Landlord Tenant Seminar 2011

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Landlord Tenant Obligations

A. Tenant Obligations

1. Residence in Tenancy Not Required: In order to retain the protections of the Anti-Eviction Act, it is not necessary that Tenant reside in premises. 56 Glenwood Corp. v. Plotkin, 248 NJ Super. 50 (Law Div. 1990). Tenant left premises in 1982 to live with her children in New York as her husband had passed and she became ill. Her furniture and belongings remained in the leased premises and she continued to pay rent. The Court rejected the landlord's claim that she Abandoned the property simply because she no longer resided in the premises. As long as rent was paid and no lease violations, perpetual lease.

a) Tenant need only Pay rent and follow rules and regulations of lease (if any any)

2. Pay rent:

a.) Must Pay rent. Duh, Per Charlie Sheen.

b.) Additional Rent-must pay additional rent if it is specifically defined as Aadditional rent@ in the lease (ie. Utilities, late fees, attorney=s fees) Ivy Hill Park Apts. V Sidisin, 258 N.J. Super. 19, 22 (App. Div. 1992) Certif. denied 130 N.J. 397. HUD/Rental Assistance tenants cannot be charged late fees or attorney=s fees or court costs.

c.) Acceptance of parties payments prior to judgment is acceptable and will not void the action. Acceptance of partial payments after judgment is entered vitiates the judgment. (unless pursuant to Court Order or agreement by the parties) See Housing Action of East Orange v. Leff, 125 N.J. 429, 434-435 (Law Div. 1973).

(d) Habitability defenses: Tenant claiming habitability issues must provide notice of defect and allow landlord a reasonable time to cure. Marini v. Ireland, 56 NJ 130 (1970). Withhold rent and ultimately deposit into court.

3. Must not Give Grounds for Cause Eviction:

a.) Notice Cases

All causes other than non-payment are for Agood cause.@

4. Remove personal belongings at end of lease. (Eventually) Tenants Subject to (1) (1) The Abandoned Property Act: N.J.S.A. 2A:18-72, et. seq.

a.) Does not apply to non-residential tenancies where there is a specific lease clause concerning disposition of tenant property.

b.) In order for property to be determined to have been abandoned, the landlord must first advise the tenant in writing that the property will be stored (the reasonable expenses charged to the tenant civilly) for a period of thirty (30) days whereupon tenant may pick up said property. N.J.S.A. 2A:18-73-74. After thirty (30) day period, landlord may dispose of tenant property at public and private sale in accordance with the U.C.C. 12A:9-504. Property deemed to have insignificant value may be destroyed.

c.) Perishables and pets no need to provide notice.

2.) Commercial Tenancy

a.) Although Act does not apply, constitutional due process rights still applicable. Callen v. Shermonstre, 92 N.J. 114 (1983). Unless waiver of notice on distrait of personalty is absolutely clear, landlord must proceed on Chancery Division Action with Order to Show Cause and Verified Complaint.

B. Landlord Duties during Tenancy

1. Duty to Supply Possession.

Contractual and also implied (Covenant of Quiet Enjoyment?) Adrian v. Rabinowitz, 116 NJL 586, 186 A. 29 (NJ Sup 1936). Landlord obligated legally and actually to deliver possession as stated in the lease upon commencement. Regardless of unlawful holdover by third party, earlier tenants.

2. Covenant of Quiet Enjoyment:

Covenant of Quiet enjoyment implied in leases throughout US. NJ glosses over this issue through implied warranty of habitability. However, under the covenant of quiet enjoyment, where it is breached substantially by the landlord, the courts have applied the doctrine of constructive eviction as a remedy for the tenant. Reste Realty Corp v. Cooper., 53 NJ 444,456-457 (1969). Look for express lease language or implied language from lease for Covenant of Quiet Enjoyment.

