Overview
of
New Jersey
Landlord/Tenant Law
Bridge the Gap
PREPARED FOR
NYCLA CLE Institute
14 Vesey Street
New York, NY 10007
PREPARED BY:
EHRLICH PETRIELLO GUDIN & PLAZA, P.C.
60 PARK PLACE, SUITE 1016
NEWARK, NJ 07102-5504
TEL. 973-643-0040
FAX. 973-596-1781
WWW.EPGP-Law.com
December 5, 2013
PLANNING AHEAD TO AVOID TENANCY PROBLEMS
Planning ahead to avoid tenancy problems, and the ultimate need to engage in
the eviction process begins long before one chooses to enter into a contract to lease a
premises. Through the presentation of this program we intend to highlight critical issues
faced by landlords and tenants engaged in the business and law of leasing in New
Jersey.
LEGAL REQUIREMENTS ~ PREMISE
It is said that Landlord/Tenant law is “Hyper Technical.” That is because if there
is any defect in form or procedure in a Plaintiff- Landlord’s action for repossession of a
rented premises, a Court must dismiss the action. It has been said, “the failure of plaintiff
to have scrupulously followed all notification procedures mandated by the Anti-Eviction Act
requires that its complaints be dismissed. And, “when dealing with tenants, landlords must turn
square corners.” Sacks Realty Co. v. Batch, 235 N.J.Super. 269, 561 A.2d 1216
N.J.Super.L.,1989.
There are many “filing” and, lease “language” requirements, “service” of notice
prerequisites, as well as other "dos" and "don’ts" in connection with tenancy laws and
procedure in New Jersey that are all usually critical to a case.
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THE EVICTION ACTION
"LANDLORD/TENANT" COURT
The Landlord/Tenant court is a division of the Special Civil Part of the Superior
Court of New Jersey. Each county in the State of New Jersey has a Landlord/Tenant
Court that is empowered by statute to hear cases affecting tenancies within their county
jurisdiction. The court's jurisdiction is limited to awarding "possession" of the premises
to the landlord.
That is, if a landlord is successful in bringing a case in the
Landlord/Tenant Court, they will receive a "Judgment of Possession" which entitles
them to evict the tenant from the demised (rented) premises.
As a condition to
commencing a case in the Landlord/Tenant Court, a landlord/tenant relationship
must exist between the plaintiff (generally the landlord) and the defendant (generally
the tenant.) If either party seeks any different form of relief, the tenancy judge has the
power to transfer the case to a higher court which has more jurisdiction.
Cases that are brought (or filed) in Landlord/Tenant Court are known as
"summary dispossess" proceedings. They are so named after the New Jersey Court
Rule that authorizes the commencement of the case. The Rule provides the defendant
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shall "appear and state a defense" in lieu of providing a written answer, which is the
usual way to respond to a plaintiff's Complaint.
THE "PARTIES”
Generally, the landlord is the plaintiff and the tenant is the defendant. However,
notwithstanding the foregoing, since judgments of possession may affect the rights of
other persons occupying the rented premises, there has been a trend by certain judges,
depending on what county you’re in to have the landlord name all known adult
occupants as defendants in the action for possession.
The theory is that all those
whose interests may be affected by an adverse judgment should be included in the
action, so they are served with process and get notice. This would include all subtenants, undertenants, assignees, spouses, boyfriends/girlfriends, etc.
COMMENCING THE CASE
A summary dispossession action against a tenant is governed by one of the
following statutes:
-
the Summary Dispossess Act (N.J.S.A. 2A:18-53)
or
-
the Anti-Eviction Act (N.J.S.A. 2A:18-61.1)
In my experience, the Anti-Eviction Act applies to well over 95% of the cases that
are brought in tenancy court each day.
The Anti-Eviction Act applies to (i) residential properties if the owner (landlord)
does not live there or (ii) if the owner does live there and there are more than two
other rental units.
The Summary Dispossess Act applies to all other rental or
residential properties including commercial tenancies. I have provided a copy of each
of these acts on the following pages.
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A tenant falling within the purview of the Anti-Eviction Act is said to have a
"protected" tenancy. A landlord cannot terminate this type of tenancy without cause, i.e.
one of the grounds provided for by the statute. Theoretically, a tenant can remain in the
demised (rented) premises for as long as they want, so long as there is no violation of
any provision in the Act. Hence, they are "protected" from the whims of a landlord.
2A:18-61.1. Removal of residential tenants; grounds
No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant
may be removed by the Superior Court from any house, building, mobile home or land in a mobile
home park or tenement leased for residential purposes, other than (1) owner-occupied premises
with not more than two rental units or a hotel, motel or other guest house or part thereof rented to
a transient guest or seasonal tenant; (2) a dwelling unit which is held in trust on behalf of a member
of the immediate family of the person or persons establishing the trust, provided that the member
of the immediate family on whose behalf the trust is established permanently occupies the unit; and
(3) a dwelling unit which is permanently occupied by a member of the immediate family of the
owner of that unit, provided, however, that exception (2) or (3) shall apply only in cases in which
the member of the immediate family has a developmental disability, except upon establishment of
one of the following grounds as good cause:
a. The person fails to pay rent due and owing under the lease whether the same be oral or written.
b. The person has continued to be, after written notice to cease, so disorderly as to destroy the peace
and quiet of the occupants or other tenants living in said house or neighborhood.
c. The person has willfully or by reason of gross negligence caused or allowed destruction, damage
or injury to the premises.
d. The person has continued, after written notice to cease, to substantially violate or breach any of
the landlord's rules and regulations governing said premises, provided such rules and regulations
are reasonable and have been accepted in writing by the tenant or made a part of the lease at the
beginning of the lease term.
e. (1) The person has continued, after written notice to cease, to substantially violate or breach any
of the covenants or agreements contained in the lease for the premises where a right of reentry is
reserved to the landlord in the lease for a violation of such covenant or agreement, provided that
such covenant or agreement is reasonable and was contained in the lease at the beginning of the
lease term.
(2) In public housing under the control of a public housing authority or redevelopment agency, the
person has substantially violated or breached any of the covenants or agreements contained in the
lease for the premises pertaining to illegal uses of controlled dangerous substances, or other illegal
activities, whether or not a right of reentry is reserved to the landlord in the lease for a violation of
such covenant or agreement, provided that such covenant or agreement conforms to federal
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guidelines regarding such lease provisions and was contained in the lease at the beginning of the
lease term.
f. The person has failed to pay rent after a valid notice to quit and notice of increase of said rent,
provided the increase in rent is not unconscionable and complies with any and all other laws or
municipal ordinances governing rent increases.
g. The landlord or owner:
(1) seeks to permanently board up or demolish the premises because he has been cited by local or
State housing inspectors for substantial violations affecting the health and safety of tenants and
it is economically unfeasible for the owner to eliminate the violations;
(2) seeks to comply with local or State housing inspectors who have cited him for substantial
violations affecting the health and safety of tenants and it is unfeasible to so comply without
removing the tenant; simultaneously with service of notice of eviction pursuant to this clause,
the landlord shall notify the Department of Community Affairs of the intention to institute
proceedings and shall provide the department with such other information as it may require
pursuant to rules and regulations. The department shall inform all parties and the court of its
view with respect to the feasibility of compliance without removal of the tenant and may in its
discretion appear and present evidence;
(3) seeks to correct an illegal occupancy because he has been cited by local or State housing
inspectors or zoning officers and it is unfeasible to correct such illegal occupancy without
removing the tenant; or
(4) is a governmental agency which seeks to permanently retire the premises from the rental
market pursuant to a redevelopment or land clearance plan in a blighted area. In those cases
where the tenant is being removed for any reason specified in this subsection, no warrant for
possession shall be issued until P.L.1967, c. 79 (C.52:31B-1 et seq.) and P.L.1971, c. 362
(C.20:4-1 et seq.) have been complied with.
h. The owner seeks to retire permanently the residential building or the mobile home park from
residential use or use as a mobile home park, provided this subsection shall not apply to
circumstances covered under subsection g. of this section.
