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How Covid-19 Has Reshaped New Jersey's Landlord-Tenant Practice

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How Covid-19 Has Reshaped New Jersey's Landlord-Tenant Practice

The New Jersey judiciary handles tens of thousands of landlord-tenant cases every year. These cases touch many facets of life and law. Despite the volume and complexity of these cases, the practice of landlord-tenant remained largely the same since the 1970s. The COVID-19 pandemic changed this. In August 2021, the New Jersey Supreme Court ordered sweeping changes to the administration and adjudication of landlord-tenant cases. This discussion addresses these dramatic changes, the policy reasons underlying them and best practices for practitioners new to the field.

Presenters

Thomas Major
Principal
Offit Kurman

Transcript

Jillian Kuehl - Hello, and welcome to Quimbee CLE. My name is Jillian Kuehl and I'm a Program Attorney here at Quimbee. And today, I have the pleasure of welcoming Attorney Tom Major to discuss How COVID-19 Has Reshaped the New Jersey Landlord-Tenant Practice. Thomas is currently a principal at Offit Kurman where his practice focuses on real estate law and landlord representation, counseling clients in both the multifamily and investment property industry. He has extensive experience in all phases of litigation, including at the appellate level. And Thomas is regularly an invited speaker and faculty on real estate and landlord-tenant subjects. And we are just so thrilled to have him here with us today. Welcome, Thomas.

Thomas Major - Hi, thank you. It's nice to see you.

Jillian Kuehl - So Thomas, just to get us started, why don't you go ahead and just give us an overview and an introduction to land practice in New Jersey?

Thomas Major - Well, landlord-tenant practice in New Jersey is a bit of an odd animal. It's kind of at the intersection of regular civil litigation, regulatory compliance. There's some municipal practice to it. And there's so many, there's literally thousands of cases that are filed every year. That it's hard to encounter someone who hasn't run into either a landlord-tenant problem themselves, or known someone who has had a landlord or tenant issue. I think in some of the Northern counties, there's an excess of 20,000 cases filed a year. And that's just the Northern counties of the state. What's interesting about it is there's so many cases that they're designed to be heard quickly in what they call summary proceedings, which are proceedings with no discovery. So you, literally, just show up and try the case. And what ends up happening is as soon as you get close to the practice area, you learn pretty quickly what it's like to be on your feet and deal with surprise. And it's, I enjoy it because it's a, it allows you to see so many variation of cases with so, and meet so many different people and so many different issues that you can really stretch your legal skills while also meeting interesting people along the way. And now after COVID, there's been some, some pretty serious changes to the practice that I'm excited to share.

Jillian Kuehl - Great, so I definitely wanna dive into everything post-COVID, but can you tell me a little bit before, like what would a typical landlord-tenant case look like before March of 2020?

Thomas Major - Well, before March of 2020, it was a mess. It was a chaotic mess that somehow worked, actually, fairly admirably given the number of cases. So, what would happen is you would file a case on paper, like you'd, literally, fill it out or on a PDF editor, print it and mail it in and then you hand deliver it. And you would have to physically print one copy, the original one for the court, and then another copy for each defendant. So you'd have these stacks of cases. And each one would be like copied 10 times. And it was this huge, like arts and crafts project to put together. And once you filed it, you waited for the court to serve it. And that would take, let's say a couple of weeks. And then you get a trial date. When you showed up on the trial date, there'd be sometimes hundreds of people or maybe 800 or so people jammed into a room waiting for the cases to be called. And they would, literally, the court staff would, literally, just get a big list printed on a dot matrix printer, like, literally, with the perforations on the sides. They'd get the dot matrix printed list, and they'd just start reading the cases. And people would say here, landlord here tenant here landlord attorney. And they would go through all the cases. And then the people that didn't show those cases were dismissed. The cases that were ready where both parties were there were good to go. And that's when the fun started.

So imagine there's all these ready cases. Let's say there's 50 of 'em. There's one judge waiting to hear all the cases, but they also have to be mediated so they can reduce the time spent on cases that could otherwise settle. But there's limited space in the courthouse, 'cause there's all these people with all these cases. So what would happen is the case would be marked ready. You'd worm your way through the sea of people, find your adversary, if they were represented or not, and then find some corner of the courthouse or courtroom to talk about the case. And then you'd try to work it out. If there wasn't another adversary, there was court-sponsored mediation where the court staff would be available to walk you through the mediation process. But those people try as they might were super loaded with cases because they were ready to go the same day too. And then the case was ready for trial and it was try it or go home. So if you showed up unprepared, unprepared for class, you were gonna be hurtin' for certain because there was no choice.

