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Navigating Landlord-Tenant Law In The COVID-19 Era

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Navigating Landlord-Tenant Law In The COVID-19 Era

It has now been over 18 months since the legal profession was turned upside down with the advent of the COVID-19 pandemic. Every area of the law was hit hard. However, the law is not static and despite a pandemic, we adapt and move forward albeit slowly. Indeed, one of the areas which has been brought to the forefront (even on a national level) is landlord-tenant law. Regardless of what side of the coin you are on (landlord or tenant, commercial or residential), major issues have arisen. Thus, the question is despite a pandemic and the somewhat new way of doing things how do we, as practitioners, navigate these uncharted waters? In this course, we will examine the various issues which have presented themselves along with some suggestions for how to deal with them. Of particular interest are many of the moratoriums which have been put in place to purportedly stave off an avalanche of evictions. Presented by Kenneth W. Biedzynski, Esq., this course will canvas and discuss all of the above topics and more.

Presenters

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

Transcript

Ken Biedzynski: Hello everyone. This is Ken Biedzynski. And in a moment, you're going to hear my general lecture and presentation on landlord tenant law during the COVID period. I just want to tell you that in working with the people at Quimbee, they have been fantastic. Unfortunately, after my lecture was completed, there was a little bit of a U-turn handed to us by the US Supreme Court. So I just want to give you a note that at the very outset, please listen to the general lecture. At the end, we have an add-on piece, which I've added because on August 26th, literally days after we completed recording this, the US Supreme Court handed down a decision that kind of changed some of the portion of my presentation.

  Unfortunately, and I apologize for the inconvenience. Unfortunately, in this area, there have been many, many changes of the law that have happened kind of quickly, and it has made it a little bit of a moving target, so to speak folks. So I just want to remind you, there's an add-on piece at the very, very end, which I discussed what that change is. I'm just inviting you to stay on and listen to the very end, because it will change some of the things I said. So if you go back and listen to that, particularly with the CDC, you'll understand what that means later on. Things have changed, and we want to make sure that we got you the most up-to-date information as possible. So thank you for your attention, and I hope you enjoy the lecture.

  Folks, good afternoon. My name is Ken Brzezinski, and I am an attorney who practices in the State of New Jersey. I'm licensed in the State of New Jersey, and I am so happy to be with you guys today. I mean that. And I first of all, want to congratulate you for being involved and taking a Quimbee course. Quimbee is a fantastic company. They really have some great ideas. I have no affiliation to them. They've just asked me to come on and speak. So this is not a sales pitch, but I just want to tell you that they do a great job, this presentation on a large part because of what they do should be very interesting. And the folks are fantastic. I want to, first of all, thank Gillian really just so top flight professional and top shelf.

  So with that, let's get into this. Now, today, what we're going to talk about is we're going to have a general discussion about the recent trends in landlord tenant law. Originally, I was going to talk just about residential, but I thought I throw some commercial aspects in and what I always like to start with on any CLE course is, I always like to start with... because I know when I'm sitting there listening to a lecture myself, why are we doing this? What do we need to do this for? Well, I don't think there's any secret that in this country, at least, an matter of fact, in the large part of the world, that from March of '20 until let's call it August 31st, it's not August 31st yet, or maybe by the time you listened to it, it is, but let's go from March 1st, 2020, to August 31st, 2021.

  And to borrow from a recent piece of legislation here in the great State of New Jersey, I'm going to call that the COVID period. So anyone dealing with the COVID period or who has been alive during the COVID period who's been watching the news knows that there has been this looming eviction concern, which is not only engaging here us here in the State of New Jersey, but certainly the country. And the question is becoming, how are we getting through this as attorneys, which is what you and I are doing and what we practice in? So what this course is designed to do is to talk about that problem, give some thoughts and ideas, and offer some real-life suggestions based on practical realities of what I do in my practice.

  Now, not to spend too much time on me, but just to give you some point of reference. I'm an attorney who's been licensed and practicing in the State of New Jersey since 1993. And one of the things that I've explained to Quimbee is that, and I think one of the reasons why I'm on here is New Jersey is a very, very progressive state. So in other words, this is not just simply a state where we don't really have any involvement or any heavy ties or any heavy lifting going on with landlord tenant law. As a matter of fact, on a resident side, basically, if you look at some of the census numbers, approximately 37% of our housing stock is rental, certainly because of what has happened in the recent times in the COVID period. A lot of businesses have migrated to the State of New Jersey. So there's a lot of landlord tenant work here.

  So as a starting point, I guess, let me say that this is something that's important because it's going to affect us all, whether you're in California, New Jersey, Texas, this is something that is on everyone's mind and everyone has to deal with as an attorney. And again, also just to kind of finish my thought as to why do we talk about this, why do we get involved? Invariably people will say to me, "Well, I'm not a landlord/tenant practitioner, so what do I need to do this for?" Well, the reason why you need to do this is because as a practitioner in most states, unless you're going to have really nothing to do with the civil side, so for example, if you're doing... I'm making this up folks, if you're doing intellectual property perhaps, if you're doing criminal work, if you're doing securities work, yeah, maybe you won't need to know landlord/tenant.

  But if you're going to represent a business, if you're going to do property law, and a lot of times people do lump us into the category of property, real property attorneys, which I'm not, I don't handle transactions or closings and so forth. You'll run into invariably situation. So for example, if you buy a business, your client may buy a business subject to a commercial residential tenant. You may be called upon at some point to the draft a lease, you may be called upon sometime in litigation to review a lease, and advise a client on how to litigate that case because of the lease.