i. The landlord or owner proposes, at the termination of a lease, reasonable changes of substance in
the terms and conditions of the lease, including specifically any change in the term thereof, which
the tenant, after written notice, refuses to accept; provided that in cases where a tenant has
received a notice of termination pursuant to subsection g. of section 3 of P.L.1974, c. 49 (C.2A:1861.2), or has a protected tenancy status pursuant to section 9 of the "Senior Citizens and Disabled
Protected Tenancy Act," P.L.1981, c. 226 (C.2A:18-61.30), or pursuant to the "Tenant Protection
Act of 1992," P.L.1991, c. 509 (C.2A:18-61.40 et al.), the landlord or owner shall have the burden of
proving that any change in the terms and conditions of the lease, rental or regulations both is
reasonable and does not substantially reduce the rights and privileges to which the tenant was
entitled prior to the conversion.
j. The person, after written notice to cease, has habitually and without legal justification failed to
pay rent which is due and owing.
k. The landlord or owner of the building or mobile home park is converting from the rental market
to a condominium, cooperative or fee simple ownership of two or more dwelling units or park sites,
except as hereinafter provided in subsection l. of this section. Where the tenant is being removed
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pursuant to this subsection, no warrant for possession shall be issued until this act has been
complied with. No action for possession shall be brought pursuant to this subsection against a
senior citizen tenant or disabled tenant with protected tenancy status pursuant to the "Senior
Citizens and Disabled Protected Tenancy Act," P.L.1981, c. 226 (C.2A:18-61.22 et al.), or against a
qualified tenant under the "Tenant Protection Act of 1992," P.L.1991, c. 509 (C.2A:18-61.40 et al.),
as long as the agency has not terminated the protected tenancy status or the protected tenancy
period has not expired.
l. (1) The owner of a building or mobile home park, which is constructed as or being converted to a
condominium, cooperative or fee simple ownership, seeks to evict a tenant or sublessee whose initial
tenancy began after the master deed, agreement establishing the cooperative or subdivision plat
was recorded, because the owner has contracted to sell the unit to a buyer who seeks to personally
occupy it and the contract for sale calls for the unit to be vacant at the time of closing. However, no
action shall be brought against a tenant under paragraph (1) of this subsection unless the tenant
was given a statement in accordance with section 6 of P.L.1975, c. 311 (C.2A:18-61.9);
(2) The owner of three or less condominium or cooperative units seeks to evict a tenant whose initial
tenancy began by rental from an owner of three or less units after the master deed or agreement
establishing the cooperative was recorded, because the owner seeks to personally occupy the unit,
or has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for
sale calls for the unit to be vacant at the time of closing;
(3) The owner of a building of three residential units or less seeks to personally occupy a unit, or
has contracted to sell the residential unit to a buyer who wishes to personally occupy it and the
contract for sale calls for the unit to be vacant at the time of closing.
m. The landlord or owner conditioned the tenancy upon and in consideration for the tenant's
employment by the landlord or owner as superintendent, janitor or in some other capacity and
such employment is being terminated.
n. The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated
delinquent on the basis of an act which if committed by an adult would constitute an offense under
the "Comprehensive Drug Reform Act of 1987," N.J.S.2C:35-1 et al. involving the use, possession,
manufacture, dispensing or distribution of a controlled dangerous substance, controlled dangerous
substance analog or drug paraphernalia within the meaning of that act within or upon the leased
premises or the building or complex of buildings and land appurtenant thereto, or the mobile home
park, in which those premises are located, and has not in connection with his sentence for that
offense either (1) successfully completed or (2) been admitted to and continued upon probation
while completing, a drug rehabilitation program pursuant to N.J.S.2C:35-14; or, being the tenant
or lessee of such leased premises, knowingly harbors or harbored therein a person who has been so
convicted or has so pleaded, or otherwise permits or permitted such a person to occupy those
premises for residential purposes, whether continuously or intermittently, except that this
subsection shall not apply to a person harboring or permitting a juvenile to occupy the premises if
the juvenile has been adjudicated delinquent upon the basis of an act which if committed by an
adult would constitute the offense of use or possession under the said act. No action for removal
may be brought pursuant to this subsection more than two years after the date of the adjudication
or conviction or more than two years after the person's release from incarceration whichever is the
later.
o. The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated
delinquent on the basis of an act which if committed by an adult would constitute an offense under
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N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault, or terroristic threats against the landlord, a
member of the landlord's family or an employee of the landlord; or, being the tenant or lessee of
such leased premises, knowingly harbors or harbored therein a person who has been so convicted
or has so pleaded, or otherwise permits or permitted such a person to occupy those premises for
residential purposes, whether continuously or intermittently. No action for removal may be
brought pursuant to this subsection more than two years after the adjudication or conviction or
more than two years after the person's release from incarceration whichever is the later.
p. The person has been found, by a preponderance of the evidence, liable in a civil action for
removal commenced under this act for an offense under N.J.S.2C:20-1 et al. involving theft of
property located on the leased premises from the landlord, the leased premises or other tenants
residing in the leased premises, or N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault or terroristic
threats against the landlord, a member of the landlord's family or an employee of the landlord, or
under the "Comprehensive Drug Reform Act of 1987," N.J.S.2C:35-1 et al., involving the use,
possession, manufacture, dispensing or distribution of a controlled dangerous substance, controlled
dangerous substance analog or drug paraphernalia within the meaning of that act within or upon
the leased premises or the building or complex of buildings and land appurtenant thereto, or the
mobile home park, in which those premises are located, and has not in connection with his sentence
for that offense either (1) successfully completed or (2) been admitted to and continued upon
probation while completing a drug rehabilitation program pursuant to N.J.S.2C:35-14; or, being
the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who
committed such an offense, or otherwise permits or permitted such a person to occupy those
premises for residential purposes, whether continuously or intermittently, except that this
subsection shall not apply to a person who harbors or permits a juvenile to occupy the premises if
the juvenile has been adjudicated delinquent upon the basis of an act which if committed by an
adult would constitute the offense of use or possession under the said "Comprehensive Drug
Reform Act of 1987."
q. The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated
delinquent on the basis of an act which if committed by an adult would constitute an offense under
N.J.S.2C:20-1 et al. involving theft of property from the landlord, the leased premises or other
tenants residing in the same building of complex; or being the tenant or lessee of such leased
premises, knowingly harbors therein a person who has been so convicted or has so pleaded, or
otherwise permits such a person to occupy those premises for residential purposes, whether
continuously or intermittently.
GROUNDS FOR EVICTION
When a landlord is seeking to terminate a tenancy, it is important to select the
proper statutory grounds. Under no circumstances may a tenant be legally "evicted"
without meeting a statutory prerequisite. Note that the statute may require that one or
more notices be served upon the tenant prior to proceeding with court action. With the
exception of a tenant's non-payment of rent, or failure to pay rent after a reasonable
increase (which requires a separate notice unto itself), a landlord is required to serve
8
notice upon a tenant prior to the institution of court action. N.J.S.A. 2A:18-61.2 provides
the notice requirements.
The concept of notice upon default is usually a term that commands significant
attention in a commercial lease negotiation. If I am negotiating on behalf of a tenant I
want the most liberal “notice with opportunity to cure” provision I can get. As landlords
we must always be certain to refer to the lease agreement before commencing an
action for possession to be sure we have complied with any notice conditions precedent
for our failure to strictly adhere will result in a dismissal of our case and our delay in
repossession.
2A:18-61.2.
Removal
of
residential
tenants;
required
notice;
contents;
service
No judgment of possession shall be entered for any premises covered by section 2 of this act,
(2A:18-61.1) except in the nonpayment of rent under subsection a. or f. of section 2, unless the
landlord has made written demand and given written notice for delivery of possession of the
premises. The following notice shall be required:
a. For an action alleging disorderly conduct under subsection b. of section 2, or injury to the
premises under subsection c. of section 2, or any grounds under subsection m., n., o. or p. of section
2, three days' notice prior to the institution of the action for possession;
b. For an action alleging continued violation of rules and regulations under subsection d. of section
2, or substantial breach of covenant under subsection e. of section 2, or habitual failure to pay rent,
one month's notice prior to the institution of the action for possession;
c. For an action alleging any grounds under subsection g. of section 2, three months' notice prior to
the institution of the action;
d. For an action alleging permanent retirement under subsection h. of section 2, 18 months' notice
prior to the institution of the action and, provided that, where there is a lease in effect, no action
may be instituted until the lease expires;
e. For an action alleging refusal of acceptance of reasonable lease changes under subsection i. of
section 2, one month's notice prior to institution of action;
f. For an action alleging any grounds under subsection l. of section 2, two months' notice prior to
the institution of the action and, provided that where there is a written lease in effect no action shall
be instituted until the lease expires;
g. For an action alleging any grounds under subsection k. of section 2, three years' notice prior to
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the institution of action, and provided that where there is a written lease in effect, no action shall be
instituted until the lease expires.
h. In public housing under the control of a public housing authority or redevelopment agency, for
an action alleging substantial breach of contract under paragraph (2) of subsection e. of section 2,
the period of notice required prior to the institution of an action for possession shall be in
accordance with federal regulations pertaining to public housing leases.
