New Jersey Real Estate Attorney Blog

The matter of O'Neill v. Township of Tewksbury Zoning Board provides a lesson for property owners who rely on municipal Zoning Officials. Mark and Kathy Wood were delighted to learn that a municipal zoning ordinance stating that tennis courts could not be constructed within forty feet of a property line did not apply to them. Relying on the information provided to them by the Tewksbury Township zoning official, the Woods built a tennis court in their back yard. The only problem was that the zoning official had only read part of the ordinance.

In addition to side yard set-back requirements, most municipalities also apply a limit to impervious lot coverage. In other words, the foot print of all structures on a property cannot exceed more than a certain percentage of the entire property. Very early on, it became clear to the Wood family that the proposed tennis Court would cause them to exceed the limit for impervious lot coverage. The Zoning official, still not addressing the side yard set-back problems, advised the Woods that they would need a variance for the impervious lot coverage. The Woods instead addressed this problem by building their tennis Court using a pervious (porous) surface. This is a common solution employed by many home owners for not only Tennis Courts, but also for the use of sidewalks and patios. The municipal official did not address the more problematic issue that the proposed tennis court would not comply with the township's set-back requirements.

The trouble for the Wood family started when their neighbor, who had been away during the beginning of the construction, complained to the Zoning official. Shortly after the tennis court was completed, the Zoning officer issued a Notice of Violation to the Wood family. The Wood family argued that since a pervious surface was used, the set-back requirement did not apply. During this time, the tensions between the Woods and their neighbors escalated. The neighbors eventually filed a Court action seeking to force the Woods to remove their tennis court.

The Court dismissed the neighbors' action. After a second time of arguing with the municipality, the neighbors re-filed their action with the Court, this time disputing the zoning board's decision. The Court ordered the Woods to remove their tennis court. The Woods appealed the decision to New Jersey Appellate Division, who agreed with the lower Court that the township ordinance was very clear in its requirement that tennis courts in town be set back at least 40 feet from the property line.

In 2004, the New Jersey Legislature revised the Rent Security Deposit Act. Under the revised Act, there are three major components, which are very often misinterpreted by inexperienced landlords, tenants and their attorneys. In this week's article we will discuss and explain those provisions.

Initial Notification
The first component to the Act is initial notification. Within 30 days of being given a security deposit, the landlord must deposit the funds in an interest bearing account, containing no funds other than the tenant's security deposit, and the landlord must provide the tenant with written notice of the name of the bank, the rate of interest, the account number and the type of account. If the landlord fails to comply with any of these requirements within the specified time period, the tenant may apply his or her security deposit toward rent, with no further Notice or opportunity to cure to the landlord.

Annual Notification
Each year on the anniversary date of the lease, the landlord must send the tenant a reminder of the same information required in the initial notification. The landlord must also disburse any interest earned to the tenant. Under the annual notification requirement, there is no automatic forfeiture for non-compliance. Instead, the tenant must first provide the landlord with notice of the non-compliance. If the landlord still fails to provide the required notice or disbursement of interest within 30 days of the notice from the tenant, the security will be applied toward rent. Landlords should be forewarned under both of these provisions, that once the security deposit is applied toward rent, the landlord is not permitted to require the security deposit to be restored.

Disbursement upon move-out
Within 30 days of the tenant moving out, the landlord must either return the entire security deposit, along with any interest accrued to the tenant, or if there are any deductions, the landlord must provide the tenant with a written notification of why the appropriate portion has been withheld. In the event that a portion of the security deposit is wrongfully withheld, the tenant may bring suit against the landlord for double the portion of the deposit which was wrongfully withheld, plus any attorney fees.

Continue reading "New Jersey Rent Security Deposit Act: How it Affects Landlords and Tenants" »

One unique aspect of New Jersey tenancy law is the notion that a residential tenant is a "tenant for life" who cannot be evicted simply by letting the lease run out. In fact, even in cases where the residential lease states that the tenant must vacate on a certain date, such provision is considered void and unenforceable. Residential landlords are then faced with the problem of how to evict an undesirable tenant who is not in violation of the lease.

