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Introduction to New Jersey Landlord-Tenant Law in the Post-COVID Era

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Introduction to New Jersey Landlord-Tenant Law in the Post-COVID Era

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 landlordtenant 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

Kenneth Biedzynski
Partner
Law Offices of Goldzweig, Green, Eiger & Biedzynski, L.L.C

Transcript

Ken Biedzynski - Hello guys. My name is Ken Biedzynski. I'm an attorney licensed to practice law in the state of New Jersey, and I'm very happy to be with you guys today on behalf of Quimbee to start a course or at least to teach you a course called introduction to New Jersey landlord tenant law in the post COVID area.

First, I wanna thank the fine folks at Quimbee for having me back again. They're a great organization. Congratulations to you for choosing them as your CLE provider. I particularly wanna thank Jillian for all her help, and really making this happen, so she's terrific, Quimbee's a terrific organization, and you're gonna be very happy. So we have a lot of information to cover today. I'm excited to be with you, and I really mean that. I'm excited to be with you, and I'll tell you why, or at least hopefully you'll pick that up as we go.

Let me just give you a few seconds of my background, just so we're kind of clear on what we're doing here and where my information's coming from. I've been an attorney in the state of New Jersey for 25 years. Ever since day one, I've practiced in residential and commercial landlord tenant law, from evictions to collections to litigation of various types. I've handled some HUD matters as well, housing discrimination matters, and so forth and so on. I would say approximately 70%, 65 to 70% of my practice is landlord tenant. The balance is personal injury, so for me, everything I'm gonna discuss with you today comes from practical experience. Obviously I've read a lot in my career so far, and I've studied and experienced a lot, but again, the practical experience is really what, is really the touchstone here, and particularly over the last few years. I represent approximately 40 residential properties in the state of New Jersey, and I represent various commercial developers, landlords, in respect to, or with respect to commercial properties.

So again, we're gonna talk about a whole penumbra. We're gonna go back and forth between residential and commercial, probably more a little bit on residential, which has been the focus ever since March of '20, when the pandemic really started in this country, at least. And with all that said, being said, let's get into this. As a matter of housekeeping, I've given you guys an outline that we're gonna generally follow. I'll certainly deviate from it, I'm gonna add to it a little bit, but it's really just to kind of give you a little bit of an idea of where we're going. I've also given you guys some materials. The materials are primarily made up of statutory enactments or statutes, and I threw in one form pretty much, because as you're gonna to hear me discuss in this lecture at least, you're gonna hear me discuss that many of the pleadings we will need, or many of the documents we need nowadays are online and provided to us by the court system. So it's a little bit of a, I didn't think there was really any point in me reproducing and re copying these documents for you, and hopefully I think this will all makes sense.

So with all that said, where do we start? Well, the first thing I wanna mention is, as I understand it from speaking to the fine folks at Quimbee, this is a course for newly admitted attorneys, so first of all, congratulations on passing the bar. Don't ever forget that that is an accomplishment. We tend to forget that as we practice longer and longer, but congratulations on that. That's nothing to sneeze at. You're actually in an advantage, because I'll tell you why. As a newly admitted attorney, really folks, since January of '20, which is now going back over two years ago, so much has happened that we have gone back and forth, stop and go, yin and yang, that honestly, had you been practicing for many, many years before that, it would almost like trying to learn how to ride a bicycle the second time. To some extent, so much has happened in the last two years, you're kind of lucky you're learning this now if this is what you're learning now. So don't feel that this is overwhelming or that you're at a disadvantage. Trust me when I tell you, there is more confusion now, I think, than in my whole career I've ever seen ever, and when I first started, there was a lot of confusion, which I'll talk about in a second. So we've got the outline, we've got the materials.

First caveat, I'm talking today to you guys about New Jersey law. I am not gonna talk, even though I have in the past, lectured on other state's laws or what other states are doing or what the federal government might have been doing. We're gonna keep this strictly to New Jersey, so we're gonna keep this really, really much at home, which is a good thing. So if there are any practitioners who practice in other states, do yourself a favor, do not assume, do not assume, whatever I say here is gonna be the law in Maryland, Connecticut, California, or anywhere else. I will tell you, I have learned over the years, just as a point of interest if you're interested in it, as a point of interest, you'd be surprised how really, even though we use different terms, and as you well know, landlord tenant law really stems from property, it's a cousin of property law, and therefore it goes back to common law in England, very old, archaic terms. As a matter of fact, in the New Jersey statutes, you can still see some of these archaic terms still being used. For many, many years, I've been on the Law Revision Commission to really revise our statutes. One of the issues I will tell you upfront is that they are in disarray. There's laws all over the place. It's unlike, for example, if you're familiar with worker's compensation, which is in I believe Title 34, you can go to one volume, it's one stop shopping, and that's the end of it. Here in New Jersey, landlord tenant law requires you looking at various volumes, and that can become problematic, because if you're just getting into this area, you're gonna find that you'll, every once in a while it's happened to me, you'll be ambushed by an attorney who brings up a statute that perhaps you're not familiar with.

