Articles Posted in Landlord Tenant

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.

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.

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 an initial consultation.

1367015_modern_apartment_building.jpgOur office previously reported on techniques that landlords sometimes employ to combat the onerous restrictions imposed by New Jersey’s concept of the “life tenant.” However, during the past several months since we wrote that article, we are still receiving an alarming number of questions from landlords about their ability to terminate a residential tenancy simply because the lease is expired. Accordingly, we are now going to elaborate on the concept of the “life tenant” in greater detail.

The overwhelming majority of residential tenants are protected by New Jersey’s Anti-Eviction Act. N.J.S.A. 2A:18-61.1 Et. Seq. Specifically excepted from the restrictions of the Anti-Eviction Act are some seasonal tenants and certain tenants of owner occupied houses. All other tenants enjoy the comfort of knowing that they cannot ever be evicted except for good cause.

The Anti-Eviction Act then goes on to discuss the various causes under which a residential tenant can be evicted. Depending on how you count them, you should find about 17 different allowable reasons for evicting the residential tenant. The reasons include the following:

The prohibition against double jeopardy, which precludes a person from being tried twice for the same crime, has an equivalent in the civil courts. The concept of Res Judicata stands for the principle that a person cannot be sued twice for the same dispute. However, similar to the prohibition against double jeopardy, Res Judicata is not without exceptions. One such exception involves actions in New Jersey’s Landlord Tenant Courts. The Landlord Tenant Courts in New Jersey are Courts of extremely limited jurisdiction. More specifically, the only issue that can be resolved in a proceeding in Landlord Tenant Court is whether or not the tenant is to be evicted. All other issues must be adjudicated separately in different venues. This duality has led to multiple Court decisions limiting the bar against subsequent actions, even in cases where both actions are adjudicated in Landlord Tenant Court.

Generally, the Courts have ruled that a landlord tenant proceeding will not bar subsequent actions involving the same parties in cases where the relief sought is different than the original action. However, in light of this fact, we were left uncertain as to how the Court would rule in a case where a landlord brought a nearly identical action twice against the same tenant. We recently had an opportunity to test the limits of Res Judicata in landlord tenant actions.

The facts of the matter were quite simple. The allegation was that the tenant had caused purposeful or grossly negligent destruction to the rented premises. To support this claim, the landlord produced a long list of damages she claimed the tenant or his guest had caused. Under the law, evictions for grossly negligent destruction to a residential dwelling can be filed upon 3 day’s advance notice to the tenant. In the past, our firm has been successful at evicting several tenants under this cause. The problem in the pending case, however, was that the landlord had already unsuccessfully tried this matter with a previous attorney. The landlord then came to our firm to see if she could obtain a different result.

We started our action by changing the premise upon which the eviction was sought. While the original action had argued simply that the tenant had damaged the premises, our action argued that the tenant violated the written lease by failing to pay for the damages. Under New Jersey’s eviction law, a residential tenant can also be evicted for violations of the landlord’s rules and regulations; however, the requisite Notice periods required for this cause are quite onerous.

The Defendant’s attorney argued that our action was really a disguised version of the original action. I argued that the cause of action was substantially different and that Res Judicata should not apply in either case. After a few hours of arguments, the Court recessed for lunch, while the parties continued to discuss possible settlement options. Unfortunately, the matter eventually settled, and we were left with no indication as to how the Court would rule upon such an issue.
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GAVEL.jpgAccording to a recent report in Newark’s Star Ledger, the average rent for a New Jersey 2- bedroom apartment is $1302 per month.* However, for thousands of landlords who are not being paid their rent on time, the statistic translates to more than $40 per day of lost rental income. In many cases, having a few tenants who are not paying rent results in a major financial loss for landlords.

In 1947, in an effort to lend efficiency to the eviction process, the State of New Jersey created a “Summary Proceeding” to handle eviction actions. Although, the process has undergone several statutory and regulatory changes since then, the concept of allowing New Jersey landlords a method to quickly remove tenants has remained unchanged. Today, landlords can typically expect that an eviction action will be scheduled for trial about 1 month from the date of filing, and that a tenant can be removed within about 2 weeks from the day a Warrant of Removal is ordered.

The Summary Proceeding is much faster than a typical ejectment action, thus preventing landlords from losing valuable time in replacing a non-paying tenant. There is, however, an inherent limitation in the Summary Proceeding. Because tenants are sometimes served with a copy of the Tenancy Summons as little as ten days before trial, requests for Discovery and the filing of Counterclaims are not permitted. While the tenant may assert a claim against the landlord on the day of Court that would constitute an equitable defense to the underlying claim for eviction, tenants in an eviction proceeding may not assert any Counterclaims for damages against the landlord. Therefore, tenants who wish to bring a claim against the landlord will often need to either have the tenancy matter transferred are file a separate action against the landlord in another division of the Court.

umpire.bmpIn 1996, in an effort to solve an epidemic of rampant drug use in publicly assisted housing, President Clinton announced a “one strike and you’re out” initiative for Section 8 and public housing projects. The new guidelines included more comprehensive screening and stricter eviction policies relating to drug use and criminal conduct. Under the “one strike and you’re out” policy, public housing authorities are allowed to refuse admission to any household who has been evicted from public or Section 8 housing. In the matter of Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002), the United States Supreme Court affirmed the right of public housing authorities, to evict entire public housing households whenever any member of the household, or any household guest, engages in drug-related or certain other criminal activity.