One method that has been commonly employed is the use of rent increases. But the law regarding rent increases requires that the landlord can prove that the increase being sought is "not unconscionable." Therefore, several landlords who wish to rid themselves of a tenant have begun to employ the "personal occupancy" provision of the Anti-Eviction Act. This provision, which allows the owner of a dwelling to evict a tenant upon two months written notice, is considered to be the only one of the 17 causes for eviction under the Act that does not require cause. In other words, in order to evict a tenant for personal occupancy, it is not necessary to demonstrate that the tenant did anything wrong. Landlords should note, however, that this particular cause for eviction is only available in dwellings with not more than 3 apartments. Therefore, an owner of an apartment building would not be able to evict one tenant on the ground that he or she wanted to occupy that unit.

Our office will not accept any matter where we suspect the landlord is attempting to use the "personal occupancy" provision in a fraudulent manner. However, as one may expect, this cause of action is subject to abuses by landlords who have no intention of occupying the home from which they have evicted a tenant. Accordingly, N.J.S.A. 2A:18-61.6 provides substantial penalties for wrongful eviction in cases where the landlord who evicted the tenant fails to occupy the premises for at least 6 months (or fails to execute contract of sale) and permits occupancy by another tenant. Due to the confusing wording of the Statute, many Judges mistakenly disregard the second requirement.

In one pair of matters I tried in Union County, I evicted two tenants out of a two family house, under the theory that the landlord wanted to occupy the entire house by herself. Of course, in order to convert the two family house into a single family dwelling, a lot of structural work was required. When 6 months had elapsed after the evictions, and my client still had not taken occupancy, the two tenants who had been evicted asserted claims for wrongful eviction against my client. Ultimately the question rested upon the interpretation of the Statute, which not only requires that the landlord fail to take occupancy, but also attempts to rent the dwelling to new tenants. After careful consideration of the Statute, as well as other factors involved in the case, the claims against my client were dismissed.

In 2000, the International Code Council developed a comprehensive set of property maintenance regulations designed to provide municipal code enforcement officials with guidance on a variety of issues concerning the construction and occupancy of structures. Like its predecessor, the BOCA Maintenance Code, nearly all municipalities in the State of New Jersey have incorporated the International Property Maintenance Code (IPMC) into their housing regulations.

Under the IPMC, Section 404.4, a bedroom must measure at least 70 square feet for a single occupant. Additional occupants shall require an additional 50 square feet per person. The IPMC further states that occupants of one bedroom should not have to cross through another bedroom in order to access a bathroom (or to access their own bedroom). Under the regulations set forth by the IPMC, it would seem that there is really no limit to the number of adults that can occupy a 1 bedroom apartment, so long as that one bedroom is large enough to accommodate 70 square feet for the first occupant and 50 square feet for each occupant thereafter.

The regulations, however, become more complicated when children are introduced into the dwelling. The Division of Youth and Family Services has also promulgated regulations concerning children. Generally, children of opposite sex cannot share a bedroom with each other or an adult. Therefore, families with children will very often need to rent apartments with more bedrooms, even in cases when a single bedroom would have been large enough to accommodate the size of the family.

Like all evictions based upon lease violations, evictions based on overcrowding require that the landlord first provide the tenant with a warning notice, called a Notice to Cease, allowing the tenant sufficient time to cure the violation. If the violation is not cured within the reasonable time period set forth in the Notice to Cease, the landlord will then need to furnish the tenant with a Notice to Quit, terminating the lease at least one calendar month from the next time the rent is due. For instance, if the tenant receives the Notice to Cease on October 20 and the next rent is due on November 1, the Notice to Quit would specify November 30 as being the termination date.

