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August 22, 2014

Tenant Screening

dollar-sign-1317230-m.jpgOur clients frequently ask us about Tenant Screening. For Landlords who want to minimize their risk of renting to problematic tenants, a variety of methods can be used to predict whether the tenant may present a problem in the future. Most Landlords are already familiar with the variety of online services that can be used to screen the applicant based on credit score and other financial criteria. Although credit score can be a valuable indicator of a tenant's ability to pay his or her rent, most landlords would prefer to know whether their prospective tenants had any prior eviction or criminal history. Since there tends to be a high recidivism rate amongst tenants who have been evicted, having the applicant's eviction history may be a valuable tool in indicating a potential problem with the applicant. Similarly, the prior criminal history of an applicant may be of cause for concern for a landlord.

Information regarding an applicant's eviction or criminal history can be obtained free of charge from the State of New Jersey's Judiciary web site. To access this information, go to www.judiciary.state.nj.us. On that website, users may click the tab marked "online resources." Under that tab, you will be provided with several options, including "civil case public access," and "criminal conviction information." Using the applicant's name, the user can then find out whether any civil or criminal cases have occurred. More detailed information can also be obtained using the public access computer workstations located inside the County Courthouses.

Another effective screening method is a surprise visit to the apartment where the applicant currently lives. Very often, these visits yield astonishing findings regarding the cleanliness of the potential applicant. In some cases, an applicant who appears to be otherwise qualified will prove to be a hoarder or have a substantial sanitation issue. We do not recommend giving too much weight to a recommendation from the prior landlord.
Very often, the prior landlord is highly motivated to remove the unwanted tenant and may therefore provide a prospective landlord with an overly complimentary report about a bad tenant.

While the screening of tenants is part of the responsibility of being a landlord, it is also the responsibility of the landlord to ensure that he or she complies with Federal and State laws. Specifically, a landlord may not engage in any illegal form of discrimination. The laws regarding discrimination are infinitely complex and extend to the screening of applicants as well as the method of advertising. If you are unsure of the laws regarding discrimination, you should speak with a lawyer who specializes in that field of law. Landlords should also be aware that searches might sometimes lead to false results, especially in cases where the applicant has a common name. Landlords must take extra caution to make sure that their screening practices are consistent for all applicants and do not violate any laws regarding discrimination. Finally, landlords should be cautioned that not all applicants with negative indicators in their credit, eviction or criminal histories are going to difficult tenants.

June 9, 2014

New Jersey's Summary Dispossess Act - No Protection for Tenants of Owner-Occupied Premises

GAVEL.jpgIn New Jersey, most residential tenants are protected by the Anti-Eviction Act, which provides protection to residential tenants against evictions without cause. The fundamental principal of the Anti-Eviction Act is that the expiration of a residential lease does not terminate the tenancy. Recognizing the unfairness of forcing resident landlords to live with tenants whom they found to be unfavorable, the legislators added the "owner-occupied premises' exception to the act." See Fresco v. Policastro, 186 N.J.Super. 204 (D. Ct. Essex Cty 1982).

Residential tenants whose leases who are renting owner occupied properties with 2 or fewer rental units are not protected by the Anti-Eviction Act. Additionally, seasonal tenants (defined as tenancies of 125 days or less) are also not protected. Consequently, these 2 categories of residential tenants, as well as all commercial tenants are only protected by the Summary Dispossess Act. Under the Summary Dispossess Act, tenants can be evicted on one-month's written notice once the lease expires. In three recent cases that we handled, the Court was asked to determine whether the tenants were protected by the Anti-Eviction Act or whether the Summary Dispossess Act would apply.

In one matter we recently handled, the Court's decision hinged upon the definition of the term "owner-occupied premises." It was not disputed that the tenant and the landlord both occupied houses on the same property. However, the houses were not attached. In the matter of Fresco v. Policastro, 186 N.J. Super 204 (1982), the Court examined an identical issue involving a nearly identical set of facts. The Plaintiff in that matter also contended that "good cause" was not necessary to evict because the property was owner-occupied. The Defendant argued that "owner-occupied premises" applies only to cases in which the Landlord and Tenant occupy the same building. The Court ultimately determined in Fresco, that the "owner-occupied premises" exception in the Anti-Eviction Act was included to prevent injustice to resident landlords and "owner-occupied premises" includes not only properties in which the landlord and tenant share the same building, but all properties in which the landlord and tenant share the same property, regardless of whether the "[landlord] lives above, below, in front of or behind, or alongside an unfavorable tenant." While the Anti-Eviction Act does not define the word "premises," the Fresco Court considered other Acts in which the Legislature defined "premises" broadly as house, buildings, lands or tenements." Furthermore, In Ford Motor Company v. Labor ad Industry Department, 5 NJ 494 (1950), the Supreme Court Defined premises as "the property conveyed in a deed." Additionally, in the matter of McQueen v. Brown, 342 N.J. Super 120, 775 A.2D, 748 (2001), the Court remarked that even if the Landlord were only occupying the property for eight or nine days per month, the property would still be considered to be owner-occupied for the purposes of satisfying the exception to the Anti-Eviction Act.