The notice in each of the foregoing instances shall specify in detail the cause of the termination of
the tenancy and shall be served either personally upon the tenant or lessee or such person in
possession by giving him a copy thereof, or by leaving a copy thereof at his usual place of abode
with some member of his family above the age of 14 years, or by certified mail; if the certified letter
is not claimed, notice shall be sent by regular mail.
Case law provides that notices served upon a tenant, if not hand delivered, may be
done by simultaneously mailing the notice by certified mail and regular mail. It is always
a good practice to serve all notices by hand delivery and certified & regular mail. If a
Notice becomes an exhibit or evidence at a trial, it will be critical to prove how it was
served or delivered.
The latest court mandated forms are found on the NJ Judiciary web site at:
http://www.judiciary.state.nj.us/forms.htm
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AT TRIAL
THE RETURN DATE
After the court has served a copy of the Summons and Complaint upon
the tenant, a court date (return date/ trial date) is scheduled. The landlord is
generally notified of the date by post card.
The tenant is notified on the
Summons of the return date. On the return date, the court conducts a "calendar
call" to determine which parties are present and prepared to proceed with a
trial. If the landlord fails to appear, the case is dismissed "without prejudice,"
which means it can be re-filed without penalty. If the landlord appears and the
tenant fails to appear, the court will enter a "default" against the tenant.*
Thereafter a "judgment of possession" can be entered upon submission (within
30 days) of certain documents. As of November 1, 2001 NEW COURT RULES
went into effect unifying the practice of obtaining judgments of possession
throughout the state.
*The exceptions to the automatic default rule are (1) if the tenant is an
infant or incompetent person, or (2) the landlord acquired title to the premises
from the tenant or gave the tenant an option to purchase. In these events, proof
must be given in open court by the landlord in order to obtain a judgment of
possession.
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APPENDIX XI-T
CERTIFICATION BY LANDLORD
YOU MUST COMPLETE THIS PART:
NAME OF LANDLORD OR ATTORNEY:___________________________________
ADDRESS & PHONE:________________________________________________
Plaintiff
vs.
:
SUPERIOR COURT OF NEW JERSEY
:
LAW DIV., SPECIAL CIVIL PART
:
______________ COUNTY
:
Defendant
:
LANDLORD-TENANT DIVISION
DOCKET #LT-
YOU SHOULD COMPLETE PART A, PART B, OR BOTH, IF BOTH APPLY.
THAT DO NOT APPLY. PART C APPLIES TO ALL CERTIFICATIONS:
CROSS OUT ANY PARAGRAPHS
A.
[WHEN THE EVICTION IS BASED ON UNPAID RENT]
1. The tenant has failed to pay rent now due and owing in the amount of $
That
amount consists of basic rent of $
late charges of $
legal fees
relating to this action for eviction of $
filing fees and costs $
and other (specify)
2. All of the items listed above are included in the lease agreement as rent.
3.
All of those items are permitted by applicable federal, state and local laws
(including rent control or rent leveling, if applicable) to be included in the rent
for the purposes of this action.
B.
1.
[WHEN THE EVICTION IS BASED ON OTHER GROUNDS]
Eviction is sought because
2. I have attached a copy of all notices that have been served on the defendant.
3. The notices were served on the tenant(check one or more)__by ordinary mail,__by
certified mail, __personally, on the day of________________.
4. All of the facts stated in the notices are true.
C.
IN ALL CASES:
1. I have complied with the registration requirements of NJSA 46:8-27 et seq.
2. The tenant did not transfer ownership to me and I have not given the tenant an
option to buy the property.
3. The tenant is not in the military service of the United States nor any of its
allies, nor is the premises used for dwelling purposes of the spouse, a child or other
dependent of a person in the military service of the United States.
I, THE LANDLORD, CERTIFY THAT THE FOREGOING STATEMENTS MADE BY ME ARE TRUE. I AM
AWARE THAT IF ANY OF THE FOREGOING STATEMENTS MADE BY ME ARE WILFULLY FALSE, I AM
SUBJECT TO PUNISHMENT.
DATE:
[Note:
LANDLORD___________________
Appendix XI-T adopted July 18, 2001 to be effective November 1, 2001.1]
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APPENDIX XI-U
CERTIFICATION BY LANDLORD'S ATTORNEY
NAME OF ATTORNEY:_______________________________________________
ADDRESS & PHONE:________________________________________________
Plaintiff
:
SUPERIOR COURT OF NEW JERSEY
:
LAW DIV., SPECIAL CIVIL PART
:
vs.
:
______________ COUNTY
:
LANDLORD-TENANT DIVISION
:
:
Certification by
:
Landlord’s Attorney
:
Defendant
:
DOCKET #LT-
1.
I am the attorney for the landlord in this matter and make this
certification pursuant to rule 6:6-3(b) or Rule 6:64.
2.
The landlord has asserted that the tenant has failed to pay rent
now due and owing in this matter.
3.
I have reviewed the applicable federal, state and local law and
the written lease between the parties, and in my opinion the
charges and fees sought, other than the base rent, are permitted
to be included in the rent for purposes of this action.
I certify that the foregoing statements made by me are true. I am
aware that if any of the foregoing statements made by me are willfully
false, I am subject to punishment.
Date:
__________________________
Signature & Printed name
[Note: Appendix XI-U adopted July 18, 2001 to be effective November 1, 2001.1
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APPENDIX XI-V
CONSENT TO ENTER JUDGMENT (TENANT REMAINS)
Plaintiff
vs.
Defendant
:
:
:
:
:
:
:
:
SUPERIOR COURT OF NEW JERSEY
LAW DIV., SPECIAL CIVIL PART
:
DOCKET #LT-
______________ COUNTY
LANDLORD-TENANT DIVISION
Consent to Enter Judgment
Tenant to Stay in Possession
THE TENANT AND LANDLORD HEREBY AGREE THAT:
1. The Tenant shall pay to the Landlord $
which the Tenant
admits is now due and owing and AGREES TO THE IMMEDIATE ENTRY OF A JUDGMENT
FOR POSSESSION.
2. The Tenant shall pay the amount shown in paragraph 1 as follows:
a. $
immediately, which the Landlord admits receiving.
b.
The Tenant shall pay the rest of the amount shown in paragraph 1 as
follows:
3.
The Tenant also agrees to pay $___________each month as required by the
rental agreement, in addition to the payment required in paragraph 1,until this
settlement agreement is over.
4.
All payments made during the term of this agreement shall be applied
first to the rents that become due after today, and then they shall be
applied to pay the balance of the arrears stated in paragraph 1. If the
Tenant makes all payments required in paragraph 2b of this agreement, the
Landlord agrees not to request a warrant of removal. If the Tenant does not
make all payments required in paragraph 2b of this agreement, the Tenant
agrees that the Landlord, with notice to the tenant, may file a certification
stating when and what the breach was and that a warrant of removal may then
be issued by the clerk.
THIS MEANS THAT IF THE TENANT FAILS TO MAKE ANY PAYMENT THAT IS REQUIRED IN
PARAGRAPH 2b OF THIS AGREEMENT, THE TENANT MAY BE EVICTED AS PERMITTED BY LAW
AFTER THE SERVICE OF THE WARRANT OF REMOVAL.
5.
This agreement shall end when the Tenant has paid the full amount of
rent stated in paragraph 1 and then the judgment shall be vacated and the
complaint shall be dismissed.
