CHAPTER 5: EVICTION ARTICLE I: GROUNDS FOR ACTION FOR EVICTION. LT: Eviction of tenants generally

Transcription

1 CHAPTER 5: EVICTION ARTICLE I: GROUNDS FOR ACTION FOR EVICTION LT: Eviction of tenants generally A landlord may not terminate a tenancy or evict a tenant from rental premises without satisfying the requirements of this Chapter. Source: New. This section is new and added, at the suggestion of a commenter, for clarification. LT: Eviction; residential rental premises; grounds A tenant may be evicted from residential rental premises, other than from except residential rental premises as provided in section LT:5-1.1b. LT:5-1.3, only upon by execution of a judgment of possession entered in the Superior Court in a summary action only upon the establishment of any one of the following grounds, which shall be deemed good cause for the eviction: a. Failure to pay rent or willful destruction of rental premises. If the tenant: (1) fails to pay rent that is due in accordance with the lease or other agreement governing the tenancy,. provided that aany portion of rent unpaid by the tenant but used to continue the service of an electricity, gas, water or sewer public utility to the rental premises, after receipt of notice that the service was in danger of discontinuance because of nonpayment by the landlord, shall not be deemed to be unpaid rent for purposes of this section; or (2) fails to pay rent after service of a valid notice to vacate and a notice of increase of rent provided that the rent increase is not unconscionable and complies with all laws and municipal ordinances governing rent increases; or (3) willfully or by reason of gross negligence causes or allows destruction or damage to the rental premises or the leased real property of which the rental premises are a part; or b. Continuing conduct after service of notice to cease. If the tenant, after service of a valid notice to cease, continues to: (1) habitually and without legal justification pay rent after the date that it is due in an untimely manner; or (2) be so disorderly as to destroy the peace and quiet of the other tenants or occupants living in the rental premises or surrounding neighborhood; or (3) substantially violate or breach any of the landlord s rules and regulations governing the premises, provided such rules and regulations are reasonable and have 1

2 been accepted in writing by the tenant or made a part of the lease at the beginning of the initial lease term; (4) substantially violate or breach any of the covenants or agreements contained in the lease where sufficient language reserves a right of re-entry to the landlord for a substantial violation of the covenant or agreement, provided that the covenant or agreement is reasonable and was contained in the lease at the beginning of the initial lease term; or (5) in public housing under the control of a public housing authority or redevelopment agency, substantially violate or breach any covenants or agreements contained in the lease pertaining to illegal uses of controlled substances, or other illegal activities, regardless of whether sufficient language reserves a right of reentry is reserved to the landlord for a violation of the covenant or agreement, provided that the covenant or agreement conforms to federal guidelines regarding the lease provisions and was contained in the lease at the beginning of the initial lease term; or c. Criminal offenses. If the tenant or occupant or person whose conduct is a basis for eviction is convicted of or pleads guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under, any of the criminal statutes set forth in (1), (2) or (3) below, provided that in the case of a conviction for an offense set forth in (1) or (2) of this subsection, no action for eviction may be brought more than two years after the adjudication or conviction or more than two years after the person s release from incarceration, whichever is later, for an offense under subsections (1) or (2): (1) the Comprehensive Drug Reform Act of 1987, N.J.S. 2C:35-1 et seq. involving the use, possession, manufacture, dispensing or distribution of a controlled dangerous substance, controlled dangerous substance analog or drug paraphernalia within the meaning of that act in or on the rental premises, or the building and land appurtenant thereto or the mobile home park in which the rental premises are located, and has not, in connection with the sentence for that offense, either successfully completed, or been admitted to and continued upon probation while completing, a drug rehabilitation program pursuant to N.J.S. 2C:35-14; or (2) N.J.S. 2C:12-1 or N.J.S. 2C:12-3 involving assault or terroristic threats against the landlord, a member of the landlord s family or an employee of the landlord; or (3) N.J.S. 2C:20-1 et al., involving the theft of property from the landlord, the rental premises, or other tenants residing in the same building or complex; or d. Knowingly harboring or permitting occupancy. If the tenant knowingly harbors or harbored a person convicted of or who pleads guilty to any offense set forth in subsection c., or otherwise permits or permitted such person to occupy the premises for residential purposes, whether continuously or intermittently, except that this subsection shall not apply to the harboring of or permitting occupancy by a juvenile who has been adjudicated delinquent upon the basis of an act which if committed by an adult would constitute the offense of use or possession under 2