3. Disclosure of Manager, Lead Based Paint, Utility Charges, Rent Increase

(a) Disclosure of Manager:

Landlord Registration Statement:

a.) Landlords, in residential tenancies, unless accepted, must file a Landlord Registration Statement pursuant to N.J.S.A. 46:8-27 et.seq.

b.) Exception Landlord Registration Statement

No registration statement if it is an owner-occupied two (2) family residential property that:

1.) Has been certified to be lead paint free

2.) Was constructed and/or up after law

3.) Is a seasonal rental unit which is rented for six (6) months duration each year; or

4.) Has been certified as having a lead free interior by a certified inspector

c.) Must provide owner contact information, mortgage information, and contact information for landlord representative in the county for tenant in case of emergency; name and address for maintenance supervisor. (See sample Landlord Registration Statement)

d.) File with municipality where property located if two (2) or fewer rental units. All other landlords must file with the Department of Community Affairs. More than three (3) rental units must post the State form at dwelling. For all landlords, must serve on tenant at lease commencement. NJSA 46:8-27, 28 & 29.

(b) Lead Based Paint: Every Five years, all residential properties must be inspected for Lead Based Paint. NJSA 55:13A-1.

(c) Utility Charges: Must Be specified as "Additional Rent" to evict based on non-payment. Cannot evict Section 8 Tenant on failure to pay utility charges where is specified, and rent subsidy and tenant contribution is paid. Sundersan v. Royal, 386 NJ Super. 246 (App. Div. 2005)

(d) Rent Increase: Must Provide Notice to Quit, when applicable (month to month or at end of year lease before any automatic renewal) and another Notice of Rent increase with New lease for increased amount. NJSA 2A:18-61.1(f). If the tenant remains after a valid notice to quit and notice of increased rent, the tenant has agreed to the rent increase and can be evicted for non payment of rent if the increased amount is not paid.

Rent increases must not be Unconscionable= A rent increase that would not be acceptable to any fair and honest person, or which is monstrously harsh and shocking the conscience. Edgemere at Somerset v. Johnson, 143 NJ Super. 222 (Cty Dist Court 1976). (Note: this standard differs from Lease Changes which must be reasonable, whereas Rent increase must be unconscionable)

4. Maintain Fit Premises. State Codes, Implied Warranty of habitability, latent defects

a.) Provide Habitable Premises-regardless of any lease or agreement, any residential lease shall be subject to an implied warranty of habitability. The landlord warrants that at the inception of the lease there are no latent defects in facilities vital to the use o f the premises whether by faulty construction or normal wear and tear. This warranty continues through entire term of the lease. See Marini v. Ireland, 56 N.J. 130 (1970)

1.) Upon a breach of warranty of habitability a tenant may:

a.) Declare a constructive eviction and vacate, Reste Realty Corp. v. Cooper, 53 N.J. 444 (1969)

b.) Repair and deduct the cost of repair from rent. See Marini

c.) Withhold rent (and ultimately deposit into Court) pending a judicial hearing on the habitability claim. The Court may grant the tenant a rent abatement for extent and duration of habitability defect. Berzito v. Gambino, 63 N.J. 460 (1973)

d.) File a civil action to recover rent paid (overage). See Berzito

2.) Defect must rise to the level of habitability:

! Four (4) Part Test

a.) Were the premises reasonably fit for purposes they were rented? See Reste

b.) Do the defects render the premises uninhabitable in the eyes of a reasonable person. See Berzito

c.) Should the tenant reasonably be expected to live with the defect as an ordinary living condition. Millbridge Apts. V. Uniden, 151 N.J. Super. 168 (Camden Cty. Dist. Ct. 1977)

d.) Is the subject of the defect an amenity or a necessity? Timber Ridge Townhouse v. Dietz, 33 N.J. Super. 577 (Law Div. 1975)

! Criteria to be Considered :

1.) Has there been a violation of any applicable housing code or building or sanitary regulations?

2.) Is the nature of the deficiency or defect such as to affect a vital facility?

3.) What is its potential or actual effect upon safety and sanitation?

4.) For what length of time has it persisted?

5.) What is the age of the structure?

6.) What is the amount of rent? In Housing Authority of Newark v. Scott, 137 N.J. Super. 110 (App. Div. 1975), the Court held that tenants in public housing have the same right to a rent abatement as any other tenant.

7.) Can the tenant be said to have waived the defect or be estopped to complain?