DATE: _____________
Landlord's Attorney__________________ Tenant's Attorney____________________
Landlord_____________________________
Tenant_______________________________
NOTE: THE CERTIFICATION BY LANDLORD AND THE CERTIFICATION OF LANDLORD'S
ATTORNEY (IF THE LANDLORD HAS AN ATTORNEY) ARE ATTACHED HERETO.
[Note: Appendix XI-V adopted July 18, 2001 to be effective November 1, 2001.]
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APPENDIX XI-W
CONSENT TO ENTER JUDGMENT FOR POSSESSION (TENANT VACATES)
Plaintiff
vs.
Defendant
:
:
:
:
:
:
:
:
:
SUPERIOR COURT OF NEW JERSEY
LAW DIV., SPECIAL CIVIL PART
_________________ COUNTY
LANDLORD-TENANT DIVISION
Consent to Enter Judgment
Tenant Required to Vacate
DOCKET #LT-
THE TENANT AND LANDLORD HEREBY AGREE THAT:
1.
2.
The Tenant AGREES TO THE IMMEDIATE ENTRY OF A JUDGMENT FOR POSSESSION.
Check one of the following:
A._________ The Tenant shall pay no money, or
B._________ The Tenant shall pay $______________, as follows:
3. A. If the Tenant does not make all payments required in paragraph 2 of
this Agreement, the Tenant agrees that the Landlord, with notice to the
tenant, can file a certification stating when and what the breach was and
that a warrant of removal will then be issued by the clerk.
B.
EVEN IF THE TENANT DOES MAKE ALL PAYMENTS REQUIRED IN PARAGRAPH 2, THE
TENANT STILL AGREES TO MOVE NO LATER THAN ________________________. IF
THE TENANT DOES NOT MOVE BY THAT DATE, LANDLORD CAN HAVE
THE TENANT
EVICTED AS PERMITTED BY LAW.
DATE: _____________
Landlord's Attorney __________________
Tenant's Attorney_____________________
Landlord_____________________________
Tenant_______________________________
NOTE: THE CERTIFICATION BY LANDLORD AND THE CERTIFICATION OF LANDLORD'S
ATTORNEY (IF THE LANDLORD HAS AN ATTORNEY) ARE ATTACHED HERETO.
(Note: Appendix XI-W adopted July 18, 2001 to be effective November 1, 2001.]
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SETTLING YOUR CASE IN COURT
The courts look favorably upon settlements between parties. Whether it is
between pro se litigants or attorneys, the court encourages settlement. Practices in the
various counties of the state have shown that judges handle the filing and review of
settlement agreements in a variety of manners. If you are unfamiliar with a particular
court's practice, check with the judge's law clerk assigned to hear the case to ensure
proper compliance with the filing requirements of a settlement agreement.
Some counties require the parties to meet with a mediator if they cannot settle
the issues between themselves. It used to be common practice that parties would settle
their case before they went to court, since there was no requirement that the parties
appear in court if they agreed on the terms of a settlement. Unless the parties have
settled and agreed to dismiss the case prior to the trial date, it is best to appear in court
to properly "process" the settlement since court rules require the courts to review
agreements. In any event it is best to reduce any agreement to writing. It is important
be cognizant of the steps one must follow if a tenant breaches an agreement when
applying for a warrant.
20
THE CONTESTED CASE
On the return date, if the landlord and tenant appear and cannot settle the
issues (and have participated in mediation if required), the case will be heard by the
court without a jury. The individuals that will provide testimony (evidence) to the court
will be sworn or will have to affirm under the penalty of perjury, to tell the truth.
The plaintiff begins and will have the burden of proving, by a preponderance of
the credible evidence, each allegation contained in the complaint.
Even though the
Landlord/Tenant court is technically a division of the Superior Court, the Rules of
procedure and evidence are relaxed, BUT NOT SUSPENDED!
As a plaintiff/landlord, it is a boon to your case to BE PREPARED!
When your case is presented to the court, you must be able to clearly articulate your
proofs. If the parties are appearing pro se, most judges will begin questioning the
parties to narrow the issues.
As an attorney representing the landlord of the hypothetical ABC Park Apts., an
examination of the witness may typically proceed as follows:
Q.
What is your relationship to ABC Park Apts.?
Q.
Where is ABC Park Apts. located?
Q.
Is the defendant a tenant at ABC Park Apts.?
Q.
What apartment does the defendant reside in?
Q.
Is that pursuant to a written lease agreement?
Q.
Did the tenant violate the agreement?
Q.
How did the tenant violate the agreement?
If, for instance, the tenant failed to pay rent, the questions would continue:
Q.
What is the total rent due and owing?
21
Q.
How did you arrive at that amount?
Q.
Is the property properly registered?
Q.
Is the tenant still in possession of the premises?
Q.
Are you seeking a judgment of possession?
If the landlord is seeking to terminate the tenancy for cause other
than non-payment, the questions may be modified as follows:
Q.
Has the tenant violated the lease?
Q.
What paragraph?
Q.
What did the tenant do that violated that provision?
Q.
Was a Notice to cease served upon the tenant? How? When?
Q. Did the tenant cease the acts complained of?
Q.
Was a Notice to Quit served upon the tenant? How? When?
The witness should always be able to identify all documents referred to in their
testimony. After identification, each should be marked into evidence so the judge can
refer to them.
If you are a pro se litigant, simply provide the court with the answers to the
foregoing questions. You will appear highly credible, make the court's job easier, and
gain favor with the judge while on the way towards winning your case.
If you attempt to introduce extraneous matters, you will lose credibility and hurt
your case. For instance, if it is a non-payment of rent action, DO NOT begin telling the
court about how the tenant has been disorderly, drug dealing, or committing "terroristic
threats" against the landlord. Even though these are all valid grounds to evict under the
Anti-Eviction Act, they are irrelevant in a non-payment of rent case.
22
COMMON DEFENSES TO EVICTION
(1)
HABITABILITY
All leases of residential real property include an implied warranty of
habitability. The seminal New Jersey Supreme Court decision is Marini v. Ireland, 56
N.J. 130 (1970) which involved the right to repair and deduct. In Marini, a tenant's toilet
broke. Two days later she called a plumber who repaired the toilet. She then deducted
from her rent the cost of the repair.
The landlord subsequently sought to evict her for
non-payment of rent.
The court dismissed the Complaint and expanded the implied warranty of
habitability by allowing the tenant the right to make repairs and deduct the cost from
tenant's rent. Portions of the case read as follows:
In a modern setting, the landlord should in a residential letting be
held to an implied covenant against latent defects which is
another manner of saying habitability and livability fitness.
Actually it is a covenant that at the inception of the lease, there
are no latent defects in facilities vital to the use of the premises
for residential purposes because of faulty original construction or
deterioration from age or normal usage. And further it is a
covenant that these facilities will remain in usable condition
during the entire term of the lease. In performance of this
covenant the landlord is required to maintain those facilities in a
condition which renders the property livable.
In limiting the scope of the warranty, the court stated, "The nature of vital facilities
and the extent and type of maintenance and repair required is limited and governed by
the type of property rented and the amount of rent reserved."
The tenant's right to repair and deduct was stated clearly:
23
If, therefore, after appropriate notice a landlord fails to make the
repairs and replacements of vital facilities necessary to maintain
the premises in a livable condition for a period of time adequate
to accomplish such repair and replacements, the tenant may
cause the same to be done and deduct the cost thereof from
future rents. The tenant's recourse to such self-help must be
preceded by timely and adequate notice to the landlord of the
faulty condition in order to accord him the opportunity to make
the necessary replacement or repair. If the tenant is unable to
give such notice after a reasonable attempt, he may nonetheless
proceed to repair or replace.
If, on the return date of a non-payment of rent case, a tenant raises a "Marini"
defense and has not effectuated the repairs, they must be prepared to deposit with the
court all of the base rent which is due. The court will not require the tenant to pay late
charges, legal charges, or the like if the court agrees to entertain the tenant's position.
If the tenant is unable to "post" the base rent that is due, the court will generally not
allow a Marini defense to proceed.
If the tenant is prepared to post the rent, various things can happen. Generally,
the court strives to have litigants resolve their differences between themselves.
Towards that end, the court may direct the tenant to provide the landlord with a written
list of items which the tenant claims is in need of repair.