3 N.J.S. 2C:35-1 et seq., and nno action for eviction under this subsection based on an offense under subsections LT:5-1.2c.(1) or (2) may be brought more than two years after the adjudication or conviction or more than two years after the person s release from incarceration, whichever is later; or e. Liability in civil action for eviction based on criminal offenses. If the tenant or occupant or person whose conduct is a basis for eviction is found, by a preponderance of the evidence, liable in a civil action for eviction under this Chapter based upon an offense set forth in subsection c. or if the tenant knowingly harbors a person who committed such an offense, or otherwise permits the person to occupy the premises for residential purposes, whether continuously or intermittently, except that this subsection shall not apply to the harboring or permitting occupancy by a juvenile who has been adjudicated delinquent upon the basis of an act which if committed by an adult would constitute the offense of use or possession under N.J.S. 2C:35-1 et seq.; or f. Permissible use of premises by owner. If the owner of the rental premises seeks to: (1) permanently board up or demolish the rental premises because of having been cited by local or State housing inspectors for substantial violations affecting the health and safety of tenants and eliminating the violations is economically unfeasible; or (2) comply with the local or State housing inspectors, after having been cited with substantial violations affecting the health and safety of tenants, where doing so without evicting the tenant is economically unfeasible, in which case simultaneously with service of notice of eviction pursuant to this subsection the owner shall notify the Department of Community Affairs of the intention to institute eviction proceedings and provide the Department with such other information as it requires pursuant to rules and regulations, and the Department subsequently shall inform all appropriate parties and the court of its view with respect to the feasibility of compliance without eviction of the tenant and may, in its discretion, appear and present evidence; or (3) correct an illegal occupancy because of having been cited by local or State housing inspectors or zoning officers and doing so without evicting the tenant is unfeasible; or (4) permanently retire the rental premises from the rental market pursuant to the redevelopment or land clearance plan in a blighted area and the owner is a governmental agency; or (5) permanently retire the building or mobile home park from residential use or use as a mobile home park, provided this subsection shall not apply to circumstances covered under subsection f. (1), (2), (3) or (4); or (6) at the time of lease termination, alter the terms and conditions of the lease by proposing reasonable changes of substance, including but not limited to a change in the duration of the lease, which the tenant, after written notice, refuses to accept; provided that where a tenant has received a demand for possession under subsection LT:5-2.3b.(6) or has a protected tenancy status pursuant to Chapter 7, the owner shall have the burden 3

4 of proving that any change in the terms and conditions of the lease is reasonable and does not substantially reduce the rights and privileges to which the tenant was entitled; or g. Termination by landlord of employment of the tenant. If the landlord or owner conditioned the tenancy upon and in consideration for the tenant s employment by the landlord or owner, and the employment is being terminated; or h. Conversion from rental market to condominium or cooperative. If the owner of a building or mobile home park is converting two or more residential units or park sites in the building or park from the rental market to a condominium, cooperative or fee simple ownership, except other than as provided in subsection i., provided except that no action shall be brought commenced pursuant to this subsection against a senior citizen tenant or disabled tenant with protected tenancy status pursuant to under Chapter 7 of this Title so long as, in accordance with Chapter 7, the protected tenancy status has been not been terminated nor the protected tenancy period has not expired in accordance with that Chapter; or i. Personal occupancy by owner or buyer. If the owner of a building or mobile home park: (1) which is constructed as or being converted to a condominium, cooperative or fee simple ownership, seeks to evict a tenant whose initial tenancy began after the master deed or agreement establishing the condominium, cooperative or subdivision plat was recorded, because the owner contracted to sell the residential unit to a buyer who wishes to personally occupy the unit, and the contract of sale requires the unit to be vacant at the time of closing of title, provided that no action may be brought against a tenant under this subsection unless the tenant was served with a statement pursuant to section LT:5-8.3; (2) of three or less condominium or cooperative units seeks to evict a tenant whose initial tenancy began by rental from an owner of three or less residential units after the master deed or agreement establishing the condominium or cooperative was recorded because the owner wishes to personally occupy the unit, or contracts to sell the unit to a buyer who wishes to personally occupy the unit, and the contract of sale requires the unit to be vacant at the time of closing of title; or (3) of three residential units or less, seeks to personally occupy a unit, or contracts to sell a residential unit to a buyer who wishes to personally occupy the unit and the contract of sale requires the unit to be vacant at the time of closing of title.; or j. Violation of, or conduct contrary to, federal law. If a tenancy that is subsidized by the United States government in any manner, violates or is contrary to a federal law or regulation. Source: 2A: This section adopts the provisions of source section 2A: with some modifications in language, but categorizes by subject matter the grounds for eviction for the purposes of clarity and order. 4