8.) Was the tenant in any way responsible for the defective condition? 63 N.J. at 470

3.) Tenant must provide notice of defect and allow the landlord a reasonable time to cure. Marini, 63 N.J. at 469

4.) Examples of Habitability Defects

! Air Conditioning Park Hill Terrace Associates v. Glennon, 146 N.J. Super. 271 (App. Div. 1977)

! Failure to control noise from upstairs tenants Millbridge Apts. v. Linden.

! Sewage problem, drainage problems, rotten wood in the foundation, exposed wires C.F. Seabrook Co. v. Beck, 174 N.J. Super. 577, 595 (App. Div. 1980)

5.) Examples of items not arising to Habitability

! No swimming pool as promised in lease Timber Ridge Town House v. Dietz, 133 N.J. Super. 577 (Law Div. 1975)

! Inadequate papering and painting C.F. Seabrook Co. v. Beck

6.) Commercial Leases-The Marini Doctrine implied habitability has been applied to commercial tenants. Reste Realty, Deminari v. Burns, 204 N.J. Super. 274 (App. Div. 1973). The analysis would involve close scrutiny of lease terms to evaluate expectations of parties as to what is a necessity as opposed to merely an amenity.

7.) Certificate of Occupancy: Must comply with any local ordinances regarding rental CO or Landlord cannot lawfully collect rent. Khoudary b. Salem County Bd. Soc Svs., 260 NJ Super. 76 (App. Div. 1992). Failure of CO goers to habitability of unit. Regarding Money damages, failure of CO renders the premises not lawfully inhabitable and therefore no rental payment obligation. Without a CO, landlord could not lawfully provide possession, and therefore, no rent obligation arose for months that the CO was not obtained. Seee NJSA 40:48-2.12m allowing municipalities to set conditions through ordniance for occupancy requirements (Some towns require rental CO's some towns may not)

5. Duty of care:

(a) A Landlord has the responsibility of maintaing the premises in good repair. Dwyer v. Skyline Apt. Inc., 123 NJ Super. 48, 51 (App. Div.) aff'd o.b. 63 NJ 577 (1973). Landlord must have known or should have known of the condition prior to the occurrence and had an opportunity to correct it. Where the landlord created the defect, the notice to the landlord is not required. A landlord has the duty exercise reasonable care in maintaining those portions of the premises under his control "in a reasonably safe condition for the use and enjoyment of tenants and their guests. Anderson v. Sammy Redd & Assoc., 278 NJ Super. 50, 54 (app. Div. 1994). That duty extends to the common areas that remain under his control and to areas inside the tenants apartment where the landlord has undertaken maintenance and repairs, and includes his obligations to disclose known dangerous conditions in the premises. Id. At 54-55.

(b) Criminal Actions of Third Parties: Kuzmicz v. Ivy Hill Park Apartments, 147 NJ 510 (1997) Seminal case establishing duty of landlords to protect against criminal acts of third parties.. Foreseeability of injury and fairness is the key to determining whether a duty exists and what extent. The degree and extent of prior incidents or any statues requiring landlord action (Deadbolts failed to be installed by landlord held responsible for burglary Braitman v. Overlook Terrace Corp., 68 NJ 368 (1975))

C. LANDLORD'S ACCESS RIGHTS

1. During Tenancy: Must Be reserved in the lease. Common law right of re-entry for access in case of emergency, but otherwise no right of re-entry if not in lease. Showings of house during tenancy would presumably not be permissible in the event that an appropriate lease provision provides for same.

2. Special Circumstances:

Court Order

Repairs: Tenant must make premises available to landlord's agents to make repairs.

Extended Absences: Tenant's extended absences from premises will not constitute abandonment of premises where rent is being paid and lease provisions are being complied with. 56 Glenwood Copr v. Plotkin, 248 NJ Super. 50 (Law Div. 1990).

Exception: Section 8 tenants: Pursuant to Section 8-13 (HUD Handbook 4350.3) Extended absences or abandonment of the unit as defined in the house rules for the property, or in state or local law, may constitute basis for lease termination.

Abandonment: Make sure that tenant has removed all personal belongings before assuming premises have been abandoned. Any doubt, file eviction action and obtain judgment.