Finally, while the Anti-Eviction Act does not define owner-occupied premises, the Rent Security Deposit Act does provide us with guidance. In the Rent Security Deposit Act, "owner-occupied premises" was defined as "rental premises that may consist of one or more buildings containing more than one residential unit, at least one unit of which is legally occupied by a landlord as the landlord's place of residence."

May 15, 2014

New Jersey Evictions: Habitual Late Payment

Calendar.jpgThe vast majority of eviction complaints are based upon non-payment of rent. However, New Jersey law, which is focused on affording tenants an opportunity to cure any default, sets forth that complaints based upon non-payment of rent will be dismissed in the event that the tenant pays the rent that is due and owing prior to the day of Court. N.J.S.A. 2A:18-55, N.J.S.A. 2A:42-9. While the rent balance that is included in the eviction complaint may, in certain circumstances, include late charges and attorney's fees associated with the filing of the complaint, the New Jersey Courts have established that these "additional rent" charges are prohibited on eviction complaints filed against tenants who are receiving Federal Housing Assistance. Since there tends to be a high recidivism rate amongst tenants who pay their rent late, landlords often ask us if there are any provisions under New Jersey law that would entitle them the right to refuse rents from a "habitually late" tenant and file the eviction solely based upon the habitual late payments.

Under N.J.S.A. 2A:18-61.1(j), a tenant may be evicted for habitual late payment. Unfortunately, an eviction based upon Habitual Late Payment is a lengthy process. It will require a minimum of two pre-suit notices, which are generally delivered at one month intervals, since rent is usually due monthly. In cases when two late rent payments are interceded by an on-time payment, then additional notice becomes required. In all cases, the final notice is the Notice to Quit. Because the law requires Notices to Quit to provide the tenant with a full calendar month's notice of termination, before a complaint may be filed, and because the allegation of Habitual Late Payment necessitates the landlord to wait until after the start of the month before serving the notice, evicting for this ground requires an additional month that very often would not be required for other causes for eviction. As a practical matter, evictions based upon habitual late payment of rent are a 5-month process.

While our firm has filed several evictions based upon Habitual Late Payment, we have found that most of these types of cases are settled prior to trial. Those matters that are not settled are easy to win provided that the landlord keeps good records of when rent payments were received and provided that the landlord's attorney properly served, worded and timed all notices. For more information on Habitual Late Payment of Rent, please contact our office.

February 8, 2014

New Jersey Landlord Tenant Law: A Revision for the Collection of Legal Fees by Tenants

Apt4.jpgOne central principle of the American legal system is that each party generally pays his or her own legal fees. There are, however, exceptions to this rule. One exception exists in cases in which there is a "fee shifting" statute that requires a particular party to pay the other party's legal fees. Another common exception exists in cases in which the parties had previously entered into a contract in which one party explicitly agreed to pay the other's legal fees.

The provision requiring a tenant to pay a landlord's legal fees is often found in residential real estate leases. However, it is generally agreed that, in a very competitive housing market, the bargaining position of the parties is somewhat unbalanced, and that residential leases are akin to "contracts of adhesion." Other than the amount of rent paid by the tenant, there is very little room that a tenant has to actually negotiate. Consequently, the idea that a residential tenant is responsible for the landlord's legal fees, while the landlord is not responsible for the tenant's legal fees, seemed unfair to some New Jersey Lawmakers.

Starting this year, new legislation, marked as Senate Bill 2018, will seek to balance the equities by forcing landlord's to pay the tenant's legal expenses in some cases in which the landlord is not successful in the action. The caveat to this new rule is that it shall only apply in cases in which the landlord has reserved the same right for himself within the lease. Put simply, if the written lease does not require the tenant to pay the landlord's legal expenses, the tenant also has no right to collect legal fees under the statute. Additionally, all residential leases that require a tenant to pay the landlord's legal fees must contain an additional statement setting forth the tenant's rights under the Statute.

The new law shall take effect immediately. Notwithstanding the legislative intent, there may be some difficulty in enforcing this Act. One of the unique aspects of Landlord Tenant Court is that it cannot award money Judgments. Rather, it can only award a Judgment for Possession. Therefore, the Landlord Tenant Court cannot actually compel a tenant to pay rent, legal fees, or other costs. The Landlord Tenant Court can only instruct that if the tenant does not pay the rent, plus any legal fees and costs that are due, that a Judgment for Possession would issue against the tenant. Similarly, in prior cases in which the tenant could legitimately argue that he or she was entitled to compensation for legal fees due to the wrongful conduct of the landlord, the Landlord Tenant Court could not award those fees.