So with that general caveat, let's now start into our substantive part of the discussion. The first part I always start with, with any class, sitting in your seat was, why do I need to know this? And listen, honestly, I've been to other CLE seminars, and I've sat there and maybe it was something I thought it would be that it wasn't, and I always start with, why do I need to know this? Because I think that's important. It's gonna be much easier for you to learn something that you need to know or think you'll need to know as opposed to something or learning something you won't need to know. I gave you some statistics on page two of our outline, and essentially in the United States, I'm not gonna read this verbatim, you can read it for yourself, but a lot of this information is before COVID. So for example, there were a million evictions in the United States in a typical year, and if you go down just a little bit further, I give you a little bit of a breakdown, which needs to be updated, certainly, when they redo our census, from the 2016 census, which essentially means we are at about 35% of rentals in this state, in New Jersey.

Now, why is this relevant? What does this mean to us? Well, here's why it's relevant. Landlord tenant law is very important in New Jersey, and it's a big area of practice. It's very unlikely, unless you're gonna be doing something very, very restrictive, so for example, if you only do personal injury, if you only do criminal work, even if you do criminal, I've ran into criminal guys in landlord tenant court, unless you do securities or something that will have nothing to do with property at all, or more specifically landlord-tenant, you're gonna run into a case, and many times I will see people that, I recognize people, I don't recognize, talk to colleagues, so it's important to know, and I think because of the pandemic, it's very important to know, because it's become a very big area. It was a national news item, still is a national news item, still a big item in New Jersey. Governor Murphy was talking about it weekly, so it's something you do need to know. At least I would submit to you that I do think it is. On the commercial side, it's also the same thing. We're seeing a little bit of a change in the climate with commercial landlords and commercial tenancy, because quite frankly, we're seeing whether or not we still need to keep some of these premises, landlord tenant because of the pandemic, for example, because of the forced majeure clauses, really kind of came to the forefront. Many businesses really suffered heavily from the pandemic and they had trouble paying their rent and staying in business, so I would say to you that if you're in New Jersey, you're gonna run across this, residential, commercial, or both.

Also, the other thing is why do we need to know this? Well, we need to know this also because the law has really flipped on its head. That's another reason why. So for example, if you were used to doing simple non-payment rent cases or straightforward non-payment rent cases, back in 2018, '19, the process is virtually completely different to a large extent, so you need to understand this. Now, I talked about backlogs also. I gave you a really good stat, which came out with the New Jersey Law Journal at top of page three, which just goes to show you where we're at in the backlog and why there's such a mad scramble right now. We're gonna continue to talk about that.

So getting into our first part, and I also wanna tell you guys at the top, I will discuss some things that have happened in the last two years. What's really, really interesting that I've never seen in my career, and maybe no one else has, because of what has happened with the pandemic, is that were major changes made in the law that have now gone away or expired, and they probably won't come back, so it's almost as if you were learning a different set of laws for a year or two, and now we're starting to get back into normal, and it's a very, very strange concept. If you've been practicing probably longer than 10 years, you'll probably understand what I'm saying, because it's just a very, very strange situation, because there is a lot of material.

When I was preparing my outline, I was saying, well, should I discuss this? This is gonzo now, this doesn't apply anymore, but I think you need to understand the background, because it could either come back to apply, or some of it may still be around. So I'm going to address this a little bit more like I would've before the pandemic, and when I say back in the old days, folks, I'm not talking about 1980, 1990, or 2000, I'm talking about 2020, in January of 2020, so it's really not that far away, not that long ago. Having said that, what's the first thing I wanna talk about now that we know that there's a reason to learn this and what we're gonna kind of talk about? The primer, which I think is the client intake, this is one of the most important areas. That was the case before the pandemic. It's also now critical during the pandemic and post pandemic, and I'm gonna tell you why.

In this area more than many others, there's a lot of confusion. I know in matrimonial law and personal injury law you have clients come in that think they know something or they read this on the internet or they learn this at a social function, and they approach you about it. In landlord tenant, I have come up with these various myths that are critical that we deal with at the outset, particularly before and even after the pandemic that you discuss these with the client, and I wanna mention the business aspect first, before we get into these myths, if you will.

The other thing that has changed is that it used to be before, and again, I'm gonna refer to them, to kind of move this along, in the old days. I'm gonna refer to the old days as going back to 2019, 2020, not long ago. In the old days, it was kind of things were a lot more loosey goosey. Everything was done in court. There were no virtual proceedings, and there were no multiple hearings to be done in most cases. The one thing I wanna say is the business aspect has changed, and you've got a budget yourself a little bit different than you used to, because it's a lot more work, things are a lot more complicated, and it's just simply not that simple, so hopefully we'll have time at the end, I could talk about that, but if not, I want you to give a lot of thought to just don't simply take a case saying, oh, this is my run of the mill non-payment case like it used to be, take a couple hundred dollars, I'm gonna go into court and handle it. You're gonna find out you're gonna wind up doing a lot of work, and I'm not saying it's work you turn away. You certainly don't, but you just wanna be prepared for all the work you're gonna have to do so you're compensated.

Okay, what's the first thing we're gonna talk about? Number one, we're talking about evictions. We're not talking about ejectments. Quimbee may or may not have another course on that, but an ejectment would be a proceeding where we're dealing with someone who else, someone who's not a tenant. I gave you some law on that at page three. You could take a look at that when you want. That's important to know, because you may run through some oddball situations where we're not dealing with an ejectment. Now very quickly, I will mention I do deal, or at least I have dealt with ejectments, where tenants have given their notice and failed to leave. That's just a little bit of a footnote to put somewhere in case you ever run into that situation, but for the most part, we're dealing with evictions, not ejectments.

