Scura, Wigfield, Heyer, Stevens & Cammarota Blog
The Pandemic and a slowing economy have left a lot of people with many questions and no answers pertaining to rental issues. If you are a landlord or tenant, the eviction process in New Jersey can be difficult to navigate. I will compose a series of blog posts that will assist you navigate through this process. The second blog below deals with eviction for habitual late payment of rent and refusal to pay a rental increase.
My landlord is suing me for “habitual late payment of rent” or “habitual failure to pay rent” . . .
To evict you on these grounds, the landlord must have given you a written “Notice to Cease” because NJ law gives tenants an opportunity to cure any default. This means that if, after you receive the Notice to Cease, you make all of your subsequent monthly lease payments on or before the day rent is due (as described in your lease), then the landlord cannot evict you for this cause. If, after receiving the Notice to Cease, you make one or more on-time payments (as described in your lease), and then have at least two late payments, the landlord must “start over” and give you a new Notice to Cease for those late payments before the landlord can proceed with the action against you. When the landlord files the eviction, the court will be scrutinizing your payments after you receive the Notice to Cease from the landlord.
In addition to and after giving you the Notice to Cease, the landlord must also serve a “Notice to Quit,” which is announcing the termination of your lease. The Notice to Quit must be given to you at least a month after the Notice to Cease, and the landlord must wait a full month from giving you the Notice to Quit before filing the eviction case. This means that if the Notice to Cease and the Notice to Quit for habitual late payment of rent are dated the same day, you can make the argument that the case should be dismissed because of the landlord’s failure to follow the law.
Otherwise, to fight an eviction based on habitual late payment of rent, the tenant should demonstrate with receipts that rental payments were made in full on or before the date described in the lease. Most NJ tenants do not have a state-mandated grace period to pay rent. You only have a grace period to pay if it is in the lease. If the lease says you have a certain number of days to pay, the landlord must honor that, and cannot consider the rent late if paid within that time period.
If you have lived in the same place a long time, and the landlord has always accepted your rent later than the due date in the lease, you may be able to make a “course of dealing” argument, which claims the landlord has waived their right to the due date in the lease, and therefore your payment(s) is not late. Another legally justifiable reason to have paid rent late could be because you were withholding rent due to necessary repairs the landlord did not make, but proceed with caution here – there are several steps a tenant must take to justifiably withhold rent. A qualified NJ attorney will be able to help you determine which of these may apply to your situation.
If you have made some of your rent payments late, your landlord has likely charged you a late fee. Late fees are only considered additional rent if they are defined that way in the lease. Most NJ residential leases do so. This means you need to pay the late fees in order to pay all rent “due and owing” to have an eviction case dismissed. If the landlord is charging more than 5% of your rent in late fees, you may be able to argue that the late fee is unreasonable. Additionally, while NJ does not have a statewide rent control law, many municipalities have rent control ordinances that may explicitly cap late fees, or cap the total amount of rent including those fees that a landlord can collect, as well as other aspects of the landlord/tenant relationship.
If you are a senior citizen and/or are receiving benefits or government pensions, your rights may be different than described above. Consult a qualified NJ attorney for more information about your specific case.
My landlord increased my rent and I did not pay the increased amount . . .
As previously mentioned, there is no NJ statewide rent control law, but NJ does require that rent increases be reasonable. The landlord must have served a properly timed “Notice to Quit” to the tenant, ending the previous lease terms, and also provide a notice of increase of the rent. How the landlord provides notice, and what amount of rent increase is permitted, might be governed by a municipal Rent Ordinance. For properties that are not governed by a Rent Ordinance, the landlord is required to prove that the rent increase is not unreasonable. To gauge this, the court will likely look at the rent of similar properties in the immediate area and the income and costs of the landlord, among other things, to determine the reasonableness of the increase. If you receive governmental housing assistance rental increases may be subject to the housing approval.
If you only continued to pay the original rent amount because you think the increase in rent is unreasonable, then if the court finds the increase in rent was not unreasonable, you may be evicted for not paying that additional rent. If you live somewhere with a Rent Control Board, you might be able to take the noticed increase to the Board for review instead of waiting for the landlord to initiate eviction proceedings to fight it out in court. In any case, make sure to save clear records of your payments, any notices from the landlord to you, and any notices from you to the landlord. All of those will be useful in court.
Again, if you are a senior citizen and/or are receiving benefits or government pensions, your rights may be different than described above. Consult a qualified NJ attorney for more information about your specific case.
I cannot pay what I owe; how long do I have before I am evicted?
In NJ, tenants have a right to the court process. This means that you can only be removed after the landlord has taken you to Superior Court and won their case before a judge. If you are illegally locked out by your landlord before a judge has ordered an eviction, or if the landlord shuts off your utilities or tries to force you to leave in any other way, call the police. Police officers cannot evict you, and must tell the landlord to let you back in. Only a Special Civil Part Officer of the Court can evict you.
If a judge grants the landlord “Judgment for Possession,” then the landlord has a right to the property and has the right to evict you. The judgment is entered the next business day from the trial. A “Warrant of Removal” can be issued as soon as three business days after the judgment is entered. A Special Civil Part Officer from the Court will then serve the Warrant on the tenant or (more likely) post it on the door of the rental property. Three days after the Warrant has been posted, the landlord can then request the Special Civil Part Officer come back to the property and remove the tenant, at which point the landlord will change the locks and the eviction is completed. Tenants cannot be evicted on a weekend or holiday, and the Special Civil Part Officer must be present; the landlord cannot evict a tenant themselves. In total, a residential tenant cannot be evicted any earlier than eight (8) calendar days after a judgment for possession has been entered. And, in nonpayment of rent cases, even after the eviction has been completed, a residential tenant may be able to move back into the rental property if the tenant pays all the money due as determined by the court (including proper costs), up to three business days after the eviction.
If you are facing eviction, you need a lawyer on your side who can help you solve your problem. That is where we come in. The attorneys at Scura, Wigfield, Heyer, Stevens & Cammarota LLP can help. Please call our offices to schedule a free consultation and hear your options.
This blog was written by Jamal Romero, Esq. and Diana Woody.
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