5 Subsection a. is based on 2A: (a.), (f.) and (c.). Subsection b. is based on 2A: ( j.), (b.), (d.) and (e.). Subsection c. is based on 2A: (n.), (o.) and (q.). Subsection d. is based on 2A: (n.), (o.), (p.) and (q.). Subsection e. is based on 2A: (p.). Subsection f. is based on 2A: (g.), (h.) and (i.). Subsection g. is based on 2A: (m.) Subsection h. is based on 2A: (k.). Subsection i. is based on 2A: (l.). Subsection j. is new and suggested by a commenter to address issues that may arise in connection with federal laws. For example, 42 U.S.C (a) states that Notwithstanding any other provision of law, an owner of federally assisted housing shall prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program. Another example is where a tenant violates parole, in which case Federal law mandates eviction under 24 C.F.R LT: Eviction; owner-occupied residential; hotel, motel or guest house; occupancy by developmentally disabled person; grounds a. Upon establishment of the grounds set forth in subsection b., a tenant, by execution of a judgment of possession entered in the Superior Court in a summary action, may be evicted from: (1) owner-occupied residential rental premises with not more than two rental units, or; (2) a hotel, motel or other guest house or part thereof rented to a transient guest or seasonal tenant, or; (3) a dwelling unit that is permanently occupied by a developmentally disabled member of the immediately family of the unit owner or by a developmentally disabled member on whose behalf the dwelling unit is held in a trust that is established by that member s immediate family. b. The grounds for eviction under this section are: (1) any one of the grounds set forth in sections LT:5-1.2a.; LT:5-1.2b.(1), (2), (3) or (5); LT:5-1.2c.; LT:5-1.2d.; LT:5-1.2e.; LT:5-1.2f. (1), (2), (3) or (4); or LT:5-1.2g., except that a violation or breach required by sections LT:5-1.2b.(3) or (5) need not be substantial; or (2) holdover and continued possession of any part of the rental premises after expiration of the lease and after service by the landlord of a demand for possession of the premises in accordance with this Chapter; or (3) violation or breach of any covenant or agreement contained in the lease, where sufficient language reserves a right of re-entry to the landlord for the violation, and subsequent holdover and continued possession of any part of the rental premises after service by the landlord of a demand for possession of the premises in accordance with this Chapter. c. For purposes of this section: (1) member of the immediate family means a person s spouse, civil union partner, domestic partner, parent, child or sibling, or the spouse, civil union partner, domestic partner, parent, child or sibling of any of them as applicable; 5

6 (2) developmental disability means any disability which is defined as such pursuant to N.J.S. 30:6D-3; and (3) permanently occupies or occupied means that the occupant maintains no other domicile at which the occupant votes, pays rent or property taxes or at which rent or property taxes are paid on the occupant s behalf. Source: New. This proposed section adopts, with some modifications, the provisions of source section 2A:18-53 that pertain to certain residential premises not covered by current 2A: but adds some of the grounds in section 2A: As a result, some of the grounds from the Anti-Eviction Act now apply to eviction from residential rental premises currently exempted from the Anti-Eviction Act, as noted. In addition, the definitions of terms pertaining to the residential rental premises covered by source section 2A:18-53 (as discussed at the last paragraph of source section 2A: ) are also incorporated here. Notably, not all grounds for eviction that apply to residential rental premises generally are applicable to the kinds of residential premises covered by this section. Some of the grounds currently in 2A: are not carried over to this section because those grounds pertain to tenancies that are not perpetual in nature, or in other words, where a holdover is not possible. Since tenants in owner-occupied rental premises and in hotels or motels rented for transient or seasonal purposes as defined in the statute may not hold over, grounds in the Anti-Eviction Act which exist in order to provide a landlord with justification to terminate what would otherwise be a perpetual tenancy are not needed. LT: LT: Eviction; nonresidential and certain residential rental premises; grounds a. A tenant may be evicted from nonresidential rental premises as defined in this Title, and from certain residential rental premises as set forth in subsection b. below, by a judgment of possession entered in the Superior Court in a summary action if established that the tenant: (1) a. holds over and continues in possession of all or any part of the premises after expiration of the lease term, and after service by the landlord of written demand for possession of the premises in accordance with this Chapter sections LT:5-2.3b.and LT ; (2) b. continues in possession of the premises after failures to timely pay rent, pursuant to that is due in accordance with the lease or other agreement that governsing the tenancy.; (3) does any of the following: (a) is so disorderly as to destroy the peace and quiet of the landlord or the other tenants or occupants at the rental premises or in the neighborhood. (b) willfully or by reason of gross negligence destroys, damages or allows physical damage to the rental premises. (c) violates the landlord s rules and regulations governing the premises that have been accepted in writing by the tenant or made part of the lease. 6