  So I say this because this is something you will come upon. And I don't enjoy saying this, but I've really made a lot of inroads and a lot of business by getting referrals from colleagues who have gotten themselves into situations. And unlike many areas of law, one of them that comes to mind is, for example, worker's compensation or some of the more kind of niche, if you will practices, this is a niche practice. It's something that people run across very frequently because of what's happening in the world, and our country. But it's something that I can tell you in any state will quickly get you into trouble. And that's not just New Jersey. And I want to talk about New Jersey in a second, but it's also because of the fact that this is something invariably, we run across more and more particularly as the political climate and the business climate and the economy become a little bit more under fire and a little bit more difficult out there.

  Now, you may say to yourself, and also I want to reiterate this to everybody, I'm in New Jersey. And like I said before, we're one of the most progressive states, which is why I think that this is a good reference point. Am I going to talk strictly about New Jersey law? No, I'm not. What I'm going to do is kind of use it as a baseline. And I will tell you, folks, I probably taught about 15 of these courses, and in all the research I've done in all the times I've been doing this, I've ironically found that many of the states may use some different labels, but for the most part, we're pretty similar. So if I do refer to something in New Jersey, I'm going to pepper in some other states. But if I do refer to New Jersey, believe or else, I try and pick topics that pretty much across the board are the same process.

  Now, having said that, what are we going to do today now that I hopefully have convinced you that there's a reason to know this, even if you don't practice exclusively in this area? And by the way, there have been recent trends with laws that have been kind of geared more towards protecting the tenants, particularly in the residential, certainly on the residential side, in terms of consumers, credit reports, and so forth. That's been a recent, very, very recent nature. As a matter of fact, still going on as we're talking now. So neither have there been new concepts and new laws going on, but obviously, this is an area which is clearly in flux. Now, I've mentioned at the outset, I'm going to discuss some commercial, not as much as residential, certainly, but it helps the pepper in the commercial stuff, because again, you don't need to have a large commercial tenant.

  There are many mom and pop corporations out there and businesses out there that many times you may need to deal with this as well. So what are we going to do? Well, just quickly as our learning objectives, the first thing we're going to do is kind of review kind of the game plan or the general rules that pertain to what we're trying to do here, and what we're not talking about, because we're not going to go off into some other areas that may be a little bit too far field for us. We're going to discuss concerns and current issues that come upon us from the pandemic, which I think some of us thought might be a temporary situation. And now it appears to me that it may become a long lasting, if not permanent situation in terms of how it affects us in our practice as attorneys.

  Third, we're going to talk about some best practices. And finally, just some difficulties and pitfalls and maybe even some predictions for whatever my opinion is worth to see where we go from that. So having said that, like I said at the very, very outset, we are talking about the COVID period, the covered periods I talked about. And I said to you that in New Jersey and in many states that we have a heavy rental population. And one of the things that I've kind of learned in my practice also is the millennial generation for whatever reason is also very kin to rentals, for whatever that reason is, whether it's cultural, financial, I don't know what it is. They are very prone to be renting as opposed to buying. And I'm not saying that people are not buying, I'm not saying that, but I'm saying that there's a big area of where there's a big glut or where there's a big influx of people renting as opposed to buying.

  So having said that, let's get into this now. Now, the first thing I want to mention is that after we're beyond all that, is that obviously, this is an area, and I don't think I even need to say this, but I'll say it. This is an area which is in flux. As a matter of fact, in talking to the really good folks at Quimbee, I had delayed this for about a week doing this webcast, because a Supreme Court decision came out, some more federal decisions have come out. And it seems like every day where we were maybe used to one change in the law a year, it is now been almost weekly, which is a lot. It's like lightning speed, as you can probably imagine for the practice of law. So we're going to really go over some things. And I just want to kind of reiterate to everyone that if you go back and listen to this, even a few weeks later, you may say, "Well, wait a minute, this guy's wrong. This didn't happen. Or this changed, or that happened."

  Well, the answer is, is that a lot is changing very, very quickly. So you want to just keep in the back of your mind that some of this stuff can be changed and can be updated. And again, I think a lot of us thought that for the covered period, there might be special rules that might apply temporarily, and then we return. What I have recently learned, and we'll get into this a little bit later, is that some of the changes that I thought were going to be temporary in nature, are not. Some of these changes now that are coming about from COVID, I think are going to stick. And I think we're realizing that the practice is going to change.

  Okay. So when we get into this, let me first of all, eliminate some things so people are aware of what we're not going to talk about. I'm not going to get into some kind of ancillary topics, which seem to be related, for example, like a ejectments. What is an ejectment? Well, an ejectment is a situation where you eject someone who has no right to the property. A perfect example is a squatter or a trespasser. That person, whether it be commercial or residential, has no right to be in the property. And the answer is you would eject them. You would not evict them because they're not a tenant. I just want to make it crystal clear that we're not going to get into issues of that.

  Also, we're going to talk primarily about two causes of action. And again, some of these terms may be different, may be used in different... They may be called different things in different states, but essentially, we're going to talk about a collection action, and a summary dispossess action. Now, summary dispossess basically means getting the real property back. In some states, it's called summary dispossess, and in others it's called eviction. Could be called different things, but it basically means the same thing. It means recovering the property. And the second type of action is the collection action, which is really just basically seeking a money judgment. So it's just standard litigation, if you will, whether it be residential or tenant, and that's contract-based, certainly going from state to state.