The tenant will then be
required to deposit the rent that is due with the clerk of the court pending the repairs. If
the repairs are made to the satisfaction of the tenant, (i) it can be agreed between the
parties that the money on deposit be released to the landlord; or (ii) the tenant may
request a Marini hearing to try to obtain an abatement in their rent for the period of time
they claim the unit was uninhabitable. An abatement may be granted based upon a
judge's appraisal of the diminution in the value of the use of the premises for the period
the defect existed.
24
The tenant's Marini defense must directly affect the habitability of the premises.
Potholes in the driveway or peeling paint on the outside of a house would not likely
qualify. Failure to provide heat, hot water, plumbing or sewerage disposal renders the
premises unsuitable for human habitation and clearly meets the Marini criteria.
Some factors to be considered in determining whether defects affect habitability
of premises (and thus can be considered in determining amount of rent abatement) are
whether the condition violates applicable housing code or sanitary regulations, whether
the condition affects vital facility, the effect of the condition on safety and sanitation, the
duration of the condition, the age of the structure, the amount of rent, and whether the
tenant waived the right to object to the condition or was responsible for the condition.
C.F. Seabrook Co. v. Beck, 174 N.J. Super. 577, 417 A. 2d 89 (A.D. 1980).
In Chess v. Muhammad, 179 N.J. Super. 75, 430 A. 2d 928 (A.D. 1981) the
court held that tenants were not entitled to an abatement in a summary dispossess
action for failure by the tenant to pay rent when the landlord repaired a defective
condition within a reasonable time after learning of its existence.
In another case on point, a court said the failure by a landlord in a multistoried
building to supply heat, hot water, garbage disposal, or elevator service was a breach of
implied “covenant of habitability and could be considered in diminution of rent; but the
malfunction of Venetian blinds, water leaks, wall cracks and lack of painting were
primarily amenities” and would not be considered in diminution of rent.
Academy
Spires, Inc. v. Brown, 111 N.J. Super. 477, 268 A. 2d 556 (1970).
(2)
RETALIATION OR REPRISAL
New Jersey Statute 2A:42-10.10 provides that no landlord of residential
premises, except owner occupied with not more than 2 rental units, shall serve a notice
25
to quit upon any tenant or institute any action against a tenant to recover possession of
premises:
a. As a reprisal for the tenant's efforts to secure or enforce any rights
under the lease or contract, or under the laws of the State of New
Jersey or its governmental subdivisions, or of the United States; or
b. As a reprisal for the tenant's good faith complaint to a governmental
authority of the landlord's alleged violation of any health or safety law,
regulation, code or ordinance, or State law or regulation which has as
its objective the regulation of premises used for dwelling purposes; or
c. As a reprisal for the tenant's being an organizer of, a member of, or
involve din any activities of, any lawful organization; or
d. On account of the tenant's failure or refusal to comply with the
terms of the tenancy as altered by the landlord, if the landlord shall
have altered substantially the terms of the tenancy as a reprisal for any
actions of the tenant set forth in subsection a, b and C. Substantial
alteration shall include the refusal to renew a lease or to continue a
tenancy of the tenant without cause.
Under subsection b of this section the tenant shall originally bring his
good faith complaint to the attention of the landlord or his agent and
give the landlord a reasonable time to correct the violation before
complaining to a governmental authority.
A landlord shall be subject to a civil action by the tenant for damages and other
appropriate relief, including injunctive and other equitable remedies, as may be
determined by a court of competent jurisdiction in every case in which the landlord has
violated this statute.
(3) WAIVER
The issue of wavier most commonly arises when tenants (i) have pets in violation
of a lease or, (ii) pay rent habitually late in violation of a lease. The rule is that where a
landlord has knowledge of a cause for forfeiture (eviction) and he continues to
recognize the tenant and the existence of the lease, he waives the forfeiture.
26
In simple terms, if you have a right to evict a tenant on one of the statutory
grounds for a summary dispossess action, and you delay exercising that right, it may be
waived. Waiver is a question of fact, not law, for a court to determine. There are a
number of court decisions on this issue. The clearest example of a landlord waiving its
right to evict would be the acceptance of rent from a tenant after a court has entered a
judgment of possession without first entering into a written consent judgment.
If a landlord serves a Notice to Quit upon a tenant (which as you know should
contain a demand for possession) and then accepts rent after the service of the notice,
the landlord has waived its right to proceed against the tenant based on that notice.
Burstein v. Liberty Bell Village, Inc., 120 N.J. Super. 54, 293 A.2d 283 (1972) I have
seen landlords do this unknowingly.
Tenants do not generally know the landlord is
precluded from accepting the rent. Despite receiving a valid Notice to Quit, tenants may
attempt to pay their rent in the usual manner. Whenever a Notice to Quit is served upon
a tenant, a landlord should not accept rent. But all is not always lost, if the landlord
receives and processes such a rent payment.
If a landlord has served a Notice to Quit, and the tenant delivers payment to a
landlord's representative, mails in the rent, or drops it into a lockbox of the landlord's
designed for that purpose, the payment should be returned immediately. If the payment
was negotiated (cashed), a landlord can mail one of its own checks back to the tenant
with a brief explanatory letter. Otherwise, depending on the statutory section the tenant
violated, a landlord may be able to serve a new Notice to Quit.
A leading New Jersey case on waiver provided that where the sale of bus tickets
had been engaged in by tenant for a long time to landlord’s knowledge and during that
time regular rent had been tendered and accepted, the landlord waived alleged
27
breaches of use covenant resulting from sale of tickets; equity and good conscience
would require reasonable notice from the landlord to the tenant to discontinue the
practice and from thenceforth to abide by use limitations of the lease and, unless such
notice was served and bus tickets sold thereafter, equity should bar forfeiture of the
lease on basis of the sale of tickets. Carteret Properties v. Variety Donuts, Inc., 49
N.J. 116, 228 A. 2d 674 (1967).
(4)
UNCONSCIONABILITY
A tenant may raise the defense of unconscionability when a landlord seeks to
impose new terms upon the tenant that did not previously exist. This is generally seen
in the context of a rent increase that the tenant feels is unreasonable. In New Jersey, a
number of municipalities have rent control ordinances, limiting the percentage a landlord
may increase a tenant's rent.
As another example, I argued and won a case in the Appellate Division of the
Superior Court for a landlord who discontinued the use of a central "air conditioning"
type system in a 50 unit apartment building. Some tenants refused to sign a renewal
lease that did not obligate the landlord to provide this service. The tenants contended
that an unconscionable lease change had been foisted upon them.
The landlord
contended that the change was out of necessity (the old system was damaging the
building from leaky pipes in the walls), and the tenants were free to install their own air
conditioners. The Appellate Division found that the lease was reasonable even though
it did not obligate the landlord to provide a service as it had previously.
28
(5)
BANKRUPTCY
The filing of a petition in bankruptcy (Federal Court) stays any case in State
Court, against the filing party.
If a landlord seeks to pursue a tenant during the
pendency of a tenant's bankruptcy proceedings, they must apply to the Bankruptcy
court for permission to pursue the tenant in bankruptcy court, or ask the Bankruptcy
court for permission to pursue the eviction action in State Court.
Briefly, in bankruptcy, a lease must either be “assumed” or “rejected.” If it is
assumed by the tenant, the landlord will be paid all rent that is due. If it is rejected by
the tenant, the landlord has a right to take possession.
In either event, if a tenant
ceases paying rent, a landlord should move expeditiously after a bankruptcy filing by a
tenant to vacate the Automatic Stay so that possession of the premises may be
recovered.
Section 311 of the Bankruptcy Reform Act of 2005 amends Code sec. 362(b)
to provide that certain new exceptions from the automatic stay are established for
landlords seeking to evict tenants.
The first exception to the stay, Code sec. 362 (b)(22) allows the continuance of
any eviction proceeding involving the debtor’s residential property in which the landlord
obtained a judgment of possession prior to the filing of the bankruptcy petition. 362(l) of
the Code allows a tenant to deposit all of the rent that is due with the clerk of the court.
This would enable a tenant to make an application for relief from the judgment of
possession with the tenancy court.
