Jason R. Rittie, Esq. of Denville, NJ law firm Einhorn Harris Ascher Barbarito & Frost, P.C. presented a seminar on Landlord/Tenant Law for CLE credits. Part two discusses options that Landlords may have when the deal goes bad

1. Jason R. Rittie, Esq.
Einhorn, Harris, Ascher, Barbarito & Frost PC
165 East Main Street
Denville, New Jersey 07834
(973) 627-7300
Jrittie@einhornharris.com

2.  Breach of Contract and Causes For
Eviction
◦ Non-Payment of Rent
◦ Conviction or Guilty Plea of Drug Offenses, Assault,
or Terrorist Threats, or Theft
◦ Disorderly Conduct
◦ Destruction, Damage, or Injury to Premises
◦ Habitual Late Payment
◦ Continuous Substantial Breach of Covenants or
Agreements

3.  Written Lease Terms Control
◦ Notice and Cure Periods
◦ Grace Periods
◦ Non-Payment of Rent requires no notice under
Anti-Eviction Act
◦ Late Charges
◦ In-sufficient Funds/Returned Check Fees
◦ Collection Costs (filing fees and attorneys’ fees)

4.  Eviction from Premises – Special Civil Part –
Landlord/Tenant Court
◦ Judgment for Possession
◦ Warrant for Removal
 Breach of Contract Suit – Law Division or
Special Civil Part depending on size of claim
 Duty to Mitigate Damages

5.  A "ground lease" is a long-term lease of land on which the
Tenant plans to construct substantial income-producing
improvements. Ground leases are of extremely long
duration.
 A disadvantage of a ground lease for the Tenant is that the
Tenant’s default or breach of the terms, covenants, and
conditions of the lease may subject the Tenant to eviction
and the complete forfeiture of the leasehold estate.
 Although this possibility is common to all leases, the
consequences under a ground lease are likely to be more
acute because of the Tenant’s large investment in the
improvements constructed on the land.

6.  “Abandonment” occurs when the tenant
leaves the premises vacant with the avowed
intention not to be bound by the lease.
 “Surrender” is to relinquish the relationship of
landlord and tenant; to end all rights, duties,
and obligations under the lease; and to
terminate the lease prior to the end of the
lease term. Surrender must be mutual.
 In New Jersey, surrender of a lease may be
express or implied by law.

7.  To constitute surrender by operation of law,
there must be both an abandonment by the
tenant and an acceptance of the
abandonment by the landlord.
 Mere receipt of keys by the landlord and an
attempt to re-rent the premises may not
alone, constitute acceptance of the surrender.
 Abandonment absent surrender and
acceptance constitutes a breach of the lease.

8.  Abandoned Property Law, N.J.S.A. 2A:18-72
through 2A:18-84.
◦ Applicable to both residential and commercial
tenancies.
◦ However, a written non-residential lease may
provide that the provisions of the Statute do not
apply.
◦ Requires written notice to tenant concerning
content, delivery and storage.

9.  A warrant for removal must have been executed
and possession of the premises returned to
landlord; or the tenant has given written notice
that he/she is relinquishing possession of the
premises.
 Compliance in good faith with the requirements
of the law is a complete defense in any action for
loss or damage of property.
 If landlord does not comply with the law, tenant
is relieved of any liability for reimbursement of
landlord’s costs and is entitled to recover up to
twice the actual damages sustained by tenant.

10.  All leases, whether written or oral, give the
tenant “exclusive possession” of the
premises.
 In a written lease, landlord’s duty not to enter
the premises is called the Covenant of Quiet
Enjoyment.
 The Right to Inspect/Enter Premises must be
in the written Lease. Otherwise, a landlord
may not lawfully enter the premises.

11.  Lease should also provide landlord with a
copy of all keys and a prohibition on tenant
changing the locks.
 New Jersey does allow a landlord to enter into
the premises only in a few special
circumstances.
 Without right in written lease or by
permission, entry by landlord is a “trespass”
and if continuous, can constitute
“harassment.”

12.  Even if given legal authority to enter the
premises, a landlord may only enter in a
peaceable manner.
 Actions for Unlawful Entry or Detainer N.J.S.A.
2A:39-1 through 2A:39-8.
 Unlawful Entry and Detainer occurs when a
landlord enters the premises peaceably or
forcibly and then detains the tenant’s
property by force or the threat of force,
without consent or judgment from the Court.

13.  Forcible Detainer: occurs if the landlord enters
the premises forcibly or legally, with tenant’s
permission or a court order, and then uses force
to detain the property.
 Unlawful Detainer: occurs if a tenant willfully
and without force, holds over at the premises
after written notice demanding delivery of
possession has been given to tenant.
◦ If tenant is found guilty, landlord can recover double
rent for as long as tenant holds over.
◦ Also applies, if tenant gives notice that it will be quitting
the premises, and then holds over. (N.J.S.A. 2A:42-5 and
2A:42-6)

14.  An eviction is an actual expulsion of a tenant
out of the premises.
 For most residential tenancies, a landlord
must have good cause to evict a tenant.
 The Anti-Eviction Act , N.J.S.A. 2A: 18-61.1
was created to protect blameless tenants
from eviction and was adopted in recognition
of the housing shortage in NJ.