  Now, also, I would mention that in talking about this area, generally, when we get into this, I want you to consult with your particular state's jurisdiction if you want more finite answers. I will give you just some kind of very, very preliminary basics, but please, check your states and I'll throw some states in as we go. So having said that, what are we typically talking about before we get into the COVID? Because I need to naturally progress into that. That's the reason why I'm doing this. And some of this stuff right now has not... Some of these laws and these procedures have not applied for quite a while and whether they come back or not remains to be seen. But we need to kind of go chronologically, so this helps.

  What are we generally talking about with eviction actions? And again, this is residential commercial, and I'll break them out if they need to be. We're pretty much talking about something what we call in almost every state, a summary proceeding. In other words, I also do general commercial litigation. That happens to be the typical lawsuit with discovery deposition, so forth and so on. That is not what we do here in landlord/tenant. Landlord/tenant is designed, at least it was designed, to get your property back quickly. Now, obviously, COVID-19 has really frustrated that on many levels, but for the most part, the design is to get the property back as quickly as possible. So it tends to go relatively quick. It tends to go, for the most part, without discovery, without depositions, and you're into court pretty fast.

  Now, it doesn't mean that the issue is always non payment of rent. There may be something called conduct, which has nothing to do with rent. So that's what we're pretty much starting about. And I want to then pick it up from my first thing that I would recommend that we all do, which is first and foremost, I'm a... Obviously, in any case, the client intake is extremely important. I think in this area, it's even more important than ever. And I'll tell you why, the reason why is because there's a number of myths that people the clients believe. And when they get to... because a lot of some... You have to remember something, folks. A lot of these laws even in many of these states, they stem from common law from English law.

  And I'm not getting into that, but I'm saying they kind of go back. And some of the principles in a lot of states are a little bit archaic. They go back to old, old rules that have really not been modernized. And they are being modernized as we go, but as you know, the law doesn't move that fast. So the client intake is critical today because a lot of times, we've read these horror stories in the paper, whether you're a lawyer or not, you've read them. Tenant trashes the place. I read about a tenant in Florida, I believe it in Florida who has not been evicted in 20 years. We're talking also about tenants... We're not talking about foreclosures, but I read about a gentlemen in California who is in $1 million home, and can't be foreclosed, cannot be removed.

  That's a tough talk to have. That's a tough discussion to have with a client to explain to them, "You own the property, but you're not getting it back." Why, Well, we're going to talk about some of the reasons here today, but that's a tough discussion. And I think that one of the things I've learned is simply be very, very careful in these cases in trying to explain the rules to the client at the end. And for example, if you were sitting here right now as my client, I would tell you straight up, "We're in a situation of flux. We started off thinking that we had this thing pinned down, maybe the COVID-19, the pandemic so to speak would be done by January of '21, we're now talking about '22." And certainly here in New Jersey, we're talking about some of these moratoriums not expiring until January 1st, 2022.

  So I think the first thing I would do is talk to the client and bring them in and really kind of lay your case out, where you want to go, as opposed to filing a complaint and let's kind of clean this up in discovery. That's not going to work here, or at least it could work, but you could really have some problems with the clients. And I think that one of the first things I recommend you strongly do is to put something in your retainer like I do that, because of COVID-19, there may be some unpredictability as to the laws. And I also want to caveat everyone, regardless of whether you're in the great state of Ohio, great state of Tennessee, it doesn't matter where you are. Remember also that the federal government has now gotten involved. And traditionally, the federal government has not really gotten too much involved in two areas of our law.

  One is at least here in New Jersey, personal injury for the most part. And second is landlord/tenant. They're now getting involved in landlord/tenant because it's become a national issue. And we're going to hear later on about the CDC, the Centers for Disease Control getting involved and the legality of that. So in other words, you've got competing, at least I could say, like for example, in New Jersey, and this is probably the rule of most states, you've got the state law, and then you've got the federal law to compete with. You want to let your client know that. Also in New Jersey, the other thing I want to mention to a lot of tenants is, like most states, I shouldn't say most states. Like some states, we have a law called the Anti-eviction Law.

  This law, folks, will only allow you to evict for certain reasons. In the 70s, we changed the law here, which is also the law in some states, and consult your jurisdiction to really confirm this in your jurisdiction. But in many jurisdictions, they passed laws restricting on the grounds that a tenant can be removed. Now, without getting into some exceptions, like for example, if it's a seasonal rental, farm rental owner-occupied, where there may be different rules because it's smaller, a special use in most, in some of the states, like in New Jersey, they have restricted the grounds of removing the tenant. And they had done that kind of before COVID because in states that are heavily populated with a lot of density, like New Jersey, you wanted to make sure we didn't have the problems like we did in the 70s, where landlords would show up and just say, "You got to leave today," and you're out and change the locks.

  You don't want that chaos. And particularly now after COVID, you're not going to have that chaos in many situations. New York city is experiencing this problem, or at least they're dealing with it. California is dealing with this. other states are as well. They want to try and maintain the status quo. So you don't have, at least in theory, great migration and perhaps an exacerbation of the COVID-19 pandemic. So one of the things I do with my client, is I sat down and explain to the clients, like for example, one of the big issues here in New Jersey is we have a state statute, which if anyone's keeping score, it's NJSA, which is New Jersey Statutes Annotated 46:8-10. What does this tell us?

  And now this is not the rule in all states, but in New Jersey, for example, I always have to break it to the client and tell them, "If your lease expires, residential or commercial, by law, no matter what the lease says," now, commercial, the parties are a little bit... they're treated a little bit differently because it's commercial, but in a residential, the lease becomes month to month. And you need to know this because I must have... Folks, I still get to this day. I've been practicing since 1993. And I don't say that to impress you. I've been getting a phone call at least a week. The lease expired. Tenant has to leave, right? No, no. The answer is the lease is extended on a month to month basis. So that's the first myth as I call them that I need to sit down and tell folks.