Number one, number two, I wanna bring to your attention this practice note that I have on page three. These are summary proceedings, folks, so if I use terms like order to show cause or motion practice and so forth and so on, most of the time when litigators are used to hearing about an order to show cause, they're used to thinking at least about the application that used to take a lot of hours to prepare, an affidavit, a brief, and this and that. You're gonna find out it has a little bit of a different parlance in this area. Just keep that in the back of your mind. What's our first legal fiction? And again, as much as you may say, well, gee, I know this, or I've heard this, or I figured this out, I get asked these questions every day, and when I say that to you, I kid you not, which is why some clients I've represented for 15 year, and they'll ask me the same questions every month, which is why continually go over this, and this is where I really came up, to be honest with you, with these legal fictions. They were just questions that were continually asked of me.

So the first one is, the residential lease expires and now the tenant has to vacate, correct? No, it's not. I gave you the statute, and most importantly, I gave you the citation to the statute, you want to take a look, and remember what I said to you at the very top about statutes being all over the place? This statute is in Title 46. Most of your landlord tenant, the meat and potatoes of the stuff you're gonna need, which is attached in your materials, is in title two a. This one's in title 46, so remember what I said about looking all over the place. And by the way, I would also say to you that if you're gonna buy one resource, when you get into this area, there's a book by Judge Fast, F-A-S-T, and Bruce Gudin, G-U-D-I-N, it's excellent. Most judges have it on their bench. That's usually what they refer to. New Jersey practice is decent. It's a good source. It's an okay source. I don't know that a lot of people rely on it. I would recommend you do get that Judge Fast book. Most judges will have it on their bench, and they will go looking, that will be the first source they're gonna look at. So the number one fiction is you want to tell the client when they come in, and listen, folks, the reason why you wanna tell them these untruths or these fictions is because you don't want the client getting to trial and finding out that the tenant's lease, just because it expired, doesn't mean the tenant has to leave. You want them to know this stuff upfront so that if you get a client who doesn't wanna believe this is what the law is, you won't represent them and have a problem, and second of all, they won't be disappointed, which happens a lot of times. I gave you law, take a look on page three and four, you could take a look at that.

Legal fiction number two, a judgment for possession is a money judgment. Well, what is a judgment for possession? No, a judgment for possession is the judgment you get when you evict a tenant. It is not a money judgment. This again is a constant issue for clients to understand. They are two separate proceedings in New Jersey. If you're gonna be evicting someone, great, you can get possession back. That's it, the court cannot give you, there is no court in New Jersey, well at least in the same proceeding, that will give you a money judgment and a judgment for possession. Tell the client this upfront, 'cause I can't tell you how many times the case is concluded, and the client will look at me and say, how do I get my money? I'm like, I got you possession. I don't know how you're gonna get your money. I mean, we can file a collection action, but the tenant more often than not may be uncollectable.

Okay, legal fiction number three. This used to really kind of be like an ancillary issue, kind of out there. In the pandemic, it really became a really much bigger issue, and I gave you the Chapman Mobile Home case, and I gave you some other citations to look at from the new New Jersey Anti-Eviction Act. I would have clients come in during the pandemic from March of '20, really up until the end of '21, saying, well, we wrote this up and we agreed that if this happened that the tenant would have to leave. Is this enforceable? The answer is no. And we're gonna get to that in a few moments.

Actually, we'll get to this right now. There were two Summary Dispossess acts. That essentially means statutes that provide the grounds for eviction. They're in your handouts. You could see them down at the bottom of page four, 2A:18-53, and 2A:18-61.1. Just to give you a very, very basic, you could read it on your own time, give you a very, very basic understanding, Section 53, 18-53, was in existence first. That used to be primarily the older, if you will, that's the original summary dispossessed statute. What happened was at some point we really stopped saying that, or rather the state felt that you cannot have landlords come in and just simply evict tenants for no reason at any time they want, which is where 61.1 came in, which I believe was in, it was in the '70s. I believe it was 1974, '75, and they came up with essentially a mechanism where you need good cause, which is defined in that statute. You can't go beyond the statute, so you wanna make sure and tell the clients that when they come in to see you, particular residential, if you don't fall within those parameters of 61.1, I got news for you. You're not evicting them. And I don't care what you think is right, fair, or wrong. It's not happening. All right, and again, take a look at those statutes at your convenience. You'll see they give you the grounds there, very broad, but I will tell you, once in a while, we do find a case that doesn't fall within those parameters.

This one really took on a lot of importance in the pandemic, which is legal fiction number four. "I'm just free to lock the tenant out." I want to talk about this for a second. I gave you citations to the, in fact, this could wind up being a disorderly person's offense. It became a problem. At some time during the pandemic, the New Jersey attorney general issued a directive indicating that this could be a crime. You wanna be very, very careful, and I'll tell you where this case has come up, this type of case has come up a lot of times. Client will come in my office, say the tenant disappeared. I want to, first of all, the victim for abandonment, well, there is no such thing. There could be for commercial, but there is no such thing in residential as abandonment. Now, you could try and do a notice case if you want to for abandonment, but most judges will recognize that there are only two ways to regain possession if you're a landlord, and this primarily also goes, actually this does go for commercial as well.