In the matter of King Plaza v. Sanchez, the tenant was seeking sanctions against the landlord's attorney due to multiple filings of what the tenant argued was essentially the same complaint. However, the Appellate Division had ruled that Landlord Tenant Court was without jurisdiction to award any sanctions, and that the tenant would need to file that claim under a separate docket number. Therefore, despite the tenant-friendly wording of S-2018, it seems that any fees to which the tenant is entitled must be pursued outside of Landlord Tenant Court.

Finally, as a cautionary note, landlords who pursue their actions should bear in mind that unlike actions filed on behalf of a landlord, which are generally handled in bulk at very affordable rates, attorneys who represent tenants are not counting on repeat business, and will very often charge the tenant exorbitant fees for the representation. Consequently, under the new Statute, it is clear that Landlords may be responsible for the reimbursement of those fees. Therefore, in cases in which the tenant is represented, it is sometimes prudent to dismiss a matter and refile if there is a potential defect in the case.

November 25, 2013

New Jersey Tenant Problem: What to do when a tenant who owes rent claims Constructive Eviction

A few weeks ago, one of our clients encountered a common problem. The problem was that her tenant had attempted to cancel the lease several months before its expiration, claiming that his reason for doing so was that there was mold in the dwelling, rendering it uninhabitable. The claim by the tenant is referred to as Constructive Eviction. In this month's article, we will discuss that claim as well as what the landlord may expect in Court.

There are certain circumstances in which a tenant with a substantial habitability defect can declare a "constructive eviction" and cancel the lease. In all cases, the tenant must show that the habitability defect is substantial enough so as to render the premises utterly unsuitable for the purpose for which it has been rented. The tenant must generally also give the landlord a reasonable opportunity to cure the defect, except in extreme and very unique circumstances. The tenant's reasons for the claim are usually made in writing to the landlord and then again in Court when the landlord attempts to sue the tenant for rents remaining under the lease. If the Court is persuaded by the tenant's arguments, the landlord's claim for unpaid rent would be denied, and likewise, the tenant's claim for return of security deposit and any other incidental damages would be granted.

Very often, the tenant has no legitimate argument and the alleged habitability defect is merely a pretext for attempting to cancel the lease. However, the issues in these types of cases always involve a thorough factual inquiry. Please also remember that once the tenant moves out, the landlord still has a duty to attempt to mitigate his or her damages by trying to find a new renter. Absent a successful claim of construction eviction, the existing tenant is responsible for any rents the landlord loses until the lease expires.

Continue reading "New Jersey Tenant Problem: What to do when a tenant who owes rent claims Constructive Eviction" »

October 4, 2013

New Jersey Rent Control Epidemic Spreads to Neptune Township

dollar-sign-1317230-m.jpgOur office previously reported on the law concerning New Jersey Rent increases. For landlords in towns that have not instituted rent control, the only requirement is that the landlord must prove that the rent increase being sought is not unconscionable. There would, therefore, be no preset percentage of allowable increase. Rather, the Court would consider a variety of factors, and very often the most persuasive factor is the fair market rent of similar units. For landlords of properties in rent controlled towns, the restrictions are usually far more onerous, and oppressive. They have resulted in lower property values, and a general blight upon all rental properties in town. For this reason, very few towns have resorted to rent control. As recently as 2011, Blogfinder has reported that only 98 out 565 New Jersey municipalities had rent control.

Notwithstanding the economic arguments to the contrary, Neptune Township, New Jersey, has recently become the third town in Monmouth County to institute rent control. The new ordinance will apply to all residential structures of five units or more, and will limit the rent increases to the percentage set by the consumer price index (CPI).

What is a CPI Increase?
The Consumer Price Index is a published statistic that is determined based upon a variety of periodically changing factors. For the New York metropolitan area, CPI has hovered around 2% for much of the past 18 months. Traditionally, CPI increases have been used in commercial leases to enable the landlord to achieve a "cost of living" increase each year as the value of the dollar diminishes. However, in the commercial leases, the tenant is usually paying the utilities, taxes, and insurance, and therefore the amount paid for rent only encompasses the use of the rental space and not the expenses associated with that space. To employ the concept of a CPI increase to a lease in which the landlord is paying the taxes, insurance, and some utilities, would result in many landlords being driven out of business, which would further reduce the number of available rental units, and ultimately increase the initial rents of the remaining inventory. Put simply, the landlord will never be able to recover increased costs.

In prior decisions, New Jersey Courts have routinely held that a rent increase in excess of the limits set forth under a municipality's rent control ordinance constitutes Consumer Fraud Therefore, achieving fair increases is limited to the landlord's ability to persuade the rent leveling board that the rent increase is fair and necessary. Our office previously challenged the rent control ordinance in Trenton, to obtain fair market rents for a multiple dwelling building. In that matter, the Rent Leveling Board considered the landlord's expenses, as well as the rents for similar units.

Finally, we note that income properties are generally appraised and assessed based upon the income stream that is derived from that property. Appraisers speak in terms of internal and external factors that affect value. When the value of a property is negatively impacted by an external factor that is outside of the control of the property owner, the property is said to suffer from external obsolescence. Since rent control ordinances will ultimately result in reduced income from the properties, we anticipate that several tax appeals will be filed as the net operating incomes continue to drop for these properties. Please keep in mind that the filing deadline for Monmouth County Appeals has been changed to January 15. Please contact our office to discuss filing your tax appeals.