  The second thing is, depending on your jurisdiction, I always get this issue that the courts are not hearing cases or the courts are hearing cases, or the courts are doing this to the courts of doing that. Whatever your jurisdiction is, my second recommendation is to check this myth with the client and tell them what your jurisdiction is doing. Frankly, in New Jersey, we are hearing some cases. We're not hearing others. We're hearing parts of the cases. So consult with your jurisdiction. And please, tell your client before they get in there exactly what you're doing. And I guess as a footnote, one of the things I tell a lot of people is, these cases tend to, on the residential side, and sometimes on the commercial. But not that often. Sometimes these cases tend to be small. And some of the biggest cases I have had, folks, on commercial and the residential side have started off as small tips of the iceberg and beneath the water, you know how big the iceberg actually is?

  What's my point? My point is this, at the end of the day, you and I are colleagues, and we run a business. Make sure on any case, and you may say, "This is common sense. Why is this guy saying this?" It is common sense, but I run across this many times. People will not have retainer agreements. "Ah, something small. Give me 500 bucks. Give me 200 bucks. This is not this is not complex litigation." That's great. But remember something, you always have the threat potentially of... And tenants are raising these issues, folks. They are raising federal issues to try and remove cases. The federal court doesn't work a lot of times, but sometimes it does. Or if in your state, they have the ability to counterclaim. That's number one.

  Number two, I don't think you're going to have the... You may have a diversity, but I don't think so. But you want to make sure that everything is crystal clear because you don't want to find out that your case is appealed, removed to a different division in the courthouse, and now, all of a sudden, you started off with little case that you were charging 5, 6, 7 hundred dollars on, and now all of a sudden, you're involved in an appeal. It's being removed. And you have no retainer agreement. You want to make sure you know what's going on because again, by way of example, and I don't think New Jersey is unique on this. In New Jersey here, for example, we have to go through multiple layers of proceedings, unlike what we did in the past.

  And I would imagine this is the same... I only appear in courts in New Jersey, but I would imagine this is the same problem they've had in other states. Maybe not every state, but certainly in some states that now extra processes or extra levels, extra proceedings are necessary just to handle perhaps what may have been a garden variety case before. So you want to make sure your retainer agreement is a little loose to give you some flexibility, because again, procedures have come up down the road. Okay. Number three, now, in some states, I know this is not the case. I know this is not the case, but for the states that are like New Jersey, I want to say this. You want to check your jurisdiction. If you're getting a judgment for possession, which is called here in New Jersey, some states call it that some down.

  If you're getting a judgment for possession, which gets your property back, many times in states like New Jersey, you have to file a separate collection action. Now, I know there are other states. I know that is not the case. You can file for both, or you get both in the same matter. Check your jurisdiction. You want to let the client know, because at least in my state, I can tell you, I can't tell you some of the shock that clients have told me after we go through a lengthy proceeding or something that may be particularly difficult or emotional for them, they will say, "Where's my money in judgment? How do I get my money?" And I have to tell them, "You're not getting your money unless you file a separate action." And then that has all its other problems.

  Okay. Again, with a lot of times too, what I find, which is a problem. And again, folks, I can't stress this enough, and I know you may roll your eyes and say, "This is common sense." You would be shocked if I told you, and I won't waste your time telling you, but a lot of times the clients will go off. Even in commercial settings, will find the lease online or find it at staples. They don't read it. They don't understand it. And they then come into your office and they say, "I've got this lease, make your magic." And then I have to break it to them that this clause is illegal. This one doesn't make any sense. This one is against you, and so forth and so on.

  So you want to be very careful. And one of the first things you want to do in the client intake is see the lease. Now, I can tell you this much, in some states like New Jersey, the four corners of that lease for a commercial setting are going to govern what's going to happen. It's an arms length transaction. The parties have negotiated it. You want to make sure they understand the terms. And you're going to be very... You're going to be lows to try and start pulling out emails or saying, "I have phone conversations that contradict the written 35 40 page lease." You want to find that out at the client intake. I can't tell you how many times I've seen people burn that right before or getting ready for trial.

  They finally see the lease, and they're like, "Wow, what does this mean?" So we want to take care of that. All right. One of the other things that I have found, at least in New Jersey, and this may apply in your state as well, this goes for any body. I found this as very, very helpful. Build your library. I mean, unless it's a very, very small routine case, get your library together. Many times, states have to reorganize their statutes. And a lot of times, the law may be in two, three, four places. At least in New Jersey, that's been one of the problems, and they've been trying to reorganize that for decades and they still haven't done it. So make sure you have your library, which I would do that for anything anyways, just to have everything in place and find out, do you have everything in front of you, or at least you know where to grab it so that one of the worst things you want to do is file an action and find out that someone else is pulling the statute that you're not even aware of.

  Okay. Also in most states, in most states, you are not allowed to take on what we call here in New Jersey self-help; changing the locks. Again, that's a conversation I want to have with a client because a lot of times, clients do not convey or they don't communicate. They sometimes get into conversations with the tenants themselves. They take it upon themselves. They run into them, or the tenant comes into their office, or they get into a spat. And the next thing I know, I get a phone call from attorney saying, "Your client locked my client out." I can tell you right now in New Jersey, not only is it illegal, it's a crime to do that.