7 (d) commits any breach or violation of any covenant or agreement contained in the lease where sufficient language reserves a right of re-entry to the landlord for the violation and continues in possession of any part of the rental premises after the landlord serves a notice to vacate and a demand for possession, in accordance with sections LT:5-2.3 and LT:5-2.2, that directs the tenant to vacate the premises within three days after service of the demand. (3) c. habitually pays rent after the date that it is due without legal justification; (4) d. willfully or with gross negligence destroys or damages, or causes or allows the destruction or damage to the rental premises or the leased real property of which the rental premises are a part; (5) e. violates the landlord s rules and regulations governing the premises that are accepted in writing by the tenant or made a part of the lease by the landlord either before or after the lease is signed or agreed to; (6) f. breaches or violates any covenant or agreement contained in the lease, where sufficient language reserves a right of re-entry to the landlord for the violation, and holds over and continues in possession of any part of the rental premises after service by the landlord of a notice to vacate and a demand for possession, in accordance with this Chapter, or (7) g. after service upon the tenant of a notice to cease, is so disorderly as to destroy the peace and quiet of the landlord or the other tenants or occupants at the rental premises or in the immediate vicinity of the rental premises; or (8) h. uses the rental premises in violation of state or federal law or municipal ordinance. b. The following residential rental premises are subject to this section: (1) owner-occupied premises with not more than two rental units or a hotel, motel or other guest house or part thereof rented to a seasonal tenant as defined in Chapter 1 of this Title; or (2) a dwelling unit that is held in trust on behalf of a member of the immediate family of the person establishing the trust, provided that the family member on whose behalf the trust is established permanently occupies the unit and has a developmental disability; or (3) a dwelling unit that is permanently occupied by a member of the immediate family of the unit owner, provided that the family member has a developmental disability. c. For purposes of this section: (1) member of the immediate family means a person s spouse, civil union partner, domestic partner, parent, child or sibling, or the spouse, civil union partner, domestic partner, parent, child or sibling of any of them as applicable; (2) developmental disability means any disability which is defined as such pursuant to N.J.S. 30:6D-3; and 7

8 (3) permanently occupies or occupied means that the occupant maintains no other domicile at which the occupant votes, pays rent or property taxes or at which rent or property taxes are paid on the occupant s behalf. Source: 2A:18-53; 2A: This proposed section adopts, with some modifications, the provisions of source section 2A:18-53 that pertaining to the eviction of tenants from all nonresidential and certain residential rental premises with some modifications in language. Language describing those residential rental premises that are covered by source section 2A:18-53 (as set forth at the very beginning of source section 2A: ) is also incorporated here. In addition, the definitions of terms pertaining to the residential rental premises covered by source section 2A:18-53 (as discussed at the last paragraph of source section 2A: ) are also incorporated into this new proposed section. Notably, the term eviction is used in this new section, (rather than removal), as it is used throughout this Chapter. However, the concept of a holdover tenant is retained here, as it is throughout this Chapter, since the concept is meaningful for legal precedent in this area. A new ground for eviction has been added. Subsection h. is derived from the criminal conviction grounds for eviction from residential rental premises (see section LT:5-1.2c.) but broadens the language and focuses the offense on the use of the premises, rather than on the user. It would be unfair and highly unworkable to provide a ground for eviction as provided in LT:5-1.2c. against legal entities. A corporate entity, such as a professional services tenant, for example, could be evicted solely on the basis of the criminal behavior of one its shareholders or employees even if such behavior had nothing to do with the rental premises. Subsection g. now provides for the landlord to serve a notice to cease prior to eviction. It was suggested by a commenter that a nonresidential tenant may not be aware that the tenant s conduct is so disorderly as to destroy the peace and quiet of the other tenants or those in the vicinity without such a notice. With such a notice, the tenant will have an opportunity to cure the alleged improper conduct before being evicted. In addition, Finally, the Appellate Division, in Kuzuri Kijiji Inc. v. Bryan, 371 N.J.Super. 263 (App. Div. 2004) clarified that a requirement of the precise words right of re-entry are no longer required in a lease to support a ground for eviction. The court stated: We conclude that words other than right of re-entry satisfy the letter and public policy of the statute as long as the words employed clearly convey that violation of covenants and agreements in the lease allow the landlord to seek a termination of the lease, the removal of the tenant from the leased premises, and a return of possession of the premises to the landlord..... Mindful of the nature of the right of re-entry, the language of the lease used by plaintiff satisfies the statutory requirement that the landlord reserve a right of re-entry. See pp LT: LT: Eviction from residential or nonresidential premises in certain cases A tenant or occupant or other person may be evicted from any residential or nonresidential rental premises, whether residential or nonresidential upon establishment that the tenant or occupant: a. if the tenant or occupant or other person: (1) a. violates N.J.S. 33:1-1 et seq., pertaining to the regulation of alcoholic beverages on the rental premises, provided that the landlord serves five days written notification of the violation which also states that the tenancy terminates and demands 8