15.  A summary dispossession action against a
tenant is governed by one of the following
Statutes:
◦ The Summary Dispossess Act (N.J.S.A. 2A:18-53);
or
◦ The Anti-Eviction Act (N.J.S.A. 2A:18-61.1).
◦ The Summary Dispossess Act applies to all other
rental or residential properties (not otherwise
covered by the Anti-Eviction Act), and including
commercial tenancies.
◦ Under both Acts, notice requirements are of utmost
importance, because a Court can dismiss the
action.

16.  The law applies to most residential properties
including:
◦ Single-family homes
◦ Mobile homes and land in a mobile home park
◦ Apartment buildings and complexes
◦ Rooming and boarding homes
 Does not apply to owner-occupied (landlord/owner
lives there) two- or three-family dwellings
 May not apply to hotel guests, motel guests
 Does not apply to guest houses rented to transients or
seasonal tenants

17.  There are a number of causes for eviction.
 Each cause, except for nonpayment of rent,
must be described in detail by the landlord in
a written notice to the tenant.
 Depending on the cause, a certain amount of
time must pass after delivery of written notice
before a landlord may begin eviction action.
 Landlord-Tenant Section, Special Civil Part

18.  The Summary Dispossess Act contemplates
two different notice provisions:
◦ Notice to Quit
 3 Months, 1 month or same as term (N.J.S.A.
2A:18-53a.)
 3 days (N.J.S.A. 2A:18-53c.)
◦ Demand for Possession
 May be served at any time prior to filing the Complaint;
and
 Almost always combined with Notice to Quit.
(No notice is required for non-payment of rent, and in
commercial tenancies, there is no Notice to Cease.)

19.  A landlord may only legally recover
possession of premises by consent of the
tenants, or through the legal process of
eviction.
 Judge enters a Judgment for Possession by
default or after hearing case.
 A warrant for removal must be issued and
executed by an officer of the Court to legally
effectuate the eviction.

20.  The law does not allow the warrant for
removal to be issued by the Court Clerk until
at least 3 days after the Judge enters a
judgment for possession.
 Once the court officer serves tenant with the
warrant for removal, tenant has 3 days to
move out.
 If tenant does not move out or tenant does
not contest the warrant and get a stay, the
court officer may evict tenant, remove
belongings and/or lock out tenant.

21.  Don’t do it – only an officer of the court can
legally physically evict a tenant after issuance
of warrant for removal.
 “Self-help” evictions are not permitted in NJ
under any circumstances (applies to both
residential and commercial tenancies).
 A landlord may not padlock, disconnect
utilities or otherwise block entry to a rental
premises.

22.  Judgment for Possession
 Warrant for Removal
 Separate Breach of Contract suit resulting in
award of damages
◦ Lease provisions typically provide landlord with
options, for example:
 Landlord can terminate lease and sue tenant for back
rent due and owing
 Landlord can re-take possession of premises, and seek
to re-let the premises to a replacement tenant, suing
for any costs and expenses incurred in connection with
re-letting and for any difference in rental amounts

23.  Collecting A Money Judgment
◦ Execution on Goods and Chattels (Personal
Property)
◦ Bank Levy
◦ Execution against Wages
◦ Docketed Judgment
◦ Use of Information Subpoena
◦ Court Order for Discovery

24.  Protect privacy
 If a credit report or another type of consumer
report is used to deny a rental application,
Tenant must be advised, and given the name,
address, and phone number of the agency
that provided the information.

25.  Under NJ law, a foreclosing mortgagee may not
evict tenants, unless there are grounds under
Anti-Eviction Act.
 Federal Foreclosure Law: 12 USC § 5220 the
Helping Families Save Their Homes Act of 2009,
before a tenant can be evicted due to foreclosure,
the landlord must provide the tenant with a 90
day notice to quit when the foreclosed property
has been purchased by a buyer who wants to
personally occupy it as his primary residence.
 Federal Law does not preempt any State or local
law that provides longer time periods or other
additional protections for tenants.

26.  N.J.S.A. 2A:50-69 et seq.
◦ Property acquired in Foreclosure containing one or
more residential units requires written notice, in
English and Spanish, within 10 business days after
the sale.
◦ Must tell tenants that property ownership has
changed, and that they are not required to move.
◦ Notice requirements to tenants PRIOR to the
transfer of title due to a Foreclosure Action.
◦ Notice requirements to tenants AFTER the transfer
of title due to a Foreclosure Action.

27.  Alternative Dispute Resolution: Arbitration
and Mediation
 May be provided in written Lease (typically
seen in determining fair market rent on
renewal, or as a condition to commencing a
lawsuit)
 Mediation is strongly encouraged at
Landlord/Tenant Court (non-binding)