Notwithstanding the Rucker ruling, in the recent matter of Newark Housing Authority v. Martinez-Vega, Docket Number ESX-LT-20023-11, New Jersey Superior Court Judge Mahlon Fast placed some limitations on the powers given to housing authorities. Judge Fast, whose name many may recognize as being the long time authority in the area landlord tenant law, ruled that the Newark Housing Authority had exceeded its powers in attempting to evict a tenant whose visiting son had been arrested at the apartment for gun and drug possession. In so ruling, Judge Fast indicated that a tenant should not be automatically penalized for the actions of a non-resident family member.

The decision by Judge Fast is, in fact, consistent with the decision Appellate Court’s decision in the matter of Oakwood Plaza Apartments v. Smith, 352 N.J. Super. 467 (2002). In that matter, the Court ruled that eviction actions from federally subsidized housing projects cannot be arbitrary or capricious and that it is the duty of the courts to ensure that landlords exercise discretion in properly weighing the salient factors.

Apt 5.jpgIn the week between Christmas and New Year’s Day, when landlords have historically encountered the most difficulty finding tenants to fill their vacancies, the issue of rent loss is once again in the forefront of our discussion on maximizing revenues for all the landlords we represent. In 2007, we saw a surge of buildings being sold and converted to condominiums. Unfortunately, in many cases, their developers have been unable to sell those condominiums. To make matters worse, the bad economic conditions and failing job market have forced younger rental prospects to continue to live with their parents, and older prospects to either downsize, move in with roommates, or to simply move out of New Jersey. The result is a high number of vacancies and few tenants to fill them. Landlords who are used to pre-screening their tenants for credit problems and eviction history may no longer have that luxury. Higher than ever vacancy rates have forced landlords to either rent to a high risk tenant face the proposition of leaving the apartment vacant. But perhaps there is another option that has been overlooked.

In a recent event our office sponsored, we met a gentleman with a rather unique business. He insures risky tenants. When a tenant with a less than perfect credit rating or eviction history wants to get an apartment, and landlords do not want to take the risk, the tenant can pay the business a rather modest fee to essentially write an insurance policy. In the event that the tenant default s in the lease, the landlord still gets paid, and therefore has not assumed any risk. The company calling themselves “Insurent” has insured thousands of tenants throughout New York State and is now in the process of expanding their practice into New Jersey. Offering a variety of services focused on securing the performance of tenants, Insurent enables landlords to keep their buildings full, while also guaranteeing that the landlord will not take the risk.

Finally, with the increase in the number of companies now offering rental insurance services, landlords who avail themselves of rent guaranteeing services must remember to use extra caution to ensure that they continue to employ the same uniform standards for acceptance of all applicants. Historically, income, credit worthiness, eviction history and criminal background have been the four major factors in determining whether to accept or reject a tenant. Landlords who now choose to use rental insurance programs, will now be faced with the increased challenge of developing standards that will keep them protected from discrimination claims.

Nickel.jpgThe recent downturn in the economy has substantially impacted the business of residential rentals. As tenants continue to struggle to pay their rents on time, they also continue to incur late fees, thus further depleting their limited resources. The question then becomes whether late fees are allowed, and if so, how much of a late fee can be charged?

When Can the Late Fee be Charged?

In a standard non-payment of rent eviction case, it is clear that the Court’s jurisdiction is limited strictly to the issue of rents. It is therefore necessary for a landlord seeking a late fee as part an eviction mater to demonstrate that there is a written lease setting forth that late fees are “additional rent.” In cases where there is no written lease, or in cases where the written lease does not use the term “additional rent,” the late fee cannot be included as part of the balance that the tenant must pay in order to avoid eviction. It should also be noted that even when there is a written leases calling late fees “additional rent,” the landlord still cannot include that item in cases where the tenant is receiving Federal housing assistance.

Our firm previously reported on the importance of obtaining a Landlord Registration Statement. This time, we are going to discuss the Certificate of Occupancy. Unlike the Landlord Registration Statement, a Certificate of Occupancy is not a requirement for evicting a tenant in New Jersey. The lack of a Certificate of Occupancy may, however, bar recovery of rents in a civil action.

Most towns in New Jersey require a landlord to obtain a new Certificate of Occupancy each and every time a new tenant moves in to a residential dwelling. Some towns even require Certificates of Occupancy for commercial rentals. Inspections requirements for a certificate of occupancy vary greatly by municipality. All towns will check the operation of the smoke detectors, and in cases where there is gas heating, the carbon monoxide detector will also be inspected. Some municipalities will conduct much more thorough examinations, including items that are not even remotely related to safety issues in the rented premises.

While most landlords are familiar with the fines which the town may impose for failing to obtain a certificate of occupancy, few landlords are familiar with the more costly consequences which can result from such failure. In towns where certificates of occupancy are required, a dwelling rented without a certificate of occupancy constitutes an illegal contract. Consequently, in the matter of Khoudary v. Salem Board of Social Services, 260 N.J.S. 79 (App. Div. 1992), the Court ruled that a landlord who rents a dwelling without a certificate of occupancy does not have the right to file a suit for rents.