3. Law Enforcement Access: Not without a warrant.

III. TERMINATION OF TENANCY AND TENANT REMEDIES AND DEFENSES

A. Termination for no Cause:

1.) Non-payment of Rent

No notice required.

a.) Rent based upon either oral or written agreement.

b.) Additional Rent-must be specifically defined as Aadditional rent@ in the lease (ie. Utilities, late fees, attorney=s fees) Ivy Hill Park Apts. V Sidisin, 258 N.J. Super. 19, 22 (App. Div. 1992) Certif. denied 130 N.J. 397. HUD/Rental Assistance tenants cannot be charged late fees or attorney=s fees or court costs.

c.) Acceptance of parties payments prior to judgment is acceptable and will not void the action. Acceptance of partial payments after judgment is entered vitiates the judgment. (unless pursuant to Court Order or agreement by the parties) See Housing Action of East Orange v. Leff, 125 N.J. 429, 434-435 (Law Div. 1973).

d.) Mandatory five (5) business days grace period. N.J.S.A. 2A:42-6.1. No delinquency or late charge Business days = (no weekends or holidays).

e.) Dismissal of the Complaint upon payment of rent. N.J.S.A. 2A:42-9. Pay prior to entry of judgment.

(2) Tenant's Liabilities

(1) Month to Month lease: Must give one full month's notice to terminate. Notice in the middle of the month will be effective at the end of the next month. SDG v. Inventory Control Company, 178 NJ Super. 411 (App. Div. 1981).

(2) Lease for Term: Would have to give that term's notice. However, Querry: Landlord's duty to mitigate damages?

It is noted that mitigation of damages applies equally in commercial and residential tenancies and that it is the lessor who bears the burden of showing the efforts made to mitigate the damages. McGuire v. City of Jersey City, 125 NJ 310, 323 (1991); Veliz v. Meehan, 258 NJ Super. 1 (App.Div. 1992). More recently, in Harrison Riverside Limited Partnership v. Eagle Affiliates, Inc., 309 NJ Super. 470, 473 (App. Div. 1998), the Appellate Division emphatically affirmned the duty to mitigate in commercial tenancies:

"There is no dispute that a commercial landlord must make "reasonable" efforts to mitigate its damages after a tenant breaches the lease." (Citing Mcguire supra.)

See also Fanarjian v. Moskowitz, 237 NJ Super. 395, 401 wherein the Court held for the first time the "rule requiring mitigation of damages" in commercial tenancies. The court in Fanarjian, noted that New Jersey courts have long taken into account the public policy reasons for requiring mitigation of damages in residential tenancies, even imposing such a duty on leaseholds in other states that do not require mitigation of damages. The court then explained its reasoning for applying the mitigation of damages rule in Commercial settings:

"In our view, reason and logic, as well as public policy, support the extension of the mitigation of damage requirement to commercial lease settings. Such policy consideration include denying the injured party the opportunity to sit idly by and exacerbate damages, discouraging economic and physical waste; and society's interest in encouraging that vacant property be put to a practical use as soon as possible." Fanarjian at 404.

B. For Cause

C. Notice to Quit: Clear and Precises. See Chart Above.

D. Notice Service Requirements: Pursuant to 53 (a) and (c) actions (tenancies not covered by the Anti-Eviction Statute) Personal Service upon tenant or person over 14 and member of household, or post or affix upon door if conspicuous if no person actually occupying. NJSA 2A:18-54

Anti-Eviction Act tenancies, service by certified and regular mail also permissible. NJSA 2A:18-61.2.

E. SPECIAL ISSUES

1. Computation of Time: Date of Service must be at least on the day before the rental month begins. PMS Realty Co. v. Guarino, 126 NJ Super. 134 (Cty Ct. 1973). A Notice served on the June 1^st was to end on July 1^st was held fatally defective.

Deficient Service of Notice will be applicable on the next anniversary date after receipt of the Notice. Harry's Village, Inc. v. Egg Harbor Twp., 89 NJ 576 (1982).