September 9, 2013

Monmouth County Tax Appeals - Changes to Filing Deadline

Calendar.jpgIn 2011, our office reported about a new proposed law that would change the tax appeal filing deadline from April 1 to January 15. The legislation was spurred by a concern that New Jersey municipalities had suffered substantial budget shortfalls as the result of Real Estate Tax Appeals being filed after the municipal budgets had been adopted.

Under the old law, each municipality was required adopt its budget by March 31, which was one day prior to the Tax Appeal filing deadline. Since Tax appeals often do not get heard until several months after they are filed, the judgments resulting from those Tax Appeals resulted in major budget shortfalls.

In light of the current issues, a bill was enacted to fix these problems by simply changing the taxation calendar. Under the proposed calendar, taxpayers would receive their assessment postcards by November 15. Tax Appeal applications would be due by January 15, and decisions would be mailed no later than April 30. The final piece of the proposed bill is that the municipal budget would not be due until May 15, and the tax rates would not be set until May 31, after the municipality already has an accurate picture of what the total tax base would be.

The new filing deadline will become effective for the 2014 Tax Year. All Monmouth County Tax Appeals for 2014 must be filed by January 15, 2014. Our office will accept Monmouth County Tax Appeal intakes until January 6, 2014. Consequently, if you feel your property has been over-assessed, we encourage you to have us file your appeal as early as possible in order to ensure that one of our appraisers will have adequate opportunity to inspect and prepare a report prior to the hearing date. As always, the date of valuation will remain October 1.

There will be no extensions to this deadline. Taxpayers who attempt to file after the January 15 deadline will find their applications rejected. Our office will accept Monmouth County Tax Appeal intakes until January 6, 2014. Taxpayers whose properties are over-assessed may e-mail or call us for our 2014 Tax Appeal Intake.

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August 20, 2013

New Jersey: Collection Practice and Procedure for Claims Against Past Tenants (part 2)

Last month, our office released Part One of our two-part blog on collection actions. We had examined the steps involved in filing the suit for collection and what to expect on the day of Court. Our article ended with the entry of a Judgment against the Defendant, along with the obligatory cliffhanger of how the Plaintiff can finally get paid. Today, in Part two of our blog, we will discuss methods used in collecting the Judgment.

Since both our practice and this article are primarily focused on collections against tenants, we need to point out that a rather large percentage of collection actions against Defendants result in Defaults This means that the Defendant either failed to show up to Court, or failed to submit an answer to the Complaint. After the Complaint is filed, the Defendant must submit an Answer to the Court within 35 days (Note: This rule does not apply to actions in Small Claims Court). If no Answer is submitted or, even if an Answer is submitted and the Defendant fails to appear in Court, a Default will be entered.

After the entry of a Default, or after the Defendant has breached a Settlement Agreement, the Plaintiff may apply to the Court for a Judgment. The Court, however, will not simply enter a Judgment based solely on the Complaint. The Plaintiff must submit proofs of the claim to the Court. In cases where the claim is based upon non-payment of rent, the proofs may be as simple as providing the Court with a Lease and a Ledger, along with an Certification by the client that the amounts due under the lease and ledger are truthful and accurate.

If, on the other hand, the claim is based upon physical damages to the property, the Court may conduct a Proof Hearing to determine the actual amount of damages to which the Plaintiff is entitled. A Proof Hearing is similar to a trial. The Plaintiff will testify to the claim, and in most cases, the Judge will ask some additional questions of the Plaintiff to clarify the testimony. The Defendant, however, does not present a case. In the rare instance the defaulting Defendant actually shows up to the proof hearing, he or she may be entitled to cross-examine the Plaintiff, but ideally, the Defendant should not be allowed to testify. Finally, the Plaintiff will need to submit an Affidavit of Non-Military Service, setting forth that the Defendant is not an active member of the United States Military. Affidavits of non-military service can be based either on personal knowledge of the Plaintiff, or preferably, based upon a certification from the Defense Manpower Data Center, which is available online. Finally, we note that, in some cases, the Defendant will apply to set aside the Default and have the matter relisted for trial. We will discuss those circumstances in a later article.

Upon entry of a Judgment, the Plaintiff will need to decide how to get paid. The Judgment can generally paid by one of three methods. The first method we will examine is a Wage Execution. The Wage Execution will generally allow the Plaintiff to collect up to 10% of the Defendant's Wages until the Judgment is satisfied. For more specific rules as to how the Wage Execution is calculated please see the enclosed link to Appendix XI-J of the Court Rules. In the instance in which the Defendant already has an active wage garnishment, the Court must wait until that amount is satisfied before moving onto the next execution. Therefore, Plaintiffs may have to wait their turn in order to get paid.