You can have what we call a surrender, where the tenant will come to you and physically give you the keys and give you some type of writing that will say I'm surrendering the premises, or you have a judgment for possession. This idea that I haven't seen the tenant in six months and I'm just gonna go ahead and change the locks, is dangerous. Now, I know it's something that clients don't want to hear, but just because you don't know where the tenant is and haven't seen the tenant in months on end, they do have the ability, or they do have the right to come back, and I have had a few cases in my career where they have disappeared, they could be incarcerated, you don't know where they are, they just suddenly come back, and if you've changed the locks, your client could have bought themselves a problem. This one is new. This is brand new, so I'm excited about this, 'cause it's something new.

 Legal fiction number five, I can evict the tenant for any reason I want, or rather for any money they owe me. This is for residential only. I'm paraphrasing a little bit of the statute. This statute, which became effective or became law in August of 2021, August four to be exact, is included in your materials, but I just wanna kind of cover this with you, because you will run into this potentially in court, and I'll tell you what I mean by potentially. There is something that legislature deemed as the covered period, which ran from March 1st, 2020 to August 31st, 2021. Now, in your materials, which is, to be specific, is at NJSA 52:27D-287.8, you're gonna see there is reference rather in, sorry, point nine, I meant point eight, the definition of the cover periods in point eight, but if you go into point nine, you're gonna see some language that says the tenants can't be evicted if they're very low, low, or if they're very low, low, or moderate income, and I represent a lot of affordable housing.

Now, if you have market, this is not gonna matter to you. This may not apply, but for a lot of, and New Jersey has a lot of affordable housing in it, in the state, I'm just bringing to your attention, there may be a statute that says you cannot a evict if you owe rent in that covered period. Now you may say, and your client, and the reason why I bring this up folks is because the client may say, well, wait a minute, this isn't fair, he didn't pay his rent, which happens so many times. Client, the tenant did not pay the rent, let's say for example from April of '20 through July of '21. Now, it would strike common sense that for 13 months, if you didn't get part of the RAP, Rental Assistance program help during that time period, you mean to tell me I can't evict them for owing, and it's very common that some of these tenants would come into court, or you'd bring cases against the tenant where they owe maybe $15,000, which is an extraordinary amount for residential. I bring this to your attention because it's something you may or may, it may or may not apply to your case, but you may want to have this discussion with your client. Now, you might remember that I just said to you a second ago, this may or may not be an issue. Here's the deal, folks. One of the key things that the pandemic threw a whammy into is when I first started practicing in 1995, what happened was the state was not really uniform.

In other words, you could go to north Jersey and there'd be a particular type of practice, I'm not gonna bore you with it now, and you go to south Jersey and it was a completely different practice. I'd say probably getting to be around 2000, between 2005 and '10, the state did a very, very good job of getting it uniform, where pretty much, if you went county to county, it wasn't that big a difference. Well, now we've gone back to where we were, and maybe even a little bit more so. What do I mean by that? If you go into most counties now, even some counties, I won't mention names, but even some counties, you'll get different judges doing different things, so you've gotta be prepared, and I talk about this in the materials.

Be prepared for the unexpected, because I could tell you right now, you could go to different counties and get different results, you can get different results from different judges in the same county. That's what's made this practice a little bit unpredictable. I think a lot of it is driven because of the backlog. I think there are some days when courts are calling in cases, they've gotta move these cases, they can't possibly spend all the time they want on them. There's also a lot of glitches in the system, in that a lot of this stuff is done electronically, so you just wanna be aware of that, so don't think there's something wrong with you or you're missing something. If you went to, for example, Union County on Monday and you're in Middlesex County on Tuesday and Ocean County on Thursday, and they're all doing different things, that's probably the case.

All right, let's go to now page six of our materials, special problems, and I'm gonna go a little bit faster here just to kind of start getting through some of this material. You can read at your leisure. I know you'll be able to understand. It'll make sense. Special problems in the pandemic. Well, estates, because what happened was, and I bring this to your attention because this was a very, very frequently asked question from clients all the time, or dealing with the courts. A lot of times, sadly, people died. They had little family, or if they had family, the family may have been from outta state and didn't want to be involved, or just didn't want to take the time to set up an estate. I just wanted to bring to your attention, and you could read in here what I basically said, which is, remember, the rule is simple. They've got to go to the Surrogate's Office, the family does, and they need to apply for letters testamentary or letters of administration. If they don't have those, do not sit there and accept keys or documents or give access to people who are not authorized and do not represent the estate. This became a big, big problem during the pandemic, because unfortunately Uncle Joe died, people would suddenly come up here from Florida, and a couple times we would have the siblings fighting over, no, Uncle Joe left me the watch, and you don't want your client involved because they'll get sued.

Abandoned Property Act B, which is on page six, take a look at that statute. It's very, very simple to understand. Just keep in the back of your mind this statute. I had a number of clients that had come to me over the pandemic that were simply just, the tenants took off or the tenants perhaps surrendered their premises, and they left materials behind, they left property behind, and clients were just throwing material out, and I said, you can't do that. I know this is a nuisance, but if you're gonna follow the law, follow the law, and I guess for our purposes, for talking about the practice of law, you can advise the clients, put it in writing. If they decide, I know there are many times clients did not listen to what I told them, but as long as I've told them in writing, we're okay.