The court's position was, the case is scheduled for trial today, you filed it, you try the case, or if you were a defendant, let's say a tenant or a tenant's lawyer, the court's position was you got the summons you knew today was the court date. You are the lawyer, you know how to defend the case. So, put the case on. Now, occasionally you'd get adjournments, you know, if there was exceptional circumstances, or, you know, or something like that. But for the most part, it was, let's go put your exhibits on, get your case ready, put it on. Let's hear from the defendants, start the cross examination, hurry up. Okay, we're done. And then you'd get your decision that day. And because there were so many cases to, because there were so many cases to adjudicate. If you were unprepared, it was guaranteed to go bad in pretty much any jurisdiction. And that was part

Jillian Kuehl - So that sounds... of the problem too. that was part of the problem too, excuse me. There were so many counties, each one had its own way of handling things. So everything is different from county to county.

Thomas Major - Yes, so what would happen was the general way the case was supposed to go was uniform. So like the summons and complaint was always the same. What you had to prove at trial was always the same, like the substantive stuff, the case law, you know, the elements of the claims and the defenses that was always the same. The problem was each county had its own way of handling the administrative burden or the paperwork. So like some counties would go, would take the position. Don't file anything until you find out if your tenant's here or not, because file the complaint and don't file any additional paperwork because we have 60,000 cases and we're not in the business of just maintaining volumes of data for cases that don't need adjudication. Others would take the position that you had to be totally ready with everything the same day.

And then others, the other thing that would happen is each county had different rooms where certain things had to be filed. So like in one county, in particular, the cases would be called on the third or fourth floor in the courthouse. But if your tenant didn't show and you could get a judgment by default, that paperwork had to be filed downstairs on the first floor, in a building that was in next to the courthouse. And so you'd walk all the way through the courthouse over through to the other building and file paperwork there. Or you could try to do what I do, which was like, I would just take everything back to the office and then mail it in. Except I realized very quickly that was a complete waste of time 'cause that just made everything take longer. And so what you ended up having was these like variable procedures, administrative procedures by county with this otherwise uniform practice. And if you didn't know the lay of the land in either one, it was a mess.

Jillian Kuehl - Okay, so it sounds like clearly, even though it seems a little messy, the idea is for this to be resolved quickly. So why is the idea for everything to be adjudicated so quickly?

Thomas Major - The reason is because there's so many cases, so there's two reasons. There's the administrative burden that there just simply isn't enough manpower or person power to, you know, crank out this volume of cases over time with discovery and everything else. The other problem is these cases involve people's right to real property. And generally speaking, like in the Western legal tradition, there is like an importance placed on like private property rights. So, you don't really need, you don't have to go back to the Magna Carta, you know, to imagine that if you have someone who's like living in your house and refuses to leave, somebody should do something quickly to get rid of them, especially, if they're not paying. So you end up with this like, this preference to adjudicate these cases quickly because we have to there's so many of them. But also the interest involved are at stake are high. The interest at stake are high on both sides. You know, if you're a tenant you would like to deter be, find out fairly quickly, whether you're gonna be able to live in this place or not, you know, once the court hears your defenses for, you know, whatever the claim is. And so there was these two types of pressure on the system to get these cases in, get 'em heard, get 'em adjudicated fairly and move on.

Jillian Kuehl  - Okay, so that's pre-pandemic. Okay, so tell me now, let's dive in, what happens after the pandemic hits, after March, 2020?

Thomas Major - So the pandemic hits and then the crap hits the fan because all of the efficiencies in the in-person practice you end up being exposed. You know, the first thing that happens is there are two ways in which the pandemic effected the practice.

And they come from two different actors. So under the New Jersey Constitution, the Supreme Court has exclusive jurisdiction over the practice of law and the management of the court system. So that's one actor that is regulating the practice. And then there is, obviously, the legislature and the governor, who their actions can affect the substantive rights of the parties that's administered by the court system. So those two competing poles of power, I guess you might say, or control, both responded in different ways to the pandemic.

The first thing that happened was the judiciary stopped in-person proceedings. For the obvious reason that stopping in-person proceedings was believed to reduce the spread of COVID-19 and the like. And then, once in person proceedings were stopped, then they created an emergency filing procedure to schedule trials that had to be heard for some compelling reason, which we'll get to in a second.

But the other thing that happened was the executive, the Governor Murphy and the legislature, ultimately, made changes to the substantive rights of the litigants in the landlord-tenant space. So for example, the governor issue an executive border that allowed tenants to apply their security deposit to rent whenever there was an amount outstanding, then there was an eviction moratorium that prohibited the eviction, the removal of people, generally. Both because there were no proceedings being held. And second, because it was believed that a pandemic was gonna cause this like rash of homelessness. And so, there was a need to stop those cases from happening anyway, while government assistance programs were put into place. So what ends up happening is. the Supreme Court using its control of the administration of the system, stops the proceedings and creates subsequent methods for getting cases adjudicated while the executive branch and the legislature changed the substantive rights between landlords and tenants in the background.

Jillian Kuehl - Okay, and so during this time, was there any thought given to improving or changing this process, generally?