  If you do that... I'll just leave it at that. It could potentially, that's the best way to say it. It could potentially be a crime, but you bought yourself a lawsuit. If commit what we call a wrongful eviction. So you want to have that conversation at the very, very beginning as well with the client to make sure they understand that. Okay. Let's now talk about the pandemic. And again, and let's take a moment and just think about what we just talked about. We just talked about some general rules and how everything was going on. And we also understand that in most states, the landlord... It's probably every state. I won't lie to you. I don't know every state, but in many states, like in New Jersey, you have to go through a court officer to have the tenant evicted.

  So we know there's no self-help. Probably not a good idea even if you're allowed to do self-help to take it upon yourself. But most states will allow for due process and they don't want you to simply removing the tenants, which I wouldn't recommend you do, even if you could, on your own. Okay. We know what we have to do on the commercial and on the residential side, then pretty much. Let me just talk a little bit about some of the special problems again, in in the pandemic ara, which is the covered period. Would have been some problems. Well, number one, on the residential side, I have run into a significant amount of a states.

  Sadly, tenants are passing away. Some of them may be older. It doesn't matter really what their age is, there have been people that have passed away. And this is where now we're pulling the ocean back, the water from the ocean. We're seeing what's really under the water. Many times, when a tenant passes away, there's usually no family member to step up. In New Jersey, we have what we call a surrogate's court. Every state, I believe has one, although, don't hold me to that, but many states have a surrogate or a state's court, where they have to go to to get permission to administer the estate on behalf of the deceased. Well, what happens in many of the cases, at least in my state is that no one decides for whatever reason there are other from out of state, there's really no estate to speak of, but we go back to square one, which is, "I just can't simply just tell my client to change the locks." And I will tell you two things that are related to this, why this is such a problem in New Jersey.

  Well, one, you can only get possession in some states and particularly in New Jersey, you can only get possession one of two ways, either the tenant commits what we call or executes a surrender, which typically requires two elements. One is turning the keys back, and signing something. Even if it's simply says, "I surrender Joe Tenant." They have to commit a surrender or you get a court order, which would be your judgment for possession which gives you your property back. The problem with an estate issue is you have a situation where Joe Tenant passes away, maybe the sister comes in and says, "I'm going to stand in the shoes of the tenant." Well, you're not recognized by the court. And obviously, a power of attorney has expired or should have expired as I understand it upon the death of the tenant. So now you have no authority to deal with me."

  And in New Jersey, where this becomes so problematic like in some states, although not all states. Again, I keep saying that, but I'm saying that for a reason, because if you pick it up somewhere, I don't want someone to say, "Oh, this guy said this." But in many, many instances, the problem is just for simple abandonment. So for example, in a commercial setting, there's something called a going dark provision. And if you have a commercial tenants, it's very common in commercial leases, there'll be what we call it going dark provision, which means the store, even if you continue to pay the rent, must be open. And the reason why you want that as obvious, you want people driving by the shopping center of the strip mall to see the place is open. If they see a dark store, it leads to a bad conclusion.

  And certainly, not one that's favorable to conducting business. So they have what they call a going dark provision. Having said that, it's a little bit different than residential. At least in New Jersey, there is no cause of eviction for abandonment. And this state, again, going back to the client intake, which I always tell clients this as well in this state, for example, and check your state's jurisdiction if you're not in New Jersey. In this state, if the tenant decides to give you notice and they changed their mind, which, folks, has happened a lot in the pandemic, the penalty is not you a victim. The penalty is they get the rent doubled. And sometimes if they're not paying the rent anyways, what differences does it make? It's not helping the client.

  So again, states have been had been a big issue, I wanted to mention that. In New Jersey also, we recently changed the law, and consult the law in your state, that in many states, there are restrictions on disposing of the tenant's property. Now, at least in New Jersey, courts are a little bit loath to deal with a provisional... Actually, they can't deal with the provision that says you can simply just dispose of it if it's signed in the lease. Many times, some of these rights that clients will present to me as the landlord, and I'm really not talking from a tenants point of view, but many times they will present to me leases that have provisions that quite frankly, the tenants either can't waive the right, even if they do, or it's illegal to begin with. So disposing of personal property is always something that's problematic.

  Now, again, going through the commercial side, that's usually something that should be addressed in the lease. And if it's not, you want to let your client know. Also, I should say, as a general matter in the pandemic, one of the things that's kind of come back that's really made a striking comeback is the collection action. And I talked about this, and you should talk about this... I talked about this at the top, and you should really bring it up to your clients. Now, I'm putting aside commercial for a second because collection action is usually almost always brought because you usually have a base entity. And usually, you should have a personal guarantee of some sort, some type of security into the lease. So you're going to bring a collection action. In a residential, many times, you don't bring a collection action because usually the tenants evicted and either you don't want the money. If it's what we call a conduct case or a for cause, some people call it.

  They call it all different terms. Basically means if it has nothing to do with rent. I call it a notice case, because you require certain notices and there's two of them, a notice to cease and notice to quit. But having said that, and many times, you don't want the money because you want the tenant out, you want the property. Or their tenants folks. They don't own anything. And you're left to garnishment or maybe collect execution or a levy, which many times it depends on what they owe and who the tenant is, collection may be very, very difficult. So having said that, you want to consider collection actions and talk to your clients about that at the very outset.

  Now, in New Jersey and some states, you can do both at the same time, which is not necessarily a bad idea. Particularly in New Jersey, there's recent legislation that was signed on August 4th by governor Murphy, which pretty much indicates the landlord's... You really better consider doing a collection action because many of the cases are going to be dismissed. And I'm going to talk about that in a minute, but I just wanted to reiterate that the collection action is something you want to consider. Now, as an attorney, we should all look out for each other because, let's face it, we all make mistakes, and there are booby traps in some of the laws you want to be aware of.