All right, the collection action. C, at the bottom of page six, I would say pretty much before the pandemic, I would say maybe of my practice, if you could think about the 70% of my landlord tenant, maybe 10% was collection work. People just wanna get their property back. It was relatively quick. You'd file a complaint, you'd be in court, and about four weeks later, three and a half weeks later, you would get your warrant for removal, which is essentially the order going from the court to the court officer to go physically evict the tenant, and you can essentially from start the finish, for most cases, the majority of cases, get someone out in about six to seven weeks. That has completely changed, and also, as I told you just before, just a moment ago, that August 4th, 2021 law talks about oh no, if you're gonna have something owed in the covered period and that law applies to a tenant, your remedy is the collection action, so my collection practice has considerably picked up, so just don't forget about that when you do talk with your clients.

I'm also not gonna spend a lot of time, 'cause this is really kind of beyond the scope of our discussion, but at the top of page seven, I mentioned the Fair Debt Collection Practices Act. I will tell you, there were substantial changes made in November of '21 to this law. It's a federal law. It talks about what you have to do before you sue someone for collection, not for eviction, but for collection. Do yourselves a favor as a lawyer. Go take a look at that law. Read summaries. There are various classes out there. I don't know if Quimbee has one or not, but take a very generic beginner class on the Fair Debt Collection Practices Act. It's very, very important you understand what that is. You can get in a lot of trouble if you don't follow it. Surrenders, down at the bottom of page seven, this is just some law I gave you. Just don't forget the idea of surrendering. So for example, going back to the tenants that had owed money, from the residential tenants that is, that had owed money during the covered period that we talked about.

Many times I work with the clients, I would have the tenant come in, we would negotiate surrender, the tenant would give us the keys, the tenant would sign something that says I'm surrendering the property, and in exchange for that, my client's not gonna pursue you for a collection action to pursue the debt. The surrender was a very, very effective, somewhat overlooked, but very effective technique we used during the pandemic. And again, the same thing goes for commercial, and actually the non-payment commercial work really picked up during the pandemic, because what happened? A lot of times, clients would walk in, the tenants would walk in, rather, put the keys down, and say I'm out of business, and a lot of times, which is kind of beyond the scope, we don't have time to go through this here, but there was a case out there from, I believe the Eastern District of New York involving Hugo Boss. It's a very, very good case to take a look at. Talks about the forced majeure clause. That was something that we frequently dealt with during the pandemic, 'cause a lot of businesses tanked, folks. They just did and that's all there is to it.

So having said that, that kind of gives you a little bit of a flavor of what had kind of happened between what had happened with the pandemic. Now, let me just talk a little bit procedurally, 'cause this is really one of the major things, and it's not really in the outline too much, but let me talk about, actually let me finish this portion, this next portion, because this is more academic than anything. Then I'm gonna get to the procedure. I have a section here called the former roadblocks, page eight. This is really of academic interest. I don't know that this will come back, but if you weren't paying attention, or you were paying attention and went through this, or you're not aware of this, this next portion of the lecture is really just to tell you what we did during the pandemic if you weren't around for that.

First things first, if you see the overview on page eight, essentially what the idea was was to prevent, really at the federal and state level, and not just New Jersey, almost every state as far as I'm aware of, had enacted moratoriums, and the idea was to stop the works, almost like a, if you think about it, as an injunction, and the idea was to allow the tenants, so we don't have a massive homeless problem in addition to everything else we had going on with the pandemic, with that disease, with that condition, the idea was the last thing we wanted are people living on the streets. It's just gonna enhance the problem and make it much, much worse, so I just wanted to point out that actually in The Great Depression there was, the idea of the moratorium was really used effectively to stop all the foreclosures, so that idea resurrected itself in 2020 when New Jersey and the federal government to some extent started enacting these moratoriums, which really put the breaks on. I just wanna point out that, just as a matter of interest, this pertained to nonpayment of rent, because if we would've been continuing to evict people, I don't even know what would've happened. We needed time to allow the government to figure out what they were going to do, let the people figure out what they were going to do, and then come back to it.

Now, just to kind of fast forward and give you the end of the story, what happened? Well, at least in New Jersey, what happened was essentially the rent, and again, I'm overgeneralizing, so don't write me an email and say, that's not what happened here. What essentially happened in the pandemic was we had, and again, when I say the pandemic, I'm really talking about from March of '20 through I'd say September of '21, where it really started to change a little bit. What happened was the government, the state government, was able to pretty much stop the works, and the obligation was transferred more or less to the government, who paid through rental assistance programs, and many, many tenants were bailed out. It gave the landlords a lot of money. But listen, don't fool yourselves. The landlords took a bath. They lost a lot of money. A lot of money was written off. I mean, this idea that the state came up with that you could sue tenants was really not, at least for my client base, really not a remedy at all. Most of the tenants were very low income or low income. They were uncollectable, so there was a lot of money written off and a lot of money lost. So let's talk about what we did do, and again, I'm gonna go very, very quickly because none of this stuff is in existence anymore, and will it come back, I doubt it, and then I'll talk about the procedure. We did have the CARES Act , excuse me, which was a federal law signed in by President Trump.

