New Jersey Landlord Tenant Law: Understanding the Application to have a Judgment Set Aside

For the past 15 years, our office has been reporting on issues regarding New Jersey Landlord Tenant law. In today’s article, we will discuss the application for an Order to set aside the Judgment for Possession based on fraud or other good cause, pursuant to New Jersey Court Rule 4:50-1. These applications are generally made during the 3-business day “window” between the posting of the Warrant of Removal and the Execution of the Warrant of Removal (i.e.; the lockout). Tenants making these applications will allege a variety of perceived issues, which are generally not valid reasons for setting aside a verdict.

One common attempted defense is the tenant’s statement that he or she was never served with the Complaint. However, since a copy of the Complaint is served to the tenant via regular mail and another copy of the complaint is served to the tenant via hand-delivery to the dwelling, and the Special Civil Part Officer signs an affidavit, stating that he served the tenant, the argument that the tenant was not served is generally not credible, and are summarily dismissed by the Judge hearing the application.

Sometimes the tenant will state that he or she was in the hospital on the day of the Landlord Tenant Court date (a surprisingly common occurrence with tenants facing eviction). Provided that the tenant can show proper documentation of the hospitalization, the Court will be satisfied that there was excusable neglect in the tenant failing to appear in Court. However, a thorough Judge will then also attempt to determine whether there is a meritorious defense to the claim (i.e.; does the tenant still owe rent?). After all, it is not enough for the tenant to merely prove that he or she was unavailable on the day of Court. The tenant must prove that as of the day of Court, there really was no valid claim that should have existed.

As a practical matter, the determination of whether there is a meritorious defense is the only determination that needs to be made. Put simply, even if the tenant had no valid reason for missing Court, the proof that the tenant had paid all of the rent prior to the Court date should be sufficient to satisfy the Court that the Judgment for Possession should be set aside.

Similarly, we note that in cases where a Judgment for Possession has already been entered (whether by way of default or trial), Landlords are strongly advised not to accept any payments from the tenant after the Court date. In the case of settled matters, the landlord should not accept any payments after the Certification of Breach and Warrant of Removal have been submitted. Since the Court generally regards acceptance of rent under those circumstances as a waiver of the Landlord’s right to continue the eviction process, it follows that the Judgment should also be set-aside when that occurs.

Procedurally, since post-judgment applications filed on behalf of tenants are generally heard on the emergent basis, and with little notice to the Landlord, these applications are generally handled ex-parte and without the appearance of the landlord. However, since the Landlord must be afforded a fair opportunity to refute the allegations made by the tenant, the Court will generally first hear the tenant’s application to determine whether the application appears to constitute sufficient cause to delay or stop the eviction.  If the Court does find sufficient cause exists, the Court will grant a temporary Order delaying the eviction and also schedule “return date” when both parties should come back to Court to argue the issue. The return date is usually scheduled within a week of the initial application date.

In cases where tenants’ applications to have Judgments set aside are not successful, the Court will entertain other types of applications, including the application for Orderly Removal. In our next article, we will discuss these applications. For more information about Landlord Tenant law, please contact our office.