2. Waiver/Estoppel Anti-Eviction Act. Prohibits and renders unenforceable any waivers of the tenant's right sunder the act as being against public policy. NJSA 2A:18-61.4 and 2A:18-61.55

Acceptance of Rent: If it is a non-payment of rent case, acceptance of rent prior to judgment (partial) will not constitute a waiver by the landlord of the grounds for evictions. Acceptance of Rent after a judgment of Possession will vacate any judgment unless pursuant to a valid consent judgment or agreement to stay execution with payment provisions. NJSA 2A:42-10.2 and 10.7 provide that payments made during a hardship stay period will not create a new tenancy.

Acceptance of rent after the effective date of a Notice To Quit or demand for possession, will constitute a waiver by the landlord of the cause for eviction and the case will be dismissed. Carteret Properties v. Variety Donuts, Inc., 49 NJ 116 (1967)

Receipt of rent differentiated from Acceptance. Mere receipt receipt without deposit, or keeping for a substantial period or exercising dominion and control over the rent will not be acceptance.

3. Double rent for hold-over: NJSA 2A:42-5 imposes civil penalty for holdover tenants who previously provided notice to quit the tenancy.

"If a tenant of real estate shall give notice of his intention to quit the premises by him held at a time specified in such notice, and shall not deliver up the possession of such real estate at the time specified in the notice, such tenant, his executors or administrators, shall, from such time, pay to his landlord or lessor, his heirs or assigns, double the rent which he should otherwise have paid, to be levied, sued for and recovered at the same times and in the same manner as the single rent before the giving of such notice could be levied, sued for and recovered. Such double rent shall continue to be paid during all the time such tenant shall continue in possession after the giving of such notice."

This shall only be enforceable in a civil action, not in a non-payment eviction case. Parkway v. Curry, 162 NJ Super. 410 (Dist Cr. 1978)

F. TENANT REMEDIES AND DEFENSES

1. Failure to deliver possession: Contractual and also implied (Covenant of Quiet Enjoyment?) Adrian v. Rabinowitz, 116 NJL 586, 186 A. 29 (NJ Sup 1936). Landlord obligated legally and actually to deliver possession as stated in the lease upon commencement. Regardless of unlawful holdover by third party, earlier tenants.

2. Failure to Obtain CO. Certificate of Occupancy: Must comply with any local ordinances regarding rental CO or Landlord cannot lawfully collect rent. Khoudary b. Salem County Bd. Soc Svs., 260 NJ Super. 76 (App. Div. 1992). Failure of CO goers to habitability of unit. Regarding Money damages, failure of CO renders the premises not lawfully inhabitable and therefore no rental payment obligation. Without a CO, landlord could not lawfully provide possession, and therefore, no rent obligation arose for months that the CO was not obtained. See NJSA 40:48-2.12m allowing municipalities to set conditions through ordinance for occupancy requirements (Some towns require rental CO's some towns may not).

But See McQueen v. Brown and Cook, 342 NJ Super. 120 (app. Div. 2001) cert granted, 171 NJ 44 (2002), aff'd o.b. 175 NJ 200 (2002) held that a lease is not automatically void simply because a CO was not obtained. Equitable factors should apply. Did the tenants reside in premises? Pay rent? Was there a defect with premises to affect habitability? See also Gianesh v. Krolik, A-4049-917T5 (NJ Super. App. Div. May 28, 1999) upholding a judgment for possession where landlord had not obtained CO.

2. Unlawful Ouster/Self Help Evictions: All evictions must be through court process. NJSA 2A:39-1 prohibits a landlord from forcing a residential tenant from the leased premises without judicial action. Action may be brought in the Superior Court or Special Civil part and may seek injunctive relief returning tenant to premises and damages (proximately caused by illegal lockout including attorney's fees) and treble damages if premises occupied by another.

3. Retaliatory eviction:NJSA 2A:42-10.13 Reprisals and Retaliation Act.. Applies only to residential tenancies protected by 61.1.

No landlord shall serve a notice to quit or institute any action to recover possession as reprisal for:

A) A tenant's efforts to enforce rights under the lease or laws of NJ or US.

B) A tenant's complaint to gov't body for health or safety law violations

C) A tenant being involved as a member or organizer of any lawful organization

D) A tenant's failure to comply with change in tenancy demanded by landlord, it the landlord changed the tenancy terms as a reprisal for any of the actions of the tenant in (a)-(c) above.