The second exception to the stay, Code sec. 362(b)(23) deals with evictions
based on “endangerment” of the premises or “illegal use of controlled dangerous
substances” at the rented premises. This section would apply if the eviction proceeding
29
was commenced before the filing of the bankruptcy case, or if the endangerment or
illegal use occurred within 30 days before the bankruptcy filing.
In either case, the landlord is required to file a certification with the bankruptcy
court setting forth the facts the landlord alleges give rise to the exception, and the
debtor would be able to contest the application.
(6)
TRANSFER TO SUPERIOR COURT
I have included “transfer to Superior Court” under defenses, but it is more aptly
entitled “claim for off set.” Because actions in the Landlord/Tenant court are summary
proceedings, and the jurisdiction of the court is limited to awarding possession of the
premises, the Rules of Court provide that a tenant may make a claim for relief which
exceeds the Jurisdiction of the Special Civil Part by having the case transferred to the
general jurisdiction of the Law Division. This procedure requires the tenant to file and
serve a motion in the Landlord/Tenant Court. The leading case in New Jersey for the
factors and standards considered on a removal motion is the 1970 case of Morroco v.
Felton, 112 N.J. Super. 226.
The recent trend in the landlord/tenant courts is away
from favoring the transfer. That is, the tenancy court judges are retaining jurisdiction
over the cases.
Generally the judges allow the parties to engage in limited discovery
which is otherwise not contemplated in the Court Rules of procedure in summary
dispossess cases.
(7)
LANDLORD REGISTRATION ACT
As explained in detail above, if a
landlord fails to comply with the Landlord Registration Act, a judgment of possession
may not enter.
30
(8)
SECURITY DEPOSIT ACT
If the landlord fails to notify the tenant of
the location of the tenant's security deposit within 30 days after receipt, the tenant may
elect to apply the deposit to the current rent due. See a detailed discussion of security
deposits above.
(9)
RELOCATION ASSISTANCE
When a landlord seeks to permanently
board up or demolish the rented demised premises because of housing or health code
violations, the Anti-Eviction Act, subsection (g) provides that no warrant of removal shall
be issued until the Tenant Relocation Assistance Act (N.J.S.A. 52:31B1 and 20:4-1)
provisions have been met.
(10)
PAYMENT OF RENT
By far, the most common defense tenants raise
to a landlord’s allegation of non-payment of rent, is payment. The law provides:
That if a tenant pays the outstanding rent together with the accrued costs of the
proceedings, he may have the proceedings dismissed, Community Realty
Management, Inc. v. Harris, 155 N.J. 212, 714 A.2d 282 (1998), and N.J.S.A. 2A:1855.
(11)
No Right of Reentry Reserved
When
a
landlord
seeks
to
terminate a tenant’s right to possession of demised premises based upon the breach of
a lease covenant (or lease term) the lease must contain a reservation in the landlord to
the right of reentry for such breach. Absent such a reservation of rights, the landlord’s
only recourse is to sue for money damages in a breach of contract case.
(12)
Requirements for an Attorney
Unless the landlord is a sole proprietor or a partner in a general partnership, an attorney
must be used to file the court papers AND appear in court on the landlord’s behalf. If
31
a corporation or an LLC either files papers or appears in court without legal counsel the
case is subject to being dismissed for violation of Court Rules (Cited in an earlier
section of this manual.)
(13)
Improper, Missing, or Defective Notice to Cease and/or Quit
A properly formatted Notice to Quit, and Notice to Cease, if required, is a jurisdictional
prerequisite to the entry of a judgment for possession under most grounds of the AntiEviction Act. If any required Notice was not served, the Complaint MUST be dismissed
and a Landlord will have to start the eviction procedure over.
32
AFTER TRIAL
(A)
ENTRY OF A JUDGMENT AND EXECUTION
After trial, there can only be one of two results: (1) possession is awarded to the
landlord, or (2) possession remains with the tenant, i.e. "case dismissed!" If judgment is
awarded in favor of the landlord, the landlord has 30 days to request a "Warrant of
Removal" to be issued by the court clerk. In addition to a fee for the warrant an Affidavit
or Certification of non-military service must be filed with the request.
The earliest the application for a Warrant of Removal may be submitted in
a residential OR commercial eviction is three days after the judgment date.
In a
commercial setting the judgment may be executed immediately after it is issued. A
landlord in New Jersey CANNOT use "self help" and conduct the lock out themselves at
any time. A Superior Court Officer, known as a Constable, must be used. If more than
30 days have elapsed since the date the judgment of possession was entered, and the
parties have not entered into a post-judgment agreement, the Warrant may only be
obtained with the consent of the tenant or by Order of the Court after notice is given to
the tenant that the landlord is so applying.
After the Warrant is issued, it is "served." This is accomplished by the
Constable hand delivering it to the tenant, or by posting it on the tenant's door. The
Warrant must contain a "3-day" notice to the tenant advising that the lockout is
scheduled to occur, and it also advises the tenant of the right to apply for a stay of
execution.
That is all pursuant to the "Fair Eviction Notice Act" (N.J.S.A. 2A:42-
10.16) The Warrant may not be executed until the third day following service.
Saturdays, Sundays and holidays are not included. The effect of this is that the tenant
33
can remain in the demised premises for a minimum of 8 days after the entry of a
judgment of possession before they are locked out.
(B)
STAYS OF EXECUTION
(1)
BY COURT ORDER
New Jersey statutes permit the court to "stay" (postpone) the issuance
and/or execution of a warrant of removal for up to 6 months after judgment of
possession is entered in favor of a residential landlord. The stay may be granted if it
appears that the tenant will "suffer a hardship because of the unavailability of other
dwelling accommodations." The relief lies with the discretion of the judge. Pursuant to
statutes, the stay may be granted so long as:
(a)
all rent and court costs are paid;
(b)
the tenant is not disorderly;
(c)
the tenant does not willfully damage the premises; and
(d)
rent is paid as it becomes due.
Typically a court does not issue a stay of eviction on the initial return date of a
Summons & Complaint after a judgment of possession is awarded to the Landlord.
Rather, it forces the tenant to go home and try to secure alternative living quarters. If
they are unsuccessful, the tenant must then return to court and file an application for an
Order to Show Cause. An Order to Show Cause in the realm of landlord/tenant court is
an application filed by the tenant, which, if granted, directs the landlord to appear in
court to be heard as to why the tenant should not be relieved from the affects of the
judgment of possession.
The application by the tenant requires them to submit a
certification which the court considers and then either grants the application for the
34
Order to Show Cause or signs an Order for Orderly Removal which gives the tenant up
to 7 days more from the date of the scheduled lockout to vacate the premises.
(2)
ORDER FOR ORDERLY REMOVAL
After the entry of a judgment of possession and issuance of a Warrant of
Removal, the tenant can seek “a few more days” to move from the court pursuant to
court rule.
R.
6:6-6.
Post-Judgment Levy
Exemption
Applications for Relief in Tenancy Actions
Claims
and
•
(a) Generally. Rules 4:52-1 and 4:52-2 shall apply to post-judgment applications
for relief in tenancy actions and to claims of exemption from levy in other actions
in the Special Civil Part, except that the filing of briefs shall not be required.
•
(b) Orders for Orderly Removal. An order for post-judgment relief, applied for
on notice to a landlord pursuant to paragraph (a) of this rule, need not have a
return date if the sole relief is a stay of execution of a warrant of removal for
seven calendar days or less, but it shall provide that the landlord may move for
the dissolution or modification of the stay on two days' notice to the tenant or
such other notice as the court sets in the order.
•
(c) Orders to Release Levies on Exempt Funds. An order to release a levy on
funds because they are exempt from execution, levy or attachment under New
Jersey law or federal law shall require the third-party garnishee to refund to the
judgment-debtor all fees incurred as a result of the levy. However, if the court
determines that the judgment-creditor at whose instance the levy was made
knew or should have known that the funds were exempt from execution, levy or
attachment, the order can require that party to reimburse the judgment-debtor for
such fees.
•
(d) Forms. Forms for applications for post-judgment relief in tenancy actions and
claims of exemption from levy in other actions shall be available to litigants in the
clerk's office.
35
VACATING A JUDGMENT
On the return date of an Order to Show Cause, the court will consider whether
or not to vacate the judgment of possession. If the judgment of possession was based
upon nonpayment of rent, and the tenant deposits into court on the original return date
all of the rent and court costs due, the judgment must be vacated by statute. But what if
the tenant has the money a few days later?