  This is one of them. There's something called, which is a federal law, The Fair Debt Collection Practices Act, which you can find that Titled 15, which actually the citation would be 15 USC or USCA, depending which when you will look at. Section 1692, and it's actually sub paragraphs A through D. D as in David, that is. You want to take a look at that law. And I'm not going to go into this here. You can find that at the Quimbee courses talking more in depth about the The Fair Debt Collection Practices Act, but you want to look at that law. And what does that law provide? Well, that law provides that if you're going to collect rent, if you're seeking to collect rent, there may be certain disclosures that you have to give before you file your action.

  And you don't want to run a file of some of these laws, because some of them can be really more technical than substantive in nature, and you can get into problems. Now, having said that, you also want to also ask the client going back to... You also want to review with the client, if they're going to start telling you want to go back to the client intake. I forgot to mention this, but I want to mention this. If there has been communication between the landlord and the tenant, or if there's been notices or letters, or there's a claim of habitability for both residential and commercial habitability, I'll tell you what that means in a second if you don't know.

  You want to ask for that many times, I can't tell you how many... I don't know how many cases like this I've tried. Thousands. And I don't say that to impress you. I'm just saying that to tell you that I'm giving you as advice, or I'm giving you thoughts based on what I've actually done. I can't tell you how many times since there is no discovery, I do my own self discovery with the client. I can't tell you how many times if there's another attorney, or even if there's not, the tenant will testify or the tenant's attorney will cross examine my client and say, "Well, what about this email where you responded and said, 'Yeah, I know the air conditioning is broke in the premises residential or commercial?'" And habitability is not just a residential concept. It can be a commercial concept. It certainly is here in the State of New Jersey as well even though it's not that popular. So I just wanted to mention that.

  Now, let me go back to... Let me finish my thought if you will, in The Fair Debt Collection Practices Act. I just want to give you some citations here, just if you want to go back and read some stuff, just to give you some really good ideas. There's a great case called Romea, R-O-M-E-A, versus Heiberger and associates, which is 163 F.3d 111, that's 163 F.3d 111. It's a second circuit case from 1998. You want to read that. And what that case basically stands for is the proposition that rent is a debt under the Federal Debt Collection Practices Act. I'd also recommend that you also, along the same lines for the same purposes, read Common Ground Community, Inc.

  And again, the first name, I don't even know how to even say that is a very, very long name, but the citation is the most important thing. It's 104 Federal Supplement District Court, certainly second 363. And that's Southern District of New York, and that's 2000. And New York has some great, great landlord/tenant laws that as long as they are, not pertaining to some of the New York laws, they really have some great stuff coming out of there. Also, and I know you guys probably know this. I neglected to mention this at the top. Do not assume, and I wouldn't certainly. Do not assume unless it's a federal action. And even then, nowadays, you want to really double check it. Don't assume because you read it, they do something else in one state that it applies to another.

  And again, folks, like I said, I'm just telling you, I've been this road and you may say, "That's ridiculous. Who would do that?" Well, the answer is that happens. Now, going on the surrenders, I want to go back to this. This is another issue it's come up in COVID. You want to be very, very careful that your client doesn't turn around and say, "Well, guess what? I got on the surrender. I got in the leave." I've had a couple of cases where I haven't done my investigation, or I've done my investigation and found out, "No, you coerced or you threatened or something else happened. And there's nothing to document what you did." You want to find that out at the very, very beginning. Now, I want to get on and move on to procedural disparities. In other words, what's going on procedurally.

  This is hard for me to talk about because, as a matter of fact, every county virtually in New Jersey is a little bit different. Every state is different. For the most part, what has happened here in New Jersey is, many of the proceedings on the civil side for at least in person have been left the jury trials. Certainly, for the landlord/tenant, there's really nothing going on in-person. And the sense I get is a lot of this stuff is going to remain virtual. Also, I would just recommend to you the probably spend a minute, remember that conversation we have with the client intake, you should really kind of pay some attention to talking with your client about what a virtual hearing is about, because I will tell you, many times, I will get clients answering the wrong question. Either they didn't hear it or weren't paying attention.

  Or there'll be looking for a document that they've never studied before, even thought I sent them the exhibits before the trial. Client preparation for trials in the COVID area has become very, very important. And if you do have a jury issue, you really gotta pay attention because I have not done a jury trial in the COVID era yet, but I've heard of people falling asleep or looking down insinuating that they're looking at their phones. And again, they're just trying times, and you want to spend a little bit of time, the last thing you want to be doing, and I've done this too many times, folks, is talking with a client the day of, and find out they have no idea what Zoom is. They've never heard of a virtual hearing. "So how do you do this? Can I do this on my phone?"

  Well, then guess what? You can't see the document, then I'm going to upload and share, and you need to know what the exhibits are. And you need to have a little bit more understanding that you used to have in court, because it used to be, if you couldn't find or you didn't understand it, you could possibly even get away with pointing to the place in the document and showing them. It gets a little bit more difficult in virtual, and I tend to find, in my humble opinion, that the courts are a little bit more impatient. They want to have you upload it right away. And even if there's technical difficulties, I would not say not tolerated, but the courts almost seemed to want that some of these proceedings to go a little bit faster. And if you run the technical difficulties, that can be a little bit problematic.