Thomas Major - Actually, yes. And it's kind of unfortunate how it came up, you know, it's almost like it, it took a pandemic to figure out how to improve the practice of landlord-tenant procedure generally. But what happened was the judiciary put together a special committee on landlord-tenant practice. And the idea at the time was to assemble the stakeholders in the landlord-tenant practice, generally, representatives of landlords, tenants, and court staff, and come up with a more efficient uniform way of addressing these cases to remove all of the prior, we'll say flaws in the way the cases were handled. You know, for all of its virtues, the prior practice was at some points, wildly inefficient. And in some other cases kind of unfair. It's still a miracle that it worked the way it did, but there was definite room for improvement.

And so the Supreme Court put together a judiciary special committee on landlord-tenant practice. And the committee was comprised of these stakeholders, I just mentioned. The idea was that the committee would identify substantive changes that could be made to the administration of the landlord-tenant practice to remove all of the flaws in the system as best it could, excuse me, that existed in the prior practice. So, earlier when I mentioned that there were two elements, exercise and control over the practice, I mentioned the Supreme Court, it's administration of the court system, and then the executive and legislature with the substantive rights. But what we're mostly talking about today is the changes in the administration of the landlord-tenant practice that come from the Supreme Court. So, the substantive rights of the parties haven't changed beyond there's some eviction moratorium laws, and this kind of thing that we could talk about later. But what we're mostly identifying is the changes the Supreme Court made in the administration of these cases to remove a lot of the inefficiencies that existed before.

Jillian Kuehl  - Okay, makes sense. And so it sounds like this report you mentioned sort of identifies a lot of substance and potential changes. I don't, obviously, think we'll have time to go through the whole thing. So can you walk us through, I guess, what were some of the big ticket changes here?

Thomas Major - Sure, the thing we have to, I think the best way to understand this is to identify the major problems with prior practice and then compare the solutions to the prior practice. So we could see it becomes more obvious, we'll say, how the new procedures are an improvement. So, in prior practice, it was show up on game day and be ready, which is fine, if you're prepared and these cases are not procedurally deficient. One thing that would happen is in New Jersey landlord-tenant practice notices that are served on tenants are what's called jurisdictional preconditions. And that's a fancy way of saying that the court can't hear the case unless the notices that give rise to the cause of action are procedurally buttoned up. So they have to be right. The timelines have to be right. The tendency termination dates have to be right. The cause of action reference has to be right. And if it's not, these things are a bar to this failure is a bar to the court, even hearing the case in the first place. Now what would happened in the bad all days was if you were representing a landlord or a tenant, let's say a landlord, for example, and you made a mistake in a notice you'd show up to court bright eye and bushy tailed and ready to rock. And the defendant's attorney would go, your notice is wrong. The tenant's termination date is bad.

Now, you filed that case six weeks ago, you told the client to be ready to try it on this day. Clients showed up and they're ready to go. Everyone's been there since 8:30 in the morning or 09:00, and it took you probably 90 minutes sitting in traffic to get there. And now you found out for the first time, your case is procedurally deficient and you deny it. And you say no way, it's fine. It's one day, it's a mistake. It's, obviously, a harmless error. Let's just try the case. Get in front of the judge. The judge says, let me see the notice. defense attorney says, deficient, tendency termination date is wrong. The timelines are wrong. Judge goes, sorry, case dismissed. And now you wait another six weeks. You gotta do it all over again. So in those cases the court reached the right result because there were procedurally, there were deficiencies in the filing of the case that barred an adjudication. The problem is why did we all have to wait six weeks to find that out? And why did you find out about it on the trial day? Now you might say, well, if you a lawyer who screwed up, you deserve, you know, the humiliation that comes with that, but let's try to be friendlier than that.

So the first thing, one of the first items the committee tried to identify is the promotion of the resolution of these cases on the merits, by screening out procedurally-deficient cases. Because nobody should waste their time handling the resolution of a procedurally-deficient case. And a corollary to this is the removal of uncertainty and surprise. You know, generally speaking the system doesn't look kindly on trial by surprise. And although it's a summary proceeding, that doesn't mean that it should be a complete, you know, circus what happens at the trial. So, the idea was screen these procedurally-deficient cases, remove the element of uncertainty and surprise and in so doing, create additional opportunities to promote early settlement. And if all of these things worked, according to plan, we would be optimizing the time dedicated to judge-involved cases so that when judges were involved in these cases, it was to adjudicate them on the merits or in some cases approved settlements. And their time was exclusively was I shouldn't say exclusively, their time was optimized so that it was deployed best on these types of cases that were ready for adjudication. And then with those things in the background, we'd create a uniform, the committee recommended a uniform or standard procedure for the handling of these things so that everyone knew what to expect and when.

Jillian Kuehl - So if those are the goals or I guess the, you know, the reasons for the changes, what actually furthers those goals and creates these changes.