In that case, the court can consider
extraneous factors the landlord may present regarding the tenant. A suggested strategy
to defeat a tenant's applications to vacate a judgment, even when they have all of the
rent money, is by showing that the tenant has been brought to court before. It is even
more favorable to the landlord when the tenant has brought Orders to Show Cause in
the past. A court may be constrained to give the tenant another "break." The following
1994 New Jersey Supreme Court case of Housing Authority of Morristown v. Little,
135 N.J. 274, deals with the court's ability to vacate a default judgment under the court
Rules. It is a very useful case to know and have on hand when dealing with a post
judgment application for relief.
The tenant is not limited by the 10-day statute from making a claim for
relief under the court Rules (R.4:50). This application must be made within a reasonable
time after judgment is entered.
It has been my experience that tenants seeking relief from the effects of a
judgment rely upon both the statutes and Rule to sway the court to find favor with their
position.
36
DISPOSING OF TENANT'S PERSONAL PROPERTY
A common question asked by landlords is, "When can we clean the unit out?"
On January 10, 2000 a concise set of statutes that deal with the disposition of a former
tenant’s personal property was enacted. The Statute provides as follows:
NJ ST 2A:18-72.
Disposal of remaining property abandoned by tenant
A landlord of commercial or residential property, in the manner provided by P.L.1999, c. 340
(C.2A:18-72 et al.), may dispose of any tangible goods, chattels, manufactured or mobile homes or other
personal property left upon a premises by a tenant after giving notice as required by section 2 of P.L.1999, c.
340 (C.2A:18-73), only if the landlord reasonably believes under all the circumstances that the tenant has left
the property upon the premises with no intention of asserting any further claim to the premises or the
property and:
a.
A warrant for removal has been executed and possession of the premises has been
restored to the landlord; or
b. The tenant has given written notice that he or she is voluntarily relinquishing possession of
the premises. The provisions of P.L.1999, c. 340 (C.2A:18-72 et al.) shall not apply to the
disposal of tenant property left on nonresidential rental property if there is a lease in
effect which has been duly executed by all parties which contains specific terms and
conditions for the disposal of tenant property.
Amended by L.2001, c. 51, § 1, eff. April 9, 2001 Legislation, in subsec. b., added "The provisions of P.L.1999,
c.340 (C.2A:18-72 et al.) shall not apply to the disposal of tenant property left on nonresidential rental property if
there is a lease in effect which has been duly executed by all parties which contains specific terms and conditions for
the disposal of tenant property."
NJ ST 2A:18-73 Notice to tenant prior to disposition
NJ ST 2A:18-74 Contents of notice
NJ ST 2A:18-75 Storing abandoned property
NJ ST 2A:18-76 Conditions under which the property is deemed abandoned
NJ ST 2A:18-77
Tenants reimbursement for storage costs
NJ ST 2A:18-78
Disposal of property, options
NJ ST 2A:18-79
Immunity
NJ ST 2A:18-80
Deductions from sale proceeds
NJ ST 2A:18-81
Compliance with act constitutes complete defense
NJ ST 2A:18-82
Noncompliance with act; tenants recovery
NJ ST 2A:18-83 Applicability of act
NJ ST 2A:18-84 Nonapplicability to motor vehicles
NJ ST 39:4-56.6 Unattended vehicles
No person shall park or leave unattended a vehicle on private property without the consent of the
owner or other person in control or possession of the property or for a period in excess of that for which
consent was given, except in the case of emergency or disablement of the vehicle in which case the owner or
37
operator thereof shall arrange for the expeditious removal of the vehicle. This section shall not apply to
manufactured or mobile homes left unattended and for which there exists or existed a rental agreement to
occupy a space on the property.
The owner or other person in control or possession of the property on which a vehicle is parked or
left unattended in violation of this section may remove or hire another person to remove and store the vehicle.
It shall be the obligation of the owner of the vehicle to pay the reasonable costs for the removal and for any
storage which may result from such removal before he shall be entitled to recover the possession of the
vehicle. If the owner of the vehicle refuses to pay such costs or fails to make any claim for the return of the
vehicle within 90 days after such removal, the vehicle may be sold at public auction in accordance with the
provisions of N.J.S.2A:44-20 through N.J.S. 2A:44-31.
Prior to this new law, a landlord was under no duty to care for property that a tenant left
behind.
38
12/3/2013
OVERVIEW OF LANDLORD TENANT LAW IN NJ
NYCLA CLE INSTITUTE
DECEMBER 5, 2013
PRESENTED BY:
BRUCE GUDIN, ESQ. EHRLICH PETRIELLO GUDIN & PLAZA, P.C., NEWARK, NJ
EVICTIONS
• Self‐help eviction of residential tenants is prohibited by the Tenant Hardship Act (N.J.S.A. 2A:39‐1)
• Self‐help eviction of a commercial tenant is not prohibited by statute, but would be deemed unconstitutional based on current case law
PREREQUISITES
•
•
•
•
•
•
•
Landlord/Tenant Relationship
Lawful Premises ‐ *Residential *Commercial
Residential Landlord Registration Act NJSA 46:8‐28 Commercial Premises – No registration required
1 , 2 & 3 Family Houses
Multi‐family Dwellings
Lease Notice Requirements 1
12/3/2013
GROUNDS FOR REMOVAL OF A RESIDENTIAL TENANT pursuant to NJSA 2A:18‐61.1
•
•
•
•
•
•
•
•
•
•
(A) NONPAYMENT RENT DUE AND OWING
(B) DISORDERLY TENANT
(C) WILLFUL OR GROSSLY NEGLIGENT
DESTRUCTION OF THE PREMISES
(D) SUBSTANTIAL BREACH OF LANDLORD’S
RULES OR REGS.
(E) SUBSTANTIAL VIOLATION OF LEASE
COVENANTS
(F) FAILURE TO PAY RENT AFTER REASONABLE
INCREASE
(G) ABATING HOUSING OR HEALTH CODE
VIOLATIONS
(H) PERMANENTLY RETIRING BUILDING FROM
HOUSING MARKET
(I) TENANT’S REFUSAL TO ACCEPT REASONABLE
LEASE CHANGES
(J) HABITUAL LATE PAYMENT OF RENT
•
•
•
•
•
•
•
(K) CONVERSION TO CONDOMINIUM OR COOPERATIVE
(L) OWNER SEEKS TO PERSONALLY OCCUPY UNIT OR SELL UNIT TO PERSON WHO INTENDS TO PERSONALLY OCCUPY (M) TENANCY CONDITIONED ON EMPLOYMENT BY LANDLORD
(N) CONVICTION FOR DRUG USE, POSSESSION, MANUFACTURE, ETC.
(O) CONVICTION FOR ASSAULT/TERRORISTIC THREATS
(P) DRUG OFFENSE OR TERRORISTIC THREATS‐
NO CONVICTION
(Q) THEFT FROM THE LANDLORD OR OTHER TENANTS
PRE‐SUIT NOTICE REQUIREMENTS
Residential Tenancies
Notice Requirements Under The Anti‐Eviction Act is pursuant to NJSA 2A:18‐61.2
•
•
•
a. For an action alleging disorderly conduct under subsection b, or injury to the premises under subsection c, or any grounds under subsection m, n, o or p, three days' notice prior to the institution of the action for possession;
b. For an action alleging continued violation of rules and regulations under subsection d, or substantial breach of covenant under subsection e, or habitual failure to pay rent, one month's notice prior to the institution of the action for possession;
c. For an action alleging any grounds under subsection g, three months' notice prior to the institution of the action;
•
d. For an action alleging permanent retirement under subsection h, 18 months' notice prior to the institution of the action and, provided that, where there is a lease in effect, no action may be instituted until the lease expires;
•
•
•
e. For an action alleging refusal of acceptance of reasonable lease changes under subsection i, one month's notice prior to institution of action;
f. For an action alleging any grounds under subsection l, two months' notice prior to the institution of the action and, provided that where there is a written lease in effect no action shall be instituted until the lease expires;
g. For an action alleging any grounds under subsection k, three years' notice prior to the institution of action, and provided that where there is a written lease in effect, no action shall be instituted until the lease expires.