The second method, commonly employed is a levy against the Defendant's bank account or assets. This method is seldom effective for collections against residential tenants, who rarely carry any significant balance in their bank accounts. Typically, a landlord seeking to execute against a bank account will be successful in obtaining a nominal sum of money that the Defendant has in his or her account, and is then forced to resort to another method of collection afterward.

Finally, if all else fails, the Plaintiff can have the Judgment against the Defendant "Docketing the Judgment in Trenton. The effect of the Docketing of the Judgment is that the Judgment will become a statewide lien that may be collectable in the event that the Defendant attempts to purchase or sell real estate in New Jersey. The Judgment will remain active for 20 years. Thereafter the Plaintiff can apply to have it renewed if it has not been satisfied by then.

July 16, 2013

New Jersey: Collection Practice and Procedure for Claims against Past Tenants (part 1)

In this multi-part article, we will discuss various aspects of collection practice for Landlords who are owed rents from prior tenants.

The vast majority of New Jersey eviction actions are filed for non-payment of rent. Evictions based upon other causes comprise less than 10% of all filings. Our office is frequently asked questions about collecting unpaid balances from prior tenants after they are evicted. Very often, landlords who are unfamiliar with the process begin with a mistaken belief that the result they obtained in Landlord Tenant Court will entitle them to "money judgments" against their tenants. Unfortunately, judgments issued by the New Jersey Landlord Tenant Courts are for "possession" only. This Judgment is the order giving the landlord the right to have the tenant locked out with the aid of a Special Civil Part Officer. While the Landlord Tenant Court will generally require that the tenant pay all past due rent in order to avoid eviction, the Landlord Tenant Court cannot compel a tenant, who is vacating the premises, to pay any money. Therefore, landlords who choose to seek outstanding balances from their prior tenants are therefore forced to file a separate action for the collection.

Most claims for rent against prior tenants are filed in the Special Civil Part of the Law Division. The Special Civil Part allows Plaintiffs to assert a claim for up to $15,000. Complaints initiated in the Special Civil Part begin with a complaint, setting forth the amount that is claimed to be due and owing. The Defendant is then served with a copy of the Complaint and afforded 35 days to respond or file a counterclaim. The parties should then be provided with a "discovery" period, in which documents and information will be exchanged prior to trial. Under New Jersey Court Rule 6:4-5, the parties should be provided 90 days to complete the discovery process, before the trial should be scheduled. Notwithstanding this rule, it is common for Courts to cut short this time period and schedule the trial much sooner than the Court rule would seemingly permit.

On the day set for trial, the parties will generally be told to report to the Courtroom at 9:00 in the morning. The parties will then be surprised to see that they are not the only litigants in the Courtroom. In fact, there may several dozen cases scheduled for trial that same day. The Judge will call the names of the cases and instruct the parties to try their best to settle their matters. Since most counties only have one Judge trying all the Special Civil Part cases, some Special Civil Part Judges will even give a stern warning to any parties who think they will be able to bypass the mediation process and proceed directly to trial. Depending on the caseload of the county, cases that do not settle in mediation may not even be reached for trial that same day.

The benefits of mediation are numerous. Mediation enables parties to avoid the uncertainty of a trial. It saves the time and expense of a trial, which is especially important when one or more of the parties is paying for legal representation. Mediation will also allow the parties to agree on a result that would not be possible at trial. These results can include the agreement of payment plans for a party whose only objection to the action is the fact that he or she does not have the funds to pay the other party. Since Special Civil Part matters, especially with landlords and their former tenants can be very personal and contentious to both of the parties, the mediation process may afford the parties an opportunity to come to an understanding that extends beyond the monetary damages sought in the action. Finally, the agreement reached in mediation will usually contain a strict default provision, which will enable the Plaintiff to receive a Judgment, without a trial, in the event that the Defendant fails to comply with the terms of the settlement agreement.

Notwithstanding the benefits of mediation, it should be noted that an offer made in mediation should a compromise of a potential claim, in which each party foregoes some rights in order to avoid the time, expense and uncertainty of trial. A common question is whether the landlord is entitled to collect legal fees and expenses associated with the collection action and the prior eviction. While most residential leases contain a provision setting forth that the tenant is responsible for legal fees, those charges are usually part of the balance that the Plaintiff is willing to waive in mediation.

After a Judgment is entered, the Plaintiff's first question is how he or she is going to get paid the amount due to him or her. Unfortunately, the answer to this question is not always easy. Whether the Judgment against the Defendant has resulted from a trial, a breached settlement agreement, or a default against the Defendant, the difficult part of the collection action is often the collection. In part 2 of this blog, which will be released shortly, we will discuss methods that are used to collect amounts due from Judgments.gavel.jpg

May 12, 2013

Landlord Tenant Law: Legislating Protection for Victims of Domestic Violence

Our office previously reported on New Jersey's Safe Housing Act, a 2008 statute that allows victims of domestic violence to terminate their residential leases on 30 days notice to the landlord. Since the time we published that article, we received an overwhelming amount of comments, and the general consensus has been that the inconvenience that the Act has caused to some landlords has been substantially outweighed by the public purpose served by the Act.