Thomas Major - Because we're in the business of law and the business of paper pushing, the answer is more paper, more forms, but fortunately useful forms in ways that in ways that like haters might not recognize. So, in New Jersey civil practice, generally, let's say cases that are above $15,000 in amount in controversy or in $40,000 amount in controversy, in some specific cases involving unpaid rent, but let's just say generally 15,000. Those cases begin with a complaint and a case information statement. And the case information statement identifies the basic information about the parties and the type of case. So, when you file the case, you have to choose what type of cases this is. And you literally choose from a list. You know, it's a commercial contract case. It's a real property case. It's an automobile negligence case. It's a toxic or mass towards case this kind of thing. And then when you select those things, certain things happen in the life cycle of the case. It determines how much discovery you're entitled to and so on. Well, one of the things the committee decided, which is the change I'm in love with is, why don't we just take the same requirement that's imposed on other civil litigators and apply it to the landlord-tenant case.

So landlords and tenants should both have to complete case information statements. And in these case information statements at the filing of the complaint, they should identify common causes of action, the procedural requirements for the cause of action and identify common defenses. And the idea is that by completing these, by completing these case information statements, the litigants have a roadmap to ensuring that they're not procedurally deficient. So it literally, the landlord case information statement asks you to choose a cause of action and then tells you like, are your notices attached? You do realize you need this, this, this, and it's, although it can be, it increases the burden or the time required to start these cases. It's a useful tool for ensuring that you're not accidentally stumbling into a procedural deficiency. And then, and this is probably my favorite change. Then they required that someone certified to the existence of the lease or absence of a lease its contents and the registration of the property. The prior practice was a freaking mess on this subject because in New Jersey, every property has to be registered and registered means a specific thing that we could talk about later.

Every rental property has to be registered at some level. So if it's three units or more, the property is registered with the State Department of Community Affairs in Trenton. And they give you what used to be called a green card. But now it's just a PDF. And that ensures compliance with hotel and multiple dwelling law, which is like, you know, this big. And it's got all of these regulations that uniform standards for maintenance, safety, and service for tenants, and this kind of thing. But on top of that, if the property was smaller than three units, a landlord had to register with the municipality, essentially, identifying the places of rental property. Now, this was the most annoying element of landlord-tenant practice. What would happen is, you would try a case to conclusion, and let's say, you forgot to ask about the registration. The client told you they registered, and you said, just bring it with you on the court date, you know, or I can get it. I'm gonna bring it with me or something like that. You would try the case. And the judge goes, okay, judgment for possession in favor of landlord. Let me see the registration. And then you go, oh, I don't have it. I can get it, so I'll file it, I'll send it in.

And now you've got a case that's, essentially, brought to the one yard line with this one element hanging out there. and it can't be concluded without it. 'Cause you can't enforce the judgment without the registration. And then everyone of the courtrooms simultaneously rolls their eyes. 'Cause now we just did this whole thing and accomplished nothing, 'cause it's not over today. Now it worked, if you were an advocate for a tenant because, you know, savvy advocates, the first thing they would say is, well, let me see the registration. I don't have it. Okay, well let's go see the judge. Because it was a sure way to prevail on that day, but it left this hanging element out there that had to be addressed subsequently. So now you have these cases that consumed a lot of time and this nuisance point that has to be resolved.

Jillian Kuehl - And is that statewide then, that's a statewide requirement for registration?

Thomas Major - Yes, yeah. Statewide, well, to be more precise, it's statewide for buildings of certain sizes. Size being the number of units in the building, not like the, you know, square footage, like a mansion is a one unit house. Is a one unit building, you know, or like a small two family house. Is two families irrespective of the...

Jillian Kuehl - Okay, so a statewide registration requirement seems like a lot. So I guess what's the point of this registration requirement?

Thomas Major - Statewide the point is to ensure minimum the adherence to minimum standards of maintenance, safety, and service for tenants. The state has a pretty comprehensive and pretty strict law called the hotel and multiple dwelling law. And its regulations are like enormous. And it's down to the granular level. Like for example, where mailboxes are supposed to be placed or the right to a mailbox in the first place, more specifically. Forget about where it should be placed. It's the right to a mailbox. It also has certain rules about the size of usable square footage versus the size of sleeping area based on the number of occupants. So it's really down into the granular level. And the purpose of the law is to ensure that people who occupy rental properties are given a basic level of maintenance, safety, and service. The State Department of Community Affairs, actually, inspects these things.

So they do what they call a cyclical inspection. Where every five years they come out, someone from the state comes out and looks at the property to ensure that it's adhering to these basic maintenance, service and safety standards. And then at the municipal level, these are for smaller units, you know, one families and two families. At the municipal level, the registration is designed to alert the municipality to who is responsible for the maintenance of it. Most municipalities follow the international property maintenance code, which is kind of like the hotel, multiple dwelling law. And it's got everything covered from how to keep the lawn, you know, to how to get rid of rodents and this kind of thing. And the account that the municipalities have an interest in, in figuring out who is actually responsible for this. You know, so 123 Main Street LLC is ultimately, owned by a person and that person is responsible for the adherence to these standards. And that's why the registration requires you to identify like who's responsible for emergency repairs. if the building is heated by oil heat, you know, those kinds of things. And so by registering the property, the landlords identifying who's responsible for it and its maintenance and both the state and the municipality have an interest in knowing that. But the bottom line is it pretty much exists to ensure that basic standards of housing are made the tenants are made whole or given basic standards of housing and safety.

