MANCHESTER, NH – For nearly a half-century, New Hampshire Legal Assistance Attorney Elliott Berry has been the person tenants turn to for help when facing housing problems including evictions.
This week, he announced he is retiring effective Oct. 31, 2022. It comes at a time when Berry says the state is in an “acute crisis” when it comes to affordable housing especially for the very low income. With a vacancy rate of .5 percent and multifamily buildings being bought for record amounts, tenants are getting hit with rent hikes from $500 to $1500 or more, sometimes double what they were paying.
It’s becoming commonplace for that same tenant to simultaneously receive an eviction notice because, the new landlord says, their apartment must be renovated.
Berry said apartment buildings are being sold as commodities when they are “actually essential for people to live a normal life. If you don’t have a place to live, your whole life unravels. It’s just the most fundamental aspect of life is disrupted.”
Rent increases, he said, are a huge problem. In a tight housing market, landlords are setting “crazy high rent increases that tenants can’t pay.”
He said the sales and resale of buildings, with rents increased each time a building is resold, is something the market itself is not going to correct. In the economics theater, he said, “it couldn’t be more unbalanced” between landlords and tenants, with landlords having the upper hand.
However, he said as long as landlords are allowed to increase rent sas much as they want there is a “profound unbalance in favor of landlords.”
Berry said there is nothing unique about evictions currently taking place in New Hampshire.
“It’s (evictions) hitting the fan in most metropolitan areas,” he said. “At the end of the day, it’s going to be Congress that will have to act. Congress is going to have to listen to its constituents and do something. The marketplace is just not going to self-correct to provide affordable housing for the low income.”
Already, Oregon enacted rent control statewide in response to rising rents. In St. Paul, Minn., the strictest rate control law in the country went into effect on May, 2022. Rent increases on every rental unit and all renters are capped at 3 percent per 12-month period. The 3 percent limit also applies to a vacant unit after a tenant moves out, which means that a landlord cannot charge a new tenant more than 3 percent over what the prior tenant was paying.
“That gives you a darn good idea how freaked out people are about this,” Berry said.
Berry, managing attorney of the Manchester NHLA office and Housing Project Director, is known as the architect of many of the state’s laws protecting tenants and for being a prominent anti-poverty advocation.
In his 47 years as an attorney, he has always worked for NHLA, which he joined as a VISTA volunteer in 1975 after graduating from Boston College Law School. His stipend was about $4,000.
“I never had an interest in going to a for-profit law firm. The truth is, I’m not fascinated by the law. I’m motivated by what I can do with the law for people who have extremely limited power and resources. The opportunities to do this in New Hampshire were quite limited for a non-profit lawyer. So here I am, and here I stayed,” Berry said.
Over his career, he’s worked on thousands of individual client cases, numerous appeals and class action cases. In 1990, he won an exclusionary zoning case against the town of Chester, challenging its zoning restrictions that prevented housing development for low- and moderate-income families.
When he first started, he said it was common for landlords to lock out tenants without getting a court order, called a writ of possession. It was illegal, but there was no penalty if a landlord did it. Now, he said, a tenant can go to court and, that same day, get an order preventing the landlord from doing that. Additionally, Berry said, at a final hearing, substantial money damages can be awarded to the tenant.
“The system works,” he said. “There are pre-printed petitions tenants can fill out and get an order that day. That was a game changer.”
Another significant change, he said, was that landlords cannot evict tenants for any reason, there now has to be “good cause,” i.e., if they are behind in the rent.
The most significant thing that happened over the years, he said, was NHLA saved thousands of people from being evicted.
His biggest failure? Trying to limit rent increases.
“Easily, it’s one of the biggest failures of my career,” he said of the NHLA lobbying effort he led in the 1970s to enact a law. “And it’s so much worse now than it used to be.”
The bottom line is New Hampshire and the country need more affordable housing, he said. The state is beginning to address the issue with the Governor allocating $100 million to the effort.
“We can’t entirely build our way out of this,” he said. The federal government, he said, which stepped away from building public housing needs to weigh in.
Homelessness, he said, didn’t become a major issue for the U.S. until after the country stopped building public housing.
Berry said while the pandemic exacerbated the housing crisis, it didn’t cause it. “The marketplace in my career has never produced enough housing that is affordable and decent for low income,” he said.
He said the state issued a moratorium on evictions when COVID-19 caused businesses to shut down and people lost their jobs, which was “broad and incredibly helpful” in keeping residents in their homes. When it ended in June 2020, he said the “feds jumped in and put a moratorium in place for non-payment of rent.” That expired on Sept. 4, 2021, and evictions began to increase.
He said the Emergency Rental Assistance Program, which is federally funded and temporary, has covered rents for people unable to pay because of COVID-19. Hundreds of millions of dollars have been spent on the program in NH.
ERAP was to expire after 18 months, but Berry said it continues under ERAP II. He said while the program is working there is a serious lag in the processing times, which varies among Community Action Programs (CAPs), the distributors of the funds.
Southern New Hampshire Services, the CAP for Hillsborough County, is now handling both Hillsborough and Rockingham counties. They, along with NHLA, have representatives in Circuit Court to ensure people are approved for ERAP “right there on the spot which has been amazing.”
That has proved extremely beneficial, especially when evictions have picked up in the past year, he said.
Berry believes the number of evictions are increasing because landlords have figured out if they file an eviction action, CAPs are likely to expedite payment under REAP.
“Really cynical on my part, I’m sure a number of these rent increases are so high because landlords think the REAP program will just pay it,” he said.
Berry explained HUD for Fiscal Year 2021 set the fair market value rent for a two-bedroom apartment in Manchester at $1,314. He said, however, that is low and as rents continue to rise, the CAP has doubled the amount they will pay.
“Landlords see they are below that threshold,” he said. As a result, they hike the rents while encouraging their tenants to apply for REAP.
“It’s one thing to encourage your tenant to apply,” Berry said. “It’s another thing to say that REAP will pay the additional $800 a month.”
Berry said he would like to see laws enacted so that a tenant is allowed to challenge what appears to be a grossly unfair rent increase. He also would like to see the number of days a tenant has to vacate in a renovation eviction be increased (it’s currently 30 days) with landlords required to provide evidence the renovations are so extensive and necessary that tenants have to vacate the premises.
An attempt was made in the last legislative session to increase that to 90 days in renovation evictions. The Senate reduced it to 60 days and then passed it, but it failed to pass in the House.
“It’s discouraging to fight so hard for so little,” Berry said.