You can read some of the materials here. That pretty much put a stop on a project if you were federally based, so for example, if you were a low income housing tax credit, which is the largest affordable, the largest mechanism used to create affordable housing in the country, if you were an LIHTC program, or if you had anything, section eight, if you had anything to do with the federal government, or you had loaned, you had borrowed, it was a federal building more or less, a HUD building, they put pretty much a quick moratorium in there from March essentially to the end of July. That was in place, you could read that, you could see what this says. It stopped everything, and all these moratoriums stopped everything to do, again, with rent, not with conduct, so if you have a holdover case or a notice case as I call it, none of that stuff was exempted. When the pandemic broke out, on the state level, I can show you here that we had essentially two major executive orders, and that was an interesting part of the practice as well if you weren't used to that.

Most of us had never dealt with an executive order in our whole career, although they certainly do exist, but for the most part, most of us did not deal with them. You could take a look, and they're very easy to access on the internet if you wanna find them, are executive orders 103 and 106, and essentially what they did was Governor Murphy enacted a period, a state of emergency, and he essentially said I'm gonna stop evictions until 60 days after the state of emergency expires. Now, as it turned out, even though the date kind of varies, everything expired, all the moratoriums, at least in New Jersey, expired at the latest by December 31st. Now, it's too difficult an answer to say, did it expire for everyone on the same day? No, it did not. It depends on your status, your income status, for the markets for example that expired August 4th of last year. However, for the very low, low and moderate, it could have gone to the end of the year. It depends on whether or not you had something called a DCA certification or some type of rental assistant certification that was filed with the court, but just understand there was a mechanism in place for quite a while, certainly over a year, to put a stop on everything and to try and keep everything going until pretty much the end of the year, which was December 31st.

For our purposes today, I don't know when you're gonna be actually hearing this, but it's March. I'm talking to you. It's now March of 2022. All the moratoriums had expired by January 1st. I do not see them coming back, at least not in the near future. I can't see it. I think it would just kill the landlord tenant real estate market completely, 'cause we're still recovering. So all the moratoriums are over with. You need to understand that. At least understand that those moratoriums were out there. There are some holdover, if you will, obligations like under the CARES Act that still give notice and so forth that are still out there, but for the most part, I'm just trying to give you a flavor of what we did. I also won't mention or spend time with the CDC moratorium. That has expired as well. You can read about that on page 10.

Essentially what happened was when the Cares Act expired, the Center for Disease Control put out, which I had questions about since day one, whether they had the authority or the power to do that, they put out a moratorium. You could read some of the information in here. It's interesting, it's interesting, and there are some cases at the top of page 11, if you wanna read those federal cases, that, again, it's interesting, but it's largely academic if not entirely academic at this point. So that's something that, again, the idea was to buy time, and that's exactly what the federal and state governments were able to do, to buy time until there was some plan in place to deal with all these evictions, and what were we gonna do with them? Okay, return to normal. Let me talk now about one of the major things, and this is not mentioned in the outline because I didn't even know how to mention this, except just tell you. From my practical experience, did I appear in court during the pandemic physically? No, I did appear for some proceedings, not for landlord tenant. Were we processing evictions? Yes.

I was handling a number of holdover notice case evictions during the pandemic period, and again, I guess I'll use the covered period. That kind of makes sense. I talked about that before from March of '20 through August 31st of '21. We started to do, for the first time, which I had done some in federal court before the pandemic, I'd done some Zoom virtual appearances. There were none in New Jersey, and I don't know how long you've been practicing, so cut me some slack on this one, but if it was before March of '20, we were in court all the time. Most of us were in court multiple days a week, I was in court four days a week, and it was relatively, it was much easier. It was a little bit of a nuisance in the sense that it took up a lot of your time, but you're in court and you got the case resolved in relatively a quick time period, and that was the end of it. Procedurally, everything has been on its head since we kind of, if you will, came back. What do I mean by that?

Well, as today, as of now in March of 2022, and again, no one knows, so if they say they know, they don't know. If they do know, no one's telling us. Are we going to return to in-person hearings entirely? Well, we started to do the Zoom and the virtual hearings during the pandemic. That actually started to work out pretty well, even for non-payments. I think the problem was you just couldn't have, as many counties did, you couldn't have landlord tenant one day a week anymore. You had it multiple days. So are we going to go back to the prior way of doing things procedurally? No, we're not. I don't think we're going to, because I think one of the things that the pandemic showed us, which was not all negative, was that some of the hearings, for example, case management conferences, even for, not for landlord tenant, even for personal injury, it was ridiculous for me to drive two hours to go to a five minute case management conference when I can do the same thing on Zoom.

Now, as it turned out in landlord tenant, they actually enacted a new procedure which came in with the pandemic, which is where they have case management conferences for all the eviction cases. In my opinion, the case management conference is marginally useful. It depends. It can be useful. I've settled cases at case management conferences, but essentially now there are two appearances. The case I've never been to, I've never heard of an in-person case management conference doesn't mean it can't happen, and I actually just as early as last week, I was in court trying a complicated holdover case in person, because the judge felt with all the exhibits and the witnesses, it was easier to do that.