Jillian Kuehl - And so for lawyers, you know, do you have any practice pointers that they should keep in mind with completing these forms?

Thomas Major - Yes. There's two things, the landlord and tenant case information statement, those are things that should be looked at carefully because they're a roadmap at the beginning to preparing a good case, even if it's just to remind you of claims or defenses that you may not remember off the top of your head. But the one thing I wanna stress and this I feel very strongly about, although there is room for disagreement. Is the certification of lease and registration. The form is created by the judiciary and you could find it online on njcourts.gov. And it allows for on its text, you know, by its terms, it allows either the landlord or the tenant to complete it. Excuse me, the landlord or the landlord's attorney to complete it, not the tenant.

The landlord's or the landlord's attorney. I do not believe in any circumstance, the lawyer should be the one certifying to the existence of, or the contents of the lease and the contents or the fact of registration. And I believe this for a reason that I think is fairly bulletproof defensible though. I, of course, I'm interested in hearing an opposing viewpoint. There is a rule in civil practice, generally, and it's rule one colon six dash six, and an element of it requires that when someone certifies to something that, that person has personal knowledge of the contents of the certification. So for example, if I'm told, if you tell me or somebody tells me, the light was green, when so and so drove through the intersection, I don't have personal knowledge of anything other than you told me that, I didn't see it. I didn't see the color of the light. I didn't see the person drive through the intersection. I don't even really know that the person drove through the intersection. Strict from an evidentiary standpoint, all I know is that you told me that this person drove through the intersection when the light was green. And that's, unless it's some really idiosyncratic example that is of absolutely no evidentiary value.

 So think of that, take that example and apply it to this certification of lease and registration. If you are the lawyer and the client comes to you and says, "This is my lease, and this is my registration." What do you really know other than this guy, or this person is telling you, this is the lease and this is the registration. You don't. So I don't think it's best practice to certify to something that you don't have personal knowledge of. Now, somebody might say, well, I handled the leasing of this building and I wrote the lease and I sent it to the tenant. Then the tenant sent it back to me. And I also do all of the compliance for this particular landlord. So, I physically go to the DCA's website and register this property and I get the registrations every year. And I see to the five year inspections. In those limited circumstances, I guess it would be okay for the lawyer to complete the certification of lease and registration. But generally speaking, it's not a good practice for a lawyer to certify to the contents of anything in the case, because frankly, the lawyer has personal knowledge of nothing beyond what the client tells him. Unless there's discovery related issues or some procedural thing, you know, in motion practice later in other cases, not these.

So, I don't believe practitioners should be completing certifications of lease and registration. I think the client should do it. And if you're interacting with someone, especially, for the first time or representing them in a landlord-tenant case, I think you should just insist that they complete it. Make sure it's accurate, obviously, but insist that the client be the one who sign it. Another thing is the another thing to keep in mind is, one of the benefits of these changes to the practice from the special committee is uniformity. All judgments now are reduced to writing and it used to be, literally, that the judgment was written on a manila folder. Like it was like this big and all the stuff would be stuffed in there. The complaint, letters, requests for warrants of removal. And when a case was adjudicated, a judge would just note on the jacket, that go JOP and then the amount or the cause of action. And then when you asked for your judgment, people would go, well, here it is. It's written on the folder. And then eventually, you could chase down a written one if you prepared it and so on. But now all of them are reduced to writing. So you can see what you need to prove for these cases, just by looking at the judgements. The judgment says for a nonpayment case, X is now legally due and owing the tenant failed to appear these kinds of things. So you can use these forms to reverse engineer what you need to prove and what you need to effectively prove a case. And you can use all the forms together to see like your way points along the way to handling the case competently.

Jillian Kuehl - So given these changes, you know, and what the committee's done and what these forms have there been any changes in when it comes to court appearance, procedure or trial after the pandemic or during the pandemic, I guess we're still not after.

Thomas Major - So we have a uniform, so we're recording this in February of 2022. So we're done with the eviction moratorium and we're done with all of the temporary, like COVID measures for landlord-tenant practice. Like those specialized procedures that's existed during the moratorium we're done with all that. So now we're in what you might call the new normal. And now the average landlord-tenant case is increased in length, purely based on the number of appearances. So you remember earlier, we were talking about you show up on the court date after sitting in traffic and being miserable, and then you'd have to check in, wait for the case to be called mediate it either with your adversary directly or with the court staff, try it and then be ready to rock and roll, all on the same day. Well now, there's a longer lifestyle cycle of a case because those instances of what would happen in one day happen in separate appearances.