9 possession of the premises and that the premises reverts to the landlord at the expiration of the five day period as a result of the violation; or (2) b. uses any rental premises for the purposes of prostitution in violation of the criminal statutes. b. if the tenant or occupant or a person given permission by the tenant to occupy the rental premises, c. engages in any conduct that a court finds, by clear and convincing evidence, is hazardous to the health or welfare of creating an imminent serious danger to others, to the property, or to the immediate vicinity of the rental premises. the tenant, other tenants or the neighborhood. Source: 33:1-54; 46:8-8; new. This section adopts the provisions of source sections 33:1-54 and 46:8-8, with modifications in language, and combines them together in a single this provision as subsections a. and b. The two categories of offenses violation of the alcoholic beverage laws, and use of rental premises for prostitution (and assignation, which is not included in this revised provision because it is no longer relevant to modern life) are currently grounds for eviction that heretofore have not been compiled together with the statutes pertaining to evictions. Subsection b. c. is new and also suggested by the same a commenter because of a concern that there is no ground currently for eviction of a tenant who engages in certain types of conduct that likely may result in serious injury or damage to persons or property. Examples of such conduct are a tenant who consistently uses an oven or gas range to supply heat when there is a legitimate source of heat for the premises, or improperly uses electrical outlets, or hoards garbage, paper or other junk valueless materials that are flammable or hazardous. LT: Eviction; mmobile home parks; eviction for signage precluded No mobile home park owner or operator may evict a mobile home resident for posting in or on a mobile home a for sale sign or similar notice of the private sale of the mobile home notwithstanding a lease provision or rule or regulation to the contrary. Nor may a mobile home park owner or operator prohibit or unreasonably restrict such posting by any means, including but not limited to, rules and regulations of the mobile home park, or a written lease or other agreement between the park owner or operator and mobile home resident. Source: 2A: a. This section adopts the provisions of source section 2A: a. with some modifications in language. LT: LT: Eviction precluded; exceptions by authorized State or local entity a. No landlord or owner may evict a tenant, occupant or other person from, or fail to renew any lease for, any residential rental premises covered by section LT:5-1.2 except for good cause as defined in that section. 9

10 b. A tenant, occupant or other person in residential rental premises covered by section LT:5-1.2 may not be evicted by a judgment for possession from the premises by the landlord s or owner s successor in interest, ownership or possession except: (1) for good cause in accordance with the requirements of section LT:5-1.2; or (2) in a proceeding where federal law that provides a ground for eviction supersedes applicable State law governing eviction; or (3) in a proceeding where eviction is sought by an Notwithstanding any other provision of this Chapter, an authorized State or local agency may evict a tenant or occupant from any residential rental premises in a proceeding pursuant to eminent domain or code or zoning enforcement laws and which complies with applicable relocation laws pursuant to the Relocation Assistance Law of 1967, N.J.S. 52:31-B-1 et seq., the Relocation Assistance Act, N.J.S. 20:4-1 et seq., or section LT:5-7.6 of this Chapter pertaining to displaced tenants. c. Nothing in this section shall limit the right of a landlord s or owner s successor in interest or ownership or possession, who is not bound by the lease entered into with the former tenant, from offering to and entering into a different lease with the former tenant. Source: 2A: This section adopts the provisions of source section 2A: pertaining to eviction by authorized public entities pursuant to eminent domain or code or zoning enforcement laws, with some modifications in language. The remaining current statutory language has been deleted. Subsection a. is obvious from other sections of the Chapter. Subsection b.(1) and (2) also appear unnecessary or otherwise covered in other sections of the proposed Title. It is unclear why subsection c. is necessary and it has also been deleted. 10