While the Safe Housing Act affords protection to tenants, we were recently informed of an ordinance that actually penalizes tenants for reporting incidents of domestic violence. Under Section 245-3 of the Norristown, Pennsylvania municipal code, residents who rent their homes were only allowed a maximum of two calls to the police for each four-month period. In the event that a third call was placed to the police during that period, the landlord's license to rent that property would be revoked. As a result of that revocation, the town would then be forced to evict the tenants. While the town stated that the intention of the act was to minimize disorderly conduct, the legislation has resulted in domestic violence victims either losing their homes, or alternatively, being hindered from making a report out of concern for the possible repercussion.

The matter of Briggs v. Norristown (2013) , concerned a challenge to a law, which the Defendant, municipality, had enforced an ordinance against the Plaintiff, renter and her landlord by revoking the landlord's rental license and subsequently attempting to remove Plaintiff and her infant daughter from their home, based solely on the fact that the police were called upon one too many times to protect her and her daughter from incidents of domestic violence. Following a discussion with the Plaintiff's attorney regarding the constitutionality of the ordinance, the Defendant municipality rescinded the ordinance. However, shortly thereafter, the Defendant municipality enacted another ordinance, which was similar to the old ordinance, except that it placed most of the penalties upon the landlord, rather than upon the tenant.

The Plaintiff challenged the new ordinance based upon numerous constitutional grounds. While this matter has not yet reached a trial date, we were surprised to learn that the Norristown ordinance is not unique, and in fact, other towns around the country have implemented similar ordinances. Our office will continue to keep you updated as this matter continues to develop.

April 1, 2013

New Jersey Tax Appeals: Ocean County Update

Thumbnail image for Sandy Rolllercoaster.jpgOn October 29, 2012, Hurricane Sandy brought storm surges in excess of 9 feet. This was bad news for Ocean County, in which 29 of 33 municipalities border the ocean. Our office previously reported on statutory relief available to owners of properties that sustained damage during the hurricane. While the 2013 relief will be limited to loss of value to structures and not loss of value to land, we are surprised by the number of taxpayers in Ocean County whose assessments still do not accurately reflect the diminution of value sustained by the properties.

Some of the more severely affected towns in Ocean County have conducted revaluations or re-assessments this year in order to re-examine the properties and fairly determine their new true values. The towns of Plumsted, Stafford, Manchester, Seaside Heights, Pine Beach, Point Pleasant Beach and Toms River have all been designated for re-assessments this year. While the filing deadline for New Jersey tax appeals is generally April 1, towns in which a revaluation or re-assessment has taken place are usually assigned a tax appeal filing deadline of May 1. All of the aforementioned towns will observe a May 1 filing deadline, except for Point Pleasant Beach and Toms River, in which the deadline has been extended to June 1.

The municipal-wide revaluations of storm affected towns presents two major logistical problems. First, for towns in which all or most properties (line items) have been substantially affected, the lowering of all assessments will provide little relief to taxpayers, who will most likely be forced to begin paying a higher tax rate in order to ensure that the municipal budgets are maintained, without the need for bonding. Second, for towns in which only a few line items were affected, the lowering of assessments of the coastal properties will result in a higher tax rate for all residents, especially the residents of the lower priced inland properties. Very often, these are the residents who can least afford to pay a higher tax rate.

According to one estimate, at least 13,000 storm damaged Ocean County properties will have their assessed value reduced by a total of $4.6 billion. In order to avoid the inevitable result of a higher tax rate for all New Jersey residents, towns have begun seeking State and Federal relief to make up the budget shortfalls. However, if your property has been affected by Hurricane Sandy, and your assessment was not sufficiently reduced to account for the amount of damage sustained, please contact our office for a consultation. We will accept new Toms River and Point Pleasant Beach appeals until May 16. For the remainder of re-assessed towns, we will accept new appeals until April 19.

February 22, 2013

New Jersey Evictions: Fundamentals

For the past several years, our office has been reporting on various topics relating to the New Jersey Eviction process. The topics have included habitability hearings, Section 8 subsidies, rent increases, and notices to tenants. Absent from these discussions has been an explanation as to how the New Jersey eviction process works. In anticipation of our March 20 Seminar in Parsippany, we started working on a discussion as to how the eviction process works.


The Eviction Complaint
New Jersey eviction actions are commenced when the Landlord files his or her complaint with the Court in the county in which the property is located. The Court generally requires that the landlord file an original and 3 copies of the Complaint, although additional copies are required in instances where there are multiple defendants. For a single Defendant, the filing fee is $25 plus an additional fee, called "mileage." The mileage fee is determined based upon the distance of the property from the Court. Landlords must also pay an additional $2 for each additional Defendant on the Complaint. Within a few weeks of receiving the Complaint, the Court mails a copy to the Defendant, and simultaneously serves the Defendant by hand-delivering a copy of the Complaint to the tenant's door. Trial is generally scheduled about 4 weeks from the date of filing. Some counties may take longer, depending on volume.