So, now there's settlement conferences. Every case begins with the settlement conference, that's administered by a landlord-tenant specialist, a court employee. And then there's a case management conference. That's a unique proceeding. Sometimes they can be the same day, but most often they're not. And in those case management conferences, a court employee identifies evidentiary issues or unique circumstances to the case that the judge should be ready to address. And this is all part of that goal we talked about earlier, which is to optimize the judge time so that when you see someone at the robe, they're there to adjudicate, not to, you know, talk generally about why you didn't get this right the first time around. And then you've got your trial, which was always the case. Sometimes it happens the same day as a case management conference or as a settlement conference, but more often than not they're unique appearances.

Jillian Kuehl - Okay, and so in this new normal, or I guess just in general, and do you have any suggestions for perhaps newer practitioners of landlord-tenant law in New Jersey?

Thomas Major - The one drawback to the new procedure is that you can't hide in plain sight anymore. You gotta be prepared and ready to rock when the case is ready. So, it used to be in the bad all days that if you were unprepared because you forgot something or, excuse me, or something was missing, or the client was late, that just by this sheer amount of inertia, that was an impediment to getting these cases heard, you could kind of get away with it for just long enough to throw it together at the last minute. Now you can't do that. So, these proceedings almost always start on time. So we're done with the prior practice of the case being listed for 08:30 and then you roll up, you know, at 09:15 and say hi to people and then wait for another 20 minutes. Now because their virtual you're expected to be there on time, ready to go. So punctuality is key. The other thing is the average amount of time dedicated to these cases from a judge standpoint is still the same. There's still summary proceedings that are designed to go, you know, they're designed to be adjudicated, but now you have to present them virtually at least for the foreseeable future. So, the exhibits should be pre-marked in PDF form and ready to be shared on a screen.

All of your like virtual trial bonafides should be in place, you know, audio, visual, microphone, camera, and the client has to be present. And for the love of God, not on a cell phone, where like, all you see is the forehead and like the unibrow, the bridge of the glasses. Like they have to train the clients to be ready, either on an iPad or a tablet or a regular camera attached to a laptop or something else. Because there's nothing worse than getting ready to try a case and all you see is an eyebrow and someone yelling, I can't hear you. It's effectively a non-appearance because it's a useless participation or it's useless participation. So, the burden to be prepared is greater now than it had been in the past.

Jillian Kuehl - And do you know, obviously, that is a bit of a burden, but I guess overall, do you think that these virtual proceedings are actually an improvement from the bad old days?

Thomas Major - So, I actually had a bad attitude about these because I thought that it would increase the number of appearances and would just be like shuffling chairs, you know, and it would just be a more often a waste of time than something productive. It turns out I was totally wrong. What I didn't realize at the time that I've realized now is the prior environment for settlement was way too frantic, because everyone would be crammed into these rooms, you know, in a frenzied situation, trying to talk about something that of critical importance to them. Now in these virtual proceedings, the temperature seems to be lower. It's a little difficult, you know, to address the technology gap between litigants, but the temperature of the proceeding is generally way lower. And I've in my experience, I've found that the removal of these massive calendar calls of waiting around all day has helped take some of the pressure off the experience. And so people seem to be more willing to soberly talk about the problem, how we got here and what might be done to resolve it.

Jillian Kuehl - And so, you know, three appearances sort of seems like a lot for a simple landlord-tenant case. 'Cause it sounds like you have to appear maybe multiple times. So how long is each appearance lasting? You know, now that we've moved into a virtual proceeding situation?

Thomas Major - So each appearance is about let's say 15 to 20 minutes. The proceedings usually begin when they're scheduled, which is a good thing. And then there's generally, there's some friction, you know, before your case is heard because they try to allow time for people having technical difficulties or other problems to get into the Zoom or Teams meeting. So let's say a 20 minute wait or a 25 minute wait for everyone else to virtually saunter in. And then the case is called. The average settlement conference is 20 minutes. The average case management conference is 10 or 15, and then you've got your trial and the trial was always between 30 and 45 minutes, unless someone was like unprepared and was like vamping while they came up with something to say.

Jillian Kuehl - So when you have a case that's finally ready for trial, what is it that a landlord needs to prove?

Thomas Major - If you represent the landlord, let's stick with nonpayment of rent because it's the easiest one. And it's the most common one. And the other ones we can always do later. In a nonpayment of rent case, if you represent the landlord, you have to prove that the rent is legally due, owing and outstanding. And like have those three phrases committed to memory, legally due, owing, outstanding.

So what does it mean for the rent to be legally due? A couple of things, the apartment has to be in compliance or the unit, excuse me, has to be in compliance with whatever municipal rent control law applies. Keep in mind, New Jersey does not have a statewide rent control law. Rent control is an exclusively municipal concern. There's a statewide law that exempts certain buildings from rent control. But that aside, buildings that are to be rent controlled that are subject to rent control are exclusively municipal concerns. It's part of a governance or constitutional governance doctrine that's called home rule. So, there's 400 some odd municipalities in New Jersey.