My point I'm trying to get across is, are we going back to normal? I think we are. I think we're headed down that road. If I took a guess based on what I see in my experience, I can't speak for the criminal and family, I don't know what they're doing, but at least on our side, I think the jury trials will remain to be in person. I think many of the, certainly I think the case management conferences will remain to be on Zoom and virtual. I think some of the trials, depending on the complexity, may come back to being in person, but I do feel for your garden variety non-payment rent case. I'm not so sure they're coming back in person. That could change, who knows, but I think as of today, if you ask my opinion, what do I think is gonna happen, I don't think we're gonna go back to many of these appearances being really in person. I think once people understand the technology, certainly the lawyers do, I think once the general public starts to understand and they learn how to work it a little bit better with their phones, and they perfect it a little bit on the end with the court system, I don't see them undoing everything and bringing this back in. I know there's a big push to try and get all this backlog taken care of. So the new normal, if you will, for whatever that means, the new normal is gonna be a hybrid, some virtual, some in person, and again, there's benefits and there's downsides to both. So when I talk about on page 11 of our outline, the return to normal, what does that mean? Well, again, be prepared for the unexpected, because you'll find that there are times when there are glitches, there's electronic glitches that we didn't deal with before that can be a distraction.

There is an evidence portal now. You must upload evidence. If you're not aware of that, you should take a look at that. One of the things that has really come out of, before the pandemic, which is a terrific resource, is njcourts.gov. You want to go there because there's a lot of information on there. I find that really the government has really stepped up here in terms of providing this information, because, the reason of that is because Westlaw and Lexis are very, very helpful, but they don't have the kind of day to day forms. You're gonna find them on there, and it really kind of helps with the backlog. If you have a high volume, even if you don't have a high volume, if you have the once in a blue moon case and don't know what to do, it's very helpful, so go there. So let's go back now to our return to normal.

Going to page 11, as we start to wind down here, going to page 11 of our outline, when we're handling now the cases, we're going back to now where we used to be. Is it a notice case or commonly called a holdover case? Or is it a non-payment rent case? And we're back to deciding, and we're back to filing papers as we used to do. I should also mention procedurally, let me go back up. There used to be a procedure which has largely gone away, at least the courts are not hearing them any more, as a matter of fact, the form is even offline, there used to be an order to show cause procedure during the pandemic where you could file something with the court to kind of say, instead of letting this thing, instead of letting this case sit and wait for a trial date sometime in the future, it's important enough to hear it.

There was that procedure, and again, that was called an order to show cause in the order of interest, in the interest of justice. That procedure is gone. I haven't filed one in months. The last one I filed, the last couple I filed, just to see if, I haven't seen a pronouncement saying they're officially done, but as far as I'm concerned, they're done. No one's using them anymore, the forms are gone, but there was a procedure where we could, for disorderly conduct, for example, damage to property, if the tenant had died, there was a procedure where we were able to get cases heard during the pandemic. So I gave you the essential procedure, the really basic procedure. Overwhelming amount of cases in landlord tenant court, when you consider them in their totality, on page 11, are non-payment. I talk a little bit about the notice, a little about the holdover.

If you remember, I told you earlier on about the Chapman case. If you look at page 12, here are your 18 grounds, folks, for this has to do with residential evictions. As you could see, this goes anywhere from non-payment of rent to a disorderly tenant, to willful destruction of the property, to a violation of the rules and regulations or a lease covenant, failure to pay a valid rent increase, and so forth and so on. Sale of the unit, under subsection L, is a big one. That was very important because many people decided to take the tact of either selling or person occupying their unit during the pandemic, which was very, very important. Let me give you a quick overview of this. With respect to an overwhelming amount, a majority, as I just said, are non-payment cases, which go into subsection A, the rest of these cases require a notice of some sort. Now, you may say to me, what notice are you talking about?

Well, I gave you in your statute, and again, you can, in the statutes, you can look at the Anti-Eviction Act, and you can also look at 61.2, which is 2A:18-61.2. some of these grounds may require a notice to cease, which is essentially a warning notice, and some of them require a notice to quit, which terminates a tenancy Now, I wanna point this out, 'cause I've also seen many, many attorneys make this mistake. When we get into the notice case, most people call it holdover, I call it a notice case because a notice is required, either in most cases it's a notice to cease and quit, but in some cases it's just a notice to quit. I wanna bring this to your attention 'cause it's important when you first start practicing. It is not, you will see mention in the statute, depending on the type of cause of action you have, it's not a one size fits all. It could be a 30 day notice to cease, or rather a 30 day notice to quit, 60 day notice to quit.

Remember that in New Jersey, if you look in the definition section in our statutes, it states that when you are giving a notice, it is a calendar notice. What does that mean? That means so for example, if I come in, if I want to give a tenant a notice to quit on March 15th, it doesn't run, and it's a 30 day notice to quit, it doesn't go from March 15th to April 15th. It goes from April 1st to April 31st, or April 30th. I don't remember off the top of my head how many days are in April, but it goes the full calendar month. So this is a critical, I actually just took a case over from another attorney that is very well seasoned in this work, and I was shocked to see that he had run it to expire at mid-month, and that was a mistake. So I also gave you some language down at the bottom of page 12 that talks about how you could define rent. You can get a little creative with some of this stuff. For those of you representing section eights, just remember they have special rules, and this is a pretty good caveat too for young practitioners. Always ask your client at the outset for the lease, which is now required because now there's another step. Remember I talked about the case management? Well, now you also have to upload documents. So for example, you have to do this certification of the lease and the landlord registration statement. You're gonna need them anyways, folks, and I used to pull teeth at times to get them from clients, but now they're needed up front. You need the lease on every case.