The Summary Proceeding
Landlord Tenant actions are Summary Proceedings. The Defendant does not file an Answer to the Complaint. Instead, the Defendant can raise any defenses on the day of trial. There are no Counterclaims or Crossclaims and there is no requirement that the parties exchange any discovery prior to trial. There are also no Jury Trials in Landlord Tenant Court.

7 Rules for Non-Payment Cases
1. In the event that the tenant pays the balance owed prior to the day of Court, the case shall be dismissed.
2. In the event that the tenant is unable to pay the balance owed by the day of Court, the landlord shall be entitled to a Judgment for Possession.
3. Most cases are mediated; however, should the matter proceed to trial, the Judge has no authority to make the landlord wait for rent or force the landlord to take the rent in installments.
4. Acceptance of a portion of the rent prior to the day of Court does not affect the status of the matter. It simply lowers the amount that the tenant would still have to pay.
5. In the event that the Landlord accepts any rent (regardless of how little) after the Judgment for Possession has been entered, the case shall be dismissed, unless the parties have a written agreement and a copy is filed with the Court.
6. Landlord Tenant Judgments are Judgments for Possession only. A landlord will only get money in Landlord Tenant Court if the tenant is willing to pay it in order to stay in the premises (or in some vacate agreements as well). The Tenancy Judge cannot compel or order the tenant to pay money. He or she can only instruct that if the rents are not paid, the tenant will be locked out. If the Landlord wants to sue the tenant to collect the unpaid rent, this must be done in a separate proceeding.
7. No "Res Judicata" - The outcome of a landlord tenant action will not necessarily affect how the Court would rule in a subsequent action (i.e.; an action for collection). Similarly, the amounts agreed to on a settlement agreement do not create a Judgment even if the tenant does not pay the amount agreed upon.

Warrants of Removal

The form for requesting a Warrant of Removal varies greatly by county. In all cases, Warrant cannot be issued for at lease 3 business days after the Judgment for Possession and in all residential cases, the lockout may not occur until 3 business days after the Warrant has been issued.

Post Judgment Relief
Following the issuance of a Warrant of Removal, the tenant may still go back to Court to ask for relief. Generally, the relief will take one of three forms as follows:
First, the tenant may apply to the Court to have Judgment set aside based upon fraud or good cause. These applications are rare, but if the application is successful, the matter will generally be dismissed and the tenant will be entitled to remain in the premises. Second, the tenant may make an application for Orderly Removal, based upon Court Rule 6:6-6(b), allowing the tenant an additional week to vacate. The Orderly Removal is the most common application, because it requires no payment on the part of the tenant; however, at the conclusion of the 1 week time period, the tenant must vacate the premises. Finally, the tenant may make an application for Hardship Stay. However, the Tenant must pay all rent due and owing and stay may not exceed 6 months. It is important to note that this application can be made up to 10 days after the lockout has occurred!

For more information on enrolling in this Seminar, please visit the Sterling Education Website at http://www.sterlingeducation.com/

February 12, 2013

New Jersey Landlord Tenant Law - The Ninth Installment

gavel.jpgThe Law Office of Michael D. Mirne, through its continued affiliation with Sterling Education Services is proud to announce that we will once again be presenting a Seminar on the exciting subject of Landlord Tenant Law. This year's seminar, which is the ninth annual program, will be conducted on March 20 at the Courtyard by Marriott in Parsippany, New Jersey. Our colleague, Christopher Costa, from the firm of Hartsough, Kenny, Chase, and Sullivan will be leading off the day with a discussion regarding the selection and screening of tenants, leasing, security deposits, public housing agreements, abandoned property and everything else that a landlord needs to know to run a successful business.

Following Mr. Costa's presentation, I will be transitioning the discussion from the landlord tenant relationship to a discussion on dissolving that relationship through the eviction process. I will be speaking specifically on the topics of the Anti-Eviction Act, service of legal notices to tenants, rent increases, habitability defenses, personal occupancy by landlord, illegal lockouts, settlement agreements and filing procedures. I will also be speaking about strategies for eviction trials and a few new topics.
The day's topics will be concluded by presentations by Terri Jane Freedman and Katharine Muscalino of the firm of Porzio, Bromberg and Newman, who will discuss the practical implications of a tenant who files for bankruptcy and pursuing collection actions against tenants, as well ethical issues. These discussions will provide vital information for landlords whose tenants vacate their dwellings without paying their rent.

The program is recommended for landlords, real estate professionals, property managers, caseworkers, and attorneys. For New Jersey attorneys seeking CLE credits, please be advised that this course has been approved for 8.0 credit hours (1.2 will be counted toward ethics/professionalism).

For information on enrolling in this seminar, please visit the Sterling Education Website at www.sterlingeducation.com or call their office at 715-855-0498.

