Blackington had not cured the arrearage. All other arguments (due process, inadequate trial explanation, interplay with RSA chapter 205-A) were either unpreserved or without merit. The Supreme Court affirmed the writ of possession.

Analysis

Precedents Cited

• Sherryland v. Snuffer, 150 N.H. 262 (2003) – established the standard of review for factual findings (which will not be disturbed unless unsupported or erroneous) and legal conclusions (reviewed for plain error).
• St. Onge v. Oberten, LLC, 174 N.H. 393 (2021) – reiterated that statutory interpretation is reviewed de novo, beginning with the plain text, giving effect to every word, and construing the statute in harmony with its overall scheme.
• State v. Blackmer, 149 N.H. 47 (2003) – clarified the preservation requirements for appellate review; arguments not raised below may be deemed waived.
• Vogel v. Vogel, 137 N.H. 321 (1993) – explained that issues without sufficient merit do not require extended discussion.

These authorities framed the Court’s approach: defer to the trial court on fact, interpret statutes de novo, and enforce preservation and merit standards for appellate issues.

Legal Reasoning

Core to the decision was the text and context of RSA 540:9, I(a) (Supp. 2024). The Court observed that:

• The statute speaks of a tenant who “pays to the landlord” specified amounts “in cash, certified check, prepaid money order, electronic transfer, or other guaranteed or immediately drawable funds.”
• It does not mention or authorize a mere “tender” or “offer” of payment.
• Interpretive principals require giving effect to every word; the omission of “tender” reflects a deliberate legislative choice.
• “Pay” is defined as the actual delivery or transfer of funds, not a promise or offer to do so.

Applying these rules, the Court concluded that Blackington’s testimony—he had “offered” $1,000 but Barrington Oaks refused to accept it—did not constitute payment under the statute. As a result, the trial court’s finding that he did not cure the arrearage was correct. The statute’s remedy—to dismiss the eviction if the tenant pays the owed amounts—was inapplicable because no payment was delivered.

The Court also addressed, and rejected, the tenant’s constitutional due process claim and his contention that the trial judge had failed to explain the process adequately. Those issues were either procedurally defaulted or lacked substantive merit.

Impact

This decision underscores a strict-pay requirement in eviction actions under RSA chapter 540. Landlords and tenants now have clear guidance:

• Tenants must effectuate actual payment—by one of the statutorily recognized methods—to cure rent-based eviction notices. Mere tender, promises, or offers are insufficient.
• Landlords should properly record acceptance or refusal of payment offers and protect themselves by insisting on complete performance under RSA 540:9.
• Counsel for tenants facing eviction must emphasize timely and verifiable payment delivery rather than relying on pre-hearing offers.

Additionally, the special concurrence highlights a potential conflict between RSA chapter 540 and RSA chapter 205-A (manufactured housing park tenancies). Under RSA 205-A:4, a tenant may “pay or tender” arrearages plus liquidated damages before notice expiration. By contrast, RSA 540:9 requires actual payment before the hearing. Although the Court did not resolve this disharmony here, future litigants or the Legislature may address the inconsistency.

Complex Concepts Simplified

1. RSA 540:9 Eviction Cure Provision
A statute allowing tenants to stop an eviction for nonpayment if they actually deliver all owed rent, damages, fees, and costs to the landlord before the court hearing. The payment must be in cash, certified funds, electronic transfer, or a similar form—nothing less.

2. Pay vs. Tender
“Pay” means you give the landlord the money. “Tender” means you offer to give it. Under RSA 540:9, the law says you must pay (hand over the funds), not just tender (promise or offer).

3. Statutory Interpretation Principles
- De novo review: the appellate court interprets the law anew.
- Plain meaning: words are given their ordinary definition unless the context dictates otherwise.
- Inclusion and exclusion: if the legislature includes certain terms and omits others, the omission is meaningful.
- Harmonization: statutes within the same scheme are read together to avoid conflict.

Conclusion

Barrington Oaks Cooperative v. Blackington crystallizes a critical principle: to avoid eviction under RSA 540:9, a tenant must effectuate actual payment of arrearages and related charges as specified by statute. Offers or tenders, however generous, fall short of this requirement. This ruling brings clarity to a recurring source of landlord‐tenant disputes and emphasizes the importance of understanding precise statutory language. It also raises further questions about the interplay between general landlord-tenant law (RSA chapter 540) and manufactured housing park tenancy law (RSA chapter 205-A). Practitioners should monitor legislative or judicial developments that may reconcile these two schemes. Meanwhile, tenants must act quickly to deliver payment in an immediately drawable form if they wish to halt eviction proceedings.