Conceivably, each one could have a different rent control ordinance. They don't, some of them don't have it at all, but it's a strictly municipal concern. So you need to first determine that there's rent control compliance, and then you have to make sure that the apartment's not illegal. And an illegal apartment is one that violates a zoning ordinance or a building code or some other municipal ordinance that makes the person's occupancy of the unit illegal for some reason. An illegal basement apartment in a two family house is a zoning violation. That's three families in a two family zone and turning a garage into an apartment is an illegal change of use. It's a garage, cars live there, not people. So, you have to make sure the rent is legally due and owing.

Now, is the rent actually due? Is that rent actually owing? It may not be because of habitability concerns? So if the place is a dump or there's something that affects the tenant's right to peacefully, enjoy the vital facilities and so on, there may be a proportional abatement of the rent owed to the tenant. So you need to be prepared to address that, in advance. 'Cause the last thing you wanna do is be surprised. I would confirm with the client that there's no property maintenance code violations or housing code violations and that the tenant hasn't complained about anything in the property. These are the kinds of things that form the basis of a habitability defense, especially, a citation from the municipality, you know. And then outstanding. You have to be bulletproof on the amount that's due.

So, tenants during the pandemic were allowed to apply the security deposit to rent if they made the request. So if the request was made, even if you don't like it, the landlord has to apply that to the outstanding balance. And then there may be room for government assistance. If the tenant receives some sort of government assistance at the state or federal level, or I guess federal assistance administered by the state is the more precise way to say it. There are special requirements for those types of tenants. They're entitled to additional protections beyond the tenant that doesn't receive that assistance. And all of this can kind of be like coalesced into like three or four trial exhibits. P1 is almost always your lease, assuming one exists. There are cases where there's an oral month to month agreement. Although that should be the exception of the norm, especially now. So P1 is always your lease, P2 is the ledger. It will happen that some landlords say, well, I don't have a ledger. And it's like, yes you do. Why don't you write what was due when it was due? And then what you got when you got it and then see like, you know, do the addition, subtraction, and then of come up with that. And I've had clients go, "I really have to do that?" And it's like, "Yes, how do you know what's owed, if you haven't kept track of it?" So it's okay to say, you need to prepare a ledger that shows what's owed. So that's P2. P1 is the least, P2 is your ledger. P3 is your registration. This nightmare. Now your registration is either statewide, three units or more, or municipality specific, one or two families. And then P4 is your rent control registration. You have to prove that the rent is legal, if rent control applies to your municipality. And so those four exhibits, in that order usually, should comprise the bulk of a landlord trial presentation.

Jillian Kuehl - Okay, so let's flip it. What if you're a tenant? What do you need to prove?

Thomas Major - If you're a tenant, the proving the defense is more fun. Because you get to use pictures and images and these kinds of things. So, the most common tenant defense is the habitability of an apartment. And I'm referring to a tenant defense for a nonpayment of rent case. The most common defense is the habitability of the apartment. And what's the easiest way to prove an apartment is uninhabitable? Well, showing the judge the crappy condition it's in. And so, the first thing you should have is pictures of the unit that depict the conditions you're complaining about. Now remember, most habitability defenses or the good ones center on vital facilities. You know, the courts aren't really inclined to start proportionally reducing rent for cosmetic deficiencies.

You know, I'm not saying it might, it doesn't happen, but old paint, assuming it's not lead. Old paint, doesn't usually qualify as a habitability concern. The most habitability concern center on vital facilities, holes in the wall, holes in the floor, water infiltration, lack of hot water, lack of heat. You know, these kinds of things. Those are big ticket items for tenants and you just have to prove it, as best you can. So if there's holes in the walls, pictures of holes in the wall will do. The one thing to keep in mind though. Actually two things. There's two things to keep in mind. The first is remember the personal knowledge requirement we talked about at, you know, a few minutes ago, just like the landlord's lawyer knows nothing about the lease and the registration, the tenant should be prepared to have the person who took the pictures testify at trial. It's not always a requirement for a very, very idiosyncratic evidentiary rule, but generally speaking, and let's keep it easy, the person who took the pictures should be the person who testifies. And they should be prepared to say when they took the pictures and what happened after. Ideally, this is the same person who provided notice to the landlord of the defect, because the landlord's entitled to notice of the defect in the apartment before the right to an abatement accrues. Now, so they're supposed to be told that this is a problem and you have to fix it.

Then if they don't within a seasonable, you know, reasonable amount of time, then your right to an abatement or to apply and deduct, or these kinds of things accrues.