  And by the way, you really should, if you have it, and you'd be surprised folks, as lawyers, I've run to some people who were really not technically proficient and we don't have a choice anymore. I do firmly believe if you want my humble opinion, I felt this. And this goes beyond landlord/tenant, into general civil litigation, at least. I can't comment on criminal. There are many preceding, motion practice, for example, conferences that will remain virtual. I am convinced because number one, there's no sense in you driving two hours through a four or five minute conference. As we all know, in many cases, or at least in some states, even before COVID, they were starting to get this, doing stuff on the phone or on the papers more often than not. So you want to really understand the technology. It's not really an option anymore, and it's not a good idea, if I could say this to you to have your secretary figure it out, because if she's not around, you better know what you're doing. And you may say, "Well, this is ridiculous," but I'm telling you this happens.

  Okay. So let's now get into the covered period. What has changed and what's really going on and what's up to the minute, what is the state of the art, and what are the developments? Here's some general principles you need to know in practicing this area. Number one, every state, for the most part, to the best of my knowledge, certainly in New Jersey, in many states surrounding us enacted, they want the moratorium way. So when March came and we realized we had public emergency, they said, "Stop... First of all, the courts for many courts were closed. And then we started off with a moratorium, many moratoriums. Now, the idea of the moratorium is not new. If you do some research, you'll find out that to stop the foreclosures in the great depression that technique was used. And maybe that's where it originated from, I don't know. So we started with that. Obviously, at some point you cannot continue with a moratorium in perpetuity because you do have tenants clearly that are not paying their rent either intentionally or they can't. And that's not fair to the landlords. And it's just causing a strain.

  I mentioned before that there was a law signed in New Jersey by Governor Murphy, which is a little bit, I wouldn't say advance, but a little bit of a hybrid of what some states have done. And pretty much what they did in New Jersey is they've allocated $500 million for rental assistance and $250 million for utility assistance. Under this new program, what a tenant can do is they can, what we call self-certify. And in many states, you can self-certify, or you can certify through the government with their assistance. And again, I'm overgeneralizing. Consult your state. But I'll talk about this in a second. And what they are saying is you can pretty much certify that you make X amount in income. You can second certify you can't pay your rent because of a COVID-related situation.

  Again, generally speaking, and third, you have applied for some type of rental assistance. And it's rental assistance, obviously that you're available. Now, as time has gone on, some of these moratoriums or moratoria, I should say, have stored the lift, which they have to, they can't stay in perpetuity. Now, I want to point out something which is in your materials just happened. Like I said, Quimbee's been terrific and working with me, giving me some additional time to figure stuff out. Just last week, there was a case called Christofis, I think that's how you say it versus Marks. And I'm going to include it in your materials because the US site is not out yet, but it was a decision rendered on August 12th. And what's very, very interesting is it's procedural.

  I won't spend time on this. You can read it for yourself. It's a very, very short opinion on a order for injunctive relief. But what's interesting is, I want to quote this. It's talking about the New York Law, the New York State Law. And New York has a couple of laws, which I won't get into detail with this, but what's thing is in here justice Sotomayer goes on to say that under the New York Law, if a tenant... Quote, it says, "If a tenant self-certified financial hardship," part A of this law, that's me saying that, "Generally precludes a landlord from contesting the certification and denies the landlord or hearing. This scheme violates the court's longstanding teaching that ordinarily no man can be a judge of his own case cause system with the due process clause," close quote.

  I'm going to give you guys the citation. This just came out last week. And this is one of the problems we have in some of the states is that there's no mechanism that allows to... You could come in, and what do you do if the tenant commits fraud? What do you do if the tenant lies about their income? Now, in some cases, if the property is affordable, there may be a way, or if they're income restricted, you're going to know what their income is, but there has to be a mechanism, at least I would think there should be. There should be some kind of mechanism to be able to see what their income is and challenge this.

  So for example, if I make $300,000 a year, I should not be able to go into court to stop my eviction on a residential side that is. I should not be able to go into court and simply say, "I make $30,000 a year," because the court's not going to certainly know what my income is in a way we go. Now, I should say that at least in New Jersey and probably many states as well, I would imagine, on the commercial side, the evictions have lifted or at least the moratorium has lifted. And they're now dealing with the non-payment cases. And I should say on the eviction side for that matter, many times, in most states, I shouldn't say most states, but in many cases, the overwhelming amount are non-payment rent cases.

  There are fore clause or notice cases that exist as well. So many of these moratorium, and I want to point that out in the second. Many, if not all the moratoriums out there are designed to deal with payment of rent. Now, the one thing that's been consistent, and I just talked about the the New York law, the New Jersey law, and Massachusetts enacted a law on April 20th, 2020 which talks about non essential. They kind of went a different way. And they called them non essential evictions under their law. But what they have done is, there have been two major exclusions you need to know about.

  Number one, they've kind of cut... None of these moratoriums apply to commercial. The courts have kind of implemented their own scheme, number one. Number two, they have not dealt with, or they have not barred. Most importantly, your obligation to pay rent, which is a common myth that the tenants misunderstand, they think the moratorium mean I don't have to pay my rent. I'm forgiven. No, you're not. You may not be evicted for that reason, but you're not forgiven. The second thing is, is that they will not for conduct cases. So for example, if it's an assault or property damage, that is not protected by the moratorium as well.

  So what have been these roadblocks besides the moratoriums? Well, one of the things you want to do, and we're doing pretty good on time, folks, we got about another 15 minutes left, and I appreciate your attention as always. One of the things you want to look at, and you want to go back and just keep this in the back of your mind, even though this is a little bit of old news is the CARES Act. And that was something that was signed into law on March 27th, 2020, by President Trump. It stands for the Coronavirus Aid, Relief, and Economic Security Act. You can find that in Title 15, starting at section 9,000... That's nine, zero, zero one, 9,001.