If the tenant does not vacate by the date set forth in the Notice, the landlord may file an eviction based upon the violations set forth in the notice. The Law Office of Michael D. Mirne has filed several evictions based upon overcrowding. Based upon recent trends, it may not be sufficient that the landlord prove that the occupancy exceeds the limitations set forth in the lease. Now many Judges also require that the occupancy exceeds the above mentioned guidelines established by the municipality for occupancy limits.

In this week's article, we will examine the subject of cumulative taxation. The case involved the Geoffrey Corporation, which owns Toys R Us and Babies R Us. The State of South Carolina had levied a tax upon said corporation in the amount of 5% of its net income. Said tax is unconstitutional for two reasons. First, it discriminates against interstate commerce, and second, the regulation will leave the petitioner subject to unfair cumulative taxation.

Discrimination Against Interstate Commerce
State regulations which discriminate interstate commerce are unconstitutional unless three requirement are satisfied. First, the regulation must pursue a legitimate state end; second, the regulation must be rationally related to that legitimate end; and finally, the regulatory burden imposed by the state on interstate commerce, and any discrimination against interstate commerce, must be outweighed by the state's interest in enforcing its regulation. With respect to the first requirement, Courts generally differentiate between regulations that seek to promote health, safety and welfare from regulations whose only objective is the furtherance of an economic interest. Regulations that seek to promote health, safety and welfare are encouraged under the Police Power rationale. See Wilson v. The Black Bird Creek Marsh Co., 27 US 244 (1829). On the contrary, regulations where the state's objective is to promote the economic interest of its own residents is not generally permissible. Taxes upon non-resident businesses, such as the petitioner, clearly fall into this category. It is apparent that levying such a tax upon the petitioner will act to partially offset taxes, which would have ordinarily been collected from the citizens of South Carolina. By collecting such taxes from the petitioner, South Carolina has in effect, helped the economic interests of its citizens. Protection of a state's economic interests is generally not considered to be a legitimate state objective, where pursuit of that objective materially affects interstate commerce.

Continue reading "State Tax Ruled to Be Cumulative and Unconstitutional" »

As the population of New Jersey continues to increase, expansions and changes to existing roads becomes necessary. Such changes often require the conversion of privately owned lands into publicly owned lands. This requires a proceeding known as a condemnation (sometimes called a taking). While a landowner in this situation will often be sent a notice informing of his right to be compensated for the land that is taken, he will need to understand the law of condemnation before he can make an informed decision as to whether the compensation is fair.
The Fifth Amendment to the United States Constitution provides that the Government shall not take "private property for public use... without just compensation." Granted, the Amendment appears slightly vague. However the courts, through a series of landmark decisions, have imposed restrictions and clarifications on the law. To understand these limitations, we must first distinguish between a regulatory taking and a physical taking.
A regulatory taking occurs when a governing body creates a law which impedes a landowner's use of his land. With respect to these actions, it is crucial to note that only regulations which deprive the landowner of all economically feasible uses of his land shall be deemed a taking necessitating compensation. Furthermore, case law tells us that even when the regulation leaves a parcel bereft of all economically feasible uses, there are numerous situations where compensation is not required. The most common example of this involves nuisances - uses that will prevent nearby landowners from ordinary enjoyment of their property. No compensation is necessary if the regulation is necessary to abate a nuisance. With respect to regulatory takings, it is also important to note The California Rule (now the law in most states) which states that the municipality charged with a regulatory taking is not liable for compensation until the statute is upheld.
While regulatory takings only require payment of compensation when the taking leaves the landowner with no beneficial use, physical takings only require that the landowner suffers a loss of value. In such cases where the governing body seizes all or part of a landowner's property in a condemnation, the landowner must be compensated for the diminution in value resulting from the condemnation. For example, if the landowner owns and operates a large restaurant and his parking lot is taken, his injury is certainly greater than the appraised value of his parking lot. The loss of business to his restaurant must also be considered. Such considerations often require the testimony of expert witnesses such as appraisers who will be able to make a determination as to the effect a taking has on the (untaken) remainder.

Continue reading "New Jersey Real Estate Condemnations: When is Compensation Required?" »