 One wild card thing though, the e-courts is generally where these exhibits are uploaded, when it comes time for trial. And e-courts has specific PDF-size restrictions. And there's nothing worse, nothing worse than getting ready for the trial, and you're all bright on a bushy tail and ready to go. And then you're try to upload the exhibits and they're too big. And now you're shrinking, optimizing, breaking into multiple pages. It's a mess. So I believe the individual exhibit limit is five megabytes for an aggregate of 25 per e-courts filing. But before doing anything, when you've got this evidence before the trial, please, please, please, please, please, check the size limits. 'Cause the last thing you wanna do is tell the judge, I have this great evidence just a minute while I reduce the file size so that it's e-courts compliant. And then, you know, you've got your other basic defenses that are pretty quick and easy to prove. The illegality of the apartment. If the place has been cited by municipality, let's say no CO or it's an illegal apartment because it's an illegal change of use. Basements, attics, garages, those kinds of things. That is evidence of itself, of an illegality. And then your zoning violations, when a property, those usually you can guess and be pretty close to accurate.

Whether a property is an illegal apartment based on a zoning violation. You still need the violation from the city to prove it, but it good starting point. If the tenant tells you my apartment's in the attic, my apartment's in the basement, my apartment is a bonus room behind the garage. You know, if it stinks, it's probably bad. And then all you have to do is ask the municipality to inspect it and you'll get the evidence you need. Assuming it's an illegal change of use or a density violation. And then you've gotta make sure that the landlord is actively participating or facilitating government assistance. There is a new law, that's the product of the eviction moratorium compromise, from the fall of 2021.

That explains that it's illegal, it's a violation of this law for a landlord to intentionally frustrate a tenant's ability to get assistance. What you used to have was, if a landlord really wanted to get rid of a tenant, the tenant would say, I qualify for six months from this agency, fill out this W9 and they'll pay you. And then the landlord says, I'm never got it. Or they never file it. Or they say, oh yeah, I'll fill it out. And then right into the garbage it goes. Well now, if a landlord, intentionally, frustrates your ability to get government assistance, that's another defense you can raise. Arguably, it always was for equitable reasons, but now it's codified in a clearer way.

Jillian Kuehl - Is there any particular reason why a landlord might do that in the first place? Or can you give us maybe an example?

Thomas Major - Yeah, because people suck and like sometimes you'll get - Sometimes you'll get a landlord who doesn't want a person living in the building because they have some interpersonal conflict or because it's rent controlled. And the municipality has like some decontrol or modified form of decontrol. And so a landlord might say, you know, your rent is $500 and you got this agency that's gonna pay six months. I'd rather get rid of you and light the $3,000 on fire because then I'm gonna decontrol the unit than take the money and be stuck with you for life. 'Cause one of the major things about Anti-eviction Act properties, it's funny we made it this far and I never even mentioned the statute. If your property, if your tenancy is subject to the Anti-eviction Act, which applies to non-owner occupied properties with two or fewer rental units. So everything like three and above, and if the owner doesn't live there, essentially, if you have an Anti-eviction Act tenancy, there's a case, essentially, says, the point of this law is to create a life estate. So you are there until you're not. And the expiration of a lease is not good cause to evict someone. It's not like New York where like your lease expires and you gotta go. If your lease expires, the law provides it automatically renews on a month to month basis. So since those are the stakes, you do run into to unscrupulous people who engineer ways to, or pretextual ways to remove tenants.

Jillian Kuehl - All right, well, this has been incredibly informative and fun. Thank you. Do you have any final closing thoughts for us before we wrap up here?

Thomas Major - Only a couple. The first is be prepared, be prepared, be prepared, be prepared. There's still summary proceedings, but they gotta move and a crisp case whether it's prosecuted or defended, a crisp case where you're prepared, ready to go. Your cross examination, direct examination is a good one, it's tempting to say it's just the landlord-tenant case. It's only one out of however many, but these are still serious proceedings. And the evidence rules still apply and there's still real lawyering to be done, not withstanding what other practitioners might say about the field. And the second is, always remember or do the best you can to remember the stakes are high. In the residential landlord-tenant setting, you're often dealing with people who are at their wits end for life circumstances in or outside of their control.

And you know, we're in the business of law and the practice of law, but it's a business that involves dealing with people, you know, human beings with real problems. And I try to encourage people to remember, you know, a person is not what their legal problems are or what your legal problems are don't define you. So, every time you encounter someone who hasn't paid rent or is accused of damaging the property or paying later, something like this, This is just a legal problem this person has for reasons you may never know, and probably aren't entitled to know. And so I try to encourage people to remember that we're dealing with human beings in the practice of law, and we should remember that and do the best we can to treat people the way we would wanna be treated.

Jillian Kuehl - Well, that is an exceptional note to close on. Thank you. We have really enjoyed having you here today. Quimbee thanks you, and we thank our audience. Tom, if you want to just let our audience know how they're able to reach you if they have any questions.

Thomas Major - So my full name is Tom Major. I'm the only landlord-tenant lawyer in New Jersey with that name as best I can tell. So I'm eminently Googleable, you know, Twitter, LinkedIn, the usual, and all my contact information is on the firms webpage. So if you need me, just Google me and you'll find me. And I'm always around to talk. I'm not stingy about collaborating with people. In fact, I could use some variation in my day to day.

Jillian Kuehl - Well thank you so much. It's been such a pleasure. Take care and stay warm.

Thomas Major - Thank you very much.

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