There's three things you need to know. Do you have a written lease? Yes, I need it. Two, did you register the property? That's not for commercial and residential. Yes. I need a copy of your landlord registration statement. Get it up front. If they don't have it, it could be problematic, and don't wait for the case to come in for trial. It will really be problematic. And three, the lease, the landlord registration statement, and number three, are they subsidized? And most people will say to me, well, they're not section eight. They can be subsidized. Just ask the client if they're subsidized in any way. If they are, deal with them like they're a section eight. On page 13 I gave you the other grounds that you can use for the original summary dispossessed, which pretty much now is known to be a commercial statute, 2A:18-53. Those are your grounds for eviction there.

I gave you some discussion at the bottom of page 13 going into 14 about the notices, what you have to do. Notices, folks, are done pretty much in a letter form. There's certain language that has to be in there. It's not a pleading form. Everyone does them differently. I'd recommend that maybe you go take a look around to see what some other practitioners are doing. Also, I wanted to mention that, as before, this hasn't changed either, you might want to give your clients some consideration as to whether or not you might wanna bring a collection action, along with an eviction action. It could be a waste of time, because it could turn out that the client, or rather the tenant pays the money, and now it makes the collection action moot, but it's something you should discuss with your client. I also want to go back over one other myth before I forget, and we're almost done here, and I thank you so much for your time and attention. I wanna go back over one other myth that has really kind of resurrected itself, plus.

In New Jersey, you need to prepare the client. If it's a non-payment of rent case, if it's a residential non-payment of rent case, you want to prepare your client. If the tenant pays all the money that is due, before you go to trial, not a case management conference, before you go to trial, the case will be dismissed. There was a statute that was enacted in 2020, which in fact, in '21 rather, that actually gives you, it was '20, I apologize, it was 2020, that gives you additional time to pay, even up to several days after the lockout, and you must accept the monies, so that's something you want to do a little bit more research, talk to your client about, but this idea of, I wanna get rid of them right away, I don't wanna deal with them anymore, is something you want to try and get the client to get off that stance. That doesn't work necessarily anymore. I'm not talking about the situation where a client owes four, $5,000 and wants to give you $500. That's a different story. I'm talking about the tenant who comes in and says I have all the money, and the landlord says, I don't want to accept it.

There are also some special rules that came out in the pandemic talking about whether you can accept the ERAP, that means rental assistance program, the various sources that were put together from the state to pay rent for tenants. There are various rules you wanna check in on that. You wanna take a look at that, because you want to be very careful, because selecting in some cases, or electing to receive these monies and then turn around to evict the tenant, it can be problematic. It's just something I bring to your attention. So at the end of the day, I'll sum it up for you like this, 'cause we're out of time. Is this a big area of practice? It absolutely is. I think it's gonna become bigger, because first of all, there's some indicia that shows that the younger people, perhaps the millennials, don't want to own, a lot of them don't want to own, they wanna rent. I think New Jersey's becoming a bigger, a much bigger rental state than what it already was, and I told you at the outset, we were at 35%, perhaps 37%. I think we will eventually be at 50%, and again, for a variety of societal factors, which we don't need to discuss here. I'm just seeing rentals being built all over the place.

So having said that, it's a big area of practice to get into. The area has changed considerably. It was gonna change anyways, folks. Don't fool yourselves. It was going to change anyways, but the pandemic just accelerated it, and perhaps it changed when we weren't really ready for all the change, but it can be a very big area to practice in, but you've gotta be careful, because back in the 2000s, this was kind of like a much simpler practice. Even in the '90s, it was a much simpler practice. It is not that simple anymore. There are many, many, many laws to protect these tenants. There's lots of booby traps you can get into trouble with. You've gotta be careful. So I hope that you learned something out of this.

Again, we covered a lot of information, that quite frankly, if we really unpacked everything, this would take a couple hours to do that, because it's gotten so complicated, and you can't look at it from the glasses of what did you do in 2000 up until maybe let's say 2015. It was much simpler. Each year, the court has come upon us and said, you have to give now a new notice. Now there are new protections. Now there's new provisions, that even tenants can't even, even if they wanna waive some rights, they can't waive them. I just think this is an area you wanna be very careful in, because again, it's gotten overly complicated. I do not think it's gonna go backwards. I think it'll just get more complicated. There was more protections, and let me just say this much to you. We spent, a lot of us spent, many, many, many hours, days, trying to figure out, on the CDC moratorium, whether that was legal, the CARES Act, the executive orders, and now it's all gone, and we spent so much time learning that, and it was temporary.

 So again, with all that said in mind, I hope you found this very, very helpful. If I can ever help any of you, please, and believe me, I hear from people all the time who said they saw this course, they saw that course. I'm always happy to talk to you, and usually I hear from someone who says, I really don't do this work, but I'm in this situation. Please feel free to reach out. We should be helping each other, 'cause really at the end of the day, we all need help, and I do believe what comes around goes around, so if you run into a colleague who's having trouble, help 'em. I understand if they're an adversary, you don't wanna try their case for 'em, but if they're in trouble, help 'em, because we've all been there. And believe me, I learned so much from all the mistakes I made in the early part of my career. Some of those mistakes, I quite frankly, looking back, I was glad I made them. So with all that said in mind, I hope you find a lot of this stuff useful. Again, go to njcourts.gov, take a look at that, take a look at the materials, take a look at the outline, and I really wish you the best in your future endeavors and your practice. And again, if I could be of any help to any of you, please don't hesitate one second to reach out, and I wish you good luck.
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