GROUNDS FOR REMOVAL OF A COMMERCIAL TENANT
pursuant to NJSA 2A:18‐53
(a) Holdover after expiration of the lease term
(b) Nonpayment of Rent due and Owing
(c)(1) Disorderly Tenant
(c)(2) Damage or Injury to the Premises
(c)(3) Violation of rules and regs. accepted in writing at the commencement of the Lease
• (c)(4) Breach of lease covenant where right of re‐
entry reserved
•
•
•
•
•
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PRE‐SUIT NOTICE REQUIREMENTS
Commercial Tenancies
Notice Requirements Under Summary Dispossess Act
18‐53(a) Holdover ‐ 3 months if tenancy at will
18‐53(b) Nonpayment of Rent due and Owing ‐ None
18‐53(c)(1) Disorderly Tenant ‐ 3 days prior to filing suit 18‐53(c)2) Damage/injury Premises ‐ 3 days prior to filing suit
18‐53(c)(3) Violation of rules and regs. accepted in writing ‐ 3 days prior to filing suit • 18‐53(c)(4) Breach of lease covenant where right of re‐entry reserved ‐ 3 days prior to filing suit
•
•
•
•
•
COMMENCING THE CASE
• ANTI‐EVICTION ACT
(N.J.S.A. 2A:18‐61.1)
The Anti‐Eviction Act applies to (i) residential properties if the owner (landlord) does not live there or (ii) if the owner does live there and there are more than two other rental units.
• SUMMARY DISPOSSESS ACT
(N.J.S.A. 2A:18‐53)
The Summary Dispossess Act applies to all other rental or residential properties including commercial tenancies. SUMMONS AND COMPLAINT
for
EVICTION
New Jersey Court Rules Appendix XI‐B per R. 6:2‐1
• Summons (http://www.judiciary.state.nj.us/civil/forms/10822.pdf)
– Detailed address or description
• Complaint (http://www.judiciary.state.nj.us/civil/forms/11252_verified_complaint.pdf)
– Pleadings
• Landlord acquires title from tenant or tenant has an option to purchase (See R. 6:3‐4.)
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RETURN DATE
•
•
•
•
WHO MAY APPEAR IN COURT
COURT PROCEEDINGS
SETTLEMENTS
CONTESTED CASES ‐ TRIALS
COMMON DEFENSES TO EVICTION
•
•
•
•
•
•
•
•
•
•
•
•
•
HABITABILITY‐MARINI V. IRELAND
RETALIATION OR REPISAL
WAIVER
UNCONSCIOINABILITY
BANKRUPTCY
TRANSFER TO SUPERIOR COURT‐LAW DIVISION
LANDLORD REGISTRATION ACT
SECURITY DEPOSIT ACT
RELOCATION ASSISTANCE
PAYMENT OF RENT
NO RIGHT OF REENTRY RESERVED
REQUIREMENTS FOR AN ATTORNEY
IMPROPER, MISSING, OR DEFECTIVE NOTICE TO CEASE AND/OR QUIT
POST TRIAL
• ENTRY OF A JUDGMENT AND EXECUTION
– Warrant for Removal
• STAYS OF EXECUTION
– By Court Order (Orders to Show Cause)
– Orderly Removal
• VACATING A JUDGMENT
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12/3/2013
ABANDONED PROPERTY ACT
• A landlord of commercial or residential property may dispose of any tangible goods or personal property left upon a premises by a tenant after giving notice as required by N.J.S.A. 2A:18‐73 only if the landlord reasonably believes under all the circumstances that the tenant has left the property upon the premises with no intention of asserting any further claim to the premises or the property and:
– A warrant of removal has been executed and possession of the premises has been restored to landlord; or – Tenant has given written notice that they voluntarily relinquish possession of the premises
• Orders for orderly removal
10 THINGS TO KNOW WHEN GOING TO TENANCY COURT
1)
2)
3)
4)
5)
If Landlord present and tenant is not the case will be marked default and landlord may file the appropriate certifications to have a warrant of removal issued. If Tenant is present and Landlord is not the case will be dismissed.
In Non‐payment of rent cases a tenant has the right to pay the full amount of rent due and owing by the close of business on the day that the trial was scheduled for.
A Landlord may not evict a tenant for failure to pay any attorney’s fees, late charges or other amounts unless the lease deems these charges as “additional rent”.
Settlements should be reduced to writing and many courts require that a settlement be placed on the record in “open” court.
Every Tenant has the right to a trial before a judge, no jury in tenancy court.
6)
The Jurisdiction of the landlord/tenant court is limited to awarding judgment of possession to the landlord. There can never be a money judgment awarded.
7) A Warrant for removal may not be issued until 3 days after a judgment of possession is entered. Once a Warrant is served, a residential tenant is entitled to 72 hours to vacate.
8) Stays of execution of the Judgment for Possession can be granted by a Landlord, or a Judge.
9) The court maintains a list of Social Service Agencies that provide assistance to residential tenant’s. Generally, Courts consider “Promises to pay” and Vouchers as “money in the tenants hands.”
10) Before every calendar call an announcement is made. That can be found in the NJ Court Rules at Appendix XI‐S
CONCLUSION
*
5
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Bruce E. Gudin
Bruce E. Gudin, currently counsel to the New Jersey Property Owners Association (http://www.poanj.org/), was admitted to
practice law in 1989 after graduating from Yeshiva University's Benjamin N. Cardozo School of Law. Mr. Gudin attended
undergraduate at Farleigh Dickinson University in Teaneck, New Jersey and C.W. Post in Long Island, NY where he received
his B.S. Degree Magna Cum Laude in business. While attending C.W. Post he was awarded the Wall Street Journal Award for
outstanding academic performance.
Since graduating law school Mr. Gudin has been a frequent lecturer on the subjects of Debtor and Creditor Law, Credit and
Collections Risk Analysis, Landlord/Tenant Law, Residential and Commercial Evictions in New Jersey, Commercial Leasing
Considerations, and on Section 8 Housing in New Jersey. He regularly lectures for the National Business Institute
(http://www.nbi-sems.com/) as well as Lorman Education Services (http://www.lorman.com/). He has also presented
seminars on Landlord and Tenant matters to the New Jersey Institute For Continuing Legal Education
(http://www.njicle.com/).
Mr. Gudin is also an active member of the New Jersey Apartment Association (http://www.njaa.com/) where he regularly
consults on legislative issues affecting the multi-family housing industry.
AREAS OF PRACTICE
• Landlord/Tenant
• Collections & Repossessions
• Commercial Leasing
• Business & Commercial Law
• Real Estate Law
• Litigation & Appeals
• Municipal Court
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Bruce Gudin | Newark Attorney
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LITIGATION PERCENTAGE
• 80% of Practice Devoted to Litigation
BAR ADMISSIONS
• New Jersey, 1989
• New York, 1990
• U.S. District Court District of New Jersey, 1989
EDUCATION
• Yeshiva University Benjamin N. Cardozo School of Law, New York, New York
◦ J.D. - 1989
• Long Island University C.W. Post College, Brookville, New York
• B.S. (Magna Cum Laude) - 1986
• Fairleigh Dickinson University, Hackensack, New Jersey
PUBLISHED WORKS
• Residential & Commercial Evictions in New Jersey, National Business Institute, (1996-2007)
• Evictions & Landlord/Tenant Law in New Jersey, Lorman Education Services, (2000-2007)
• How to Get Results in Collection of Delinquent Debts in New Jersey, National Business Institute, 1997
• Handling Commercial Evictions, New Jersey Institute for Continuing Legal Education (ICLE), 2002
CLASSES/SEMINARS
• Evictions & Landlord/Tenant Law in New Jersey, Lorman Education Services, 2000 - Present
• Handling Commercial Evictions, New Jersey Institute for Continuing Legal Education (ICLE), 2002 - Present
HONORS AND AWARDS
• Recipient, Wall Street Journal Award
• Super Lawyers 2012-2013
PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS
• New York State Bar Association, Member
• New Jersey State Bar Association, Member
• American Bar Association, Member
• Commercial Law League of America, Member
• New Jersey Apartment Association, Member
• Property Owners Association, Member
• Lions Club International, Member
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