January 24, 2013

New Jersey Ejectment Actions: Removing the Unauthorized Occupant

House 5.jpgFor the past several years, our office has been reporting on various aspects of New Jersey Landlord Tenant Law. We have noted that the New Jersey eviction process is a generally fast and simple procedure that allows landlords to evict tenants in as little as four to six weeks. There are no Counterclaims allowed by the Defendant (Tenant) and there is no requirement that the parties exchange any discovery prior to trial.

While landlords and property owners generally appreciate the efficient manner in which Landlord Tenant Court reaches and disposes of housing related disputes, some property owners simply may not qualify to proceed in that Court. The most important characteristic shared by all parties in Landlord Tenant Court is that there is some type of "Landlord-Tenant relationship." In all cases, one party must be under either a lease or an obligation to pay the other party rent. In some cases, however, that relationship simply does not exist. In those cases, the property owner must proceed under an action known as an "ejectment." Ejectment actions almost always take longer to adjudicate than tenancy actions, and require substantially more paperwork on the part of the parties. From our office's experience, the most common scenarios in which an ejectment may occur are the removal of a former owner from a house following a foreclosure, and removal of a family member from a house that was supposed to have been used for a temporary time period. While the scope of landlord tenant actions has been expanded to include employees who receive housing in exchange for employment, the matter of Vasquez v. Glassboro Service Association, Et. Al., 83 N.J. 86 (1980) set forth that migrant farm workers did not qualify as employees and therefore, an ejectment action needed to be filed in order to remove them from farm housing.

In one recent matter our office handled, our client's parents had deeded him their house in exchange for an interest in a gas station that he owned. After the property was deeded to our client, he decided to move in, only to find that his sister had been living in that house without his consent, and without paying him any compensation. Our office filed an ejectment complaint with the Superior Court. Ultimately, our client's parents agreed to deed him a different house, rather than removing their daughter from the house that she had been living in. If your property has an unauthorized occupant residing in it, please contact our office for a free initial consultation.

December 7, 2012

New Jersey Real Estate Taxes Remain the Largest in the Nation

10278431-illustration-of-school-house.jpgThroughout the year, this office has published a series of articles about real estate tax assessments. We have discussed how assessments are calculated, and how assessments can be appealed when they are too high. We have also discussed the fact that most real estate assessments in New Jersey do not exceed the actual value of the properties, and for many taxpayers, the high taxes they are paying is simply a function of a high real estate tax rate, which cannot be appealed. For our final article of this year, we will discuss some reasons why your tax rate may be as large as it is, and some ways that the local governments can (but probably will not) lower them.

The free market system, driven by the traditional principle of supply and demand, not only controls the prices of the products we buy, but also dictates the price that we pay for labor. We certainly would not continue to give raises, for example, to an undeserving employee, especially when many qualified applicants were waiting to take that person's job. Recently, much attention has been brought to the paradigm, which awards teachers for seniority, rather than academic achievement. Perhaps one of the greatest casualties of the expensive union contracts for public school teachers is that it comes at the expense of the school system's ability to hire additional necessary teachers, in the absence of substantial increases to the municipal budget.

According to recent data, the average cost to the taxpayers was $17,469 per child for the 2010-2011 school year. In Asbury Park, the cost per student for that same time frame was $29,819! We compared that figure to the prices for the 50 most expensive private schools in the nation. There was not much difference in the prices. In Newark, where the annual cost to the taxpayers for each school child now exceeds $25,000, hard working parents are forced to pay exorbitant taxes, as their children continue to receive subpar educations. Governor Christy has agonized over the inequality of treatment between children, based solely upon where they live. While private schools continue to be far less expensive, and in many cases, have higher academic standards than their public counterparts, there is still no tax credit for New Jersey parents that wish to send their send their children to private schools.

In 2002, the United States Supreme Court visited the issue of whether a school voucher program would, in some cases, be unconstitutional. The matter of Zelman v. Simmons-Harris, 536 U.S. 639 (2002) dealt specifically with the issue of whether the Establishment Clause of the Constitution would prohibit school vouchers on the basis that they are often used to fund a religious education. In writing for the majority, Chief Justice Renquist looked at several other cases in which the limits of Establishment Clause were analyzed. Justice Renquist remarked that "a program [which] was one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools, was sufficient for the program to survive scrutiny under the Establishment Clause." There was little doubt that the majority of private schools had a religious affiliation. Nevertheless, the intangible aid derived from those religious institutions was not sufficient to derail the voucher programs.

In New Jersey, over half of the real estate tax funds collected is used to fund the public school systems. Therefore, a voucher payment of even half of the aforementioned $17,000 that it costs to publicly educate a child for one year would result in excess of a 25% reduction of all real estate tax bills. It would also be enough to pay the entire tuition at many private schools, and increase educational opportunities for those who choose to remain at the public schools. Unfortunately, until vouchers are offered, New Jersey taxpayers can look forward to paying the largest real estate taxes in the nation. Of course, if your taxes are high because you are over-assessed, you can still call our office to handle your appeal.