  You want to go back and look at that if you have a property that's subject to that. Now that's on the residential side, will not apply to commercial. Again, on commercial, I'll wrap it up this way. The collection actions have not changed. They are going the way they were before COVID. You bring a breach of contract action. And by the way, residential commercial leases are contracts. You bring a breach of contract action and you get into commercial litigation. So there's really nothing to talk about that's new with handling in the COVID era, the commercial collection. It's pretty much the way it was as it was before.

  Same thing goes with the residential. That has not stopped either. The only thing that has kind of been a little bit careful is you want to make sure your client's not overreaching. You want to make sure they haven't threatened or something along those lines or done anything that may cause you a problem. Go back and look at the CARES Act. And there's really a great, if you would, there's a great law review article, which is for the UCLA law review discourse. You could find that at volume 68 starting at page 146. And it's written by Sarah Schindler and Kellen, which is K- E- L- L- E- N- Zelle. And it talks a lot about the CARES Act, which is always well worth reading. And again, you want to particularly pay attention to 15 USC, if you're doing residential work. 15 USC section 9,058, that's 9-0-5- 8-.

  Okay. In many states like New Jersey, there were also executive orders. And folks, the one thing I want to point out to you that has made this area very, very difficult is we talked about state law. Well, state law now, I mean, let's be honest, in our careers how many people... I'm sure there's going to be someone who's going to say, "Well, I deal with them all the time." I don't and most attorneys I know don't. On the state levels, you've got the legislature you always deal with. And then you're dealing with executive orders, which is now the new flavor of the year. You've got those two sometimes competing or doing the same thing.

  You've got the federal laws doing things. You have federal agencies like the CDC doing the moratorium, which I'm going to get to in one second. And you've also got some federal statutes. The CARES Act is a federal statute, for example, that passed, that could affect across the board. So you want to really look at all these things.

  So I would say also before you bring your client and take a look at executive orders, they sometimes read a little awkwardly, or sometimes they're just not what you're used to reading in a state statute. And don't assume that because you have an executive order, there's not a statute that corresponds to it or vice versa. I think I told you on August 4th, Governor Murphy signed new legislation. On the same day, he signed an executive order. Many people went through the legislation, but not the executive order. The CDC moratorium, now this one is a little bit of a... This is a real sticky wicket because I will tell you, folks, this is something that was enacted. The CDC moratorium became effective essentially September 4th, 2020.

  Now again, the general rule and very, very general. This is residential dealing with nonpayment, not a notice case and it has nothing to do with collections. So for example, it doesn't forgive your rent. The CDC moratorium is really a moving target because if you're getting involved in that, essentially, the idea behind this moratorium was the same thing I talked about with the New Jersey law, which is there's something called a declaration that the tenant fills out and gives to your client. Now, there was litigation last year, I'll provide you the case which actually just came back which was just decided at least another part of it. I'll give you some of the case law which I know Jillian can share with you guys, which talks about the CDC moratorium.

  As you might recall, it had expired in December of 20, and I'm really kind of paraphrasing. It expired in December of '20, and then it was renewed right before that, but after President Biden took office, it was renewed again. And it's about to expire... Well, it's expired and it was just re-extended again by the CDC. Now, there are a number of issues going on with this CDC agency, which my first blush, to be honest with you, when I first read about it, I didn't think the CDC had the power to enact a national moratorium and the latest version, what it originally was, like I said, a moment ago originally had to do with it ff you provide a declaration, everything doesn't stop.

  Now, last year, there was a case and I will have that in your handout so you can take a look at. Last year the Department of Justice representing the CDC said, "Well, we don't think it stops you from filing. We don't think it does anything really to you until you go to actually evict. So you can still file, maybe even do a hearing. You cannot evict. The problem has been, is there's been about five or six, last I recall I stopped counting, I'd say 10 or below decisions, federal decisions, federal district court decisions in the nation whereby the courts have said, "The CDC does not have the power to do this."

  Now, every court has not accepted that. And then what's really bizarre is just through the day. And I'll provide this in your handouts, which you should probably take a look at, which is just decided on August 13th, in the case of Alabama association of realtors versus United States department of health and human services, the judge says, "Yeah, I did say that the CDC, the moratorium couldn't apply, but now my hands are tied. Now I can't enforce a stay." So you're really kind of left scratching your head with the CDC moratorium as to what's going on with it. And it seems to me that what's kind of interesting is every time it's come up for expiration, the last time the US Supreme Court was asked to decide at one of the... if I recall correctly, one of the dissenting opinions was that, well, rather than... not the dissenting, the majority opinion was, "It's going to expire anyway. So we don't need to hear this. It's going to expire in two weeks, so why even bother getting to this?"

  At least that was part of the opinion I had read. And I'll provide that to you as well. I would recommend you take a look at... There's a research source, there's a couple of them out there, but I want to get into somewhat... And by the way, I should mention to you that the thing that was really interesting was the CDC apparently did not have the power to enact this. And there are variety of cases out there, which talk about the ability of the states. I want to go back and just give you some citations here, that talk about the ability to impose the moratoriums, to begin with. And for example, here's one, and I use Westlaw. So hope you do too as well. It's Auracle Homes versus Lamont, which is a district court case, federal district court from Connecticut. And that is 2020 Westlaw 4558686.

  And what the court held there was the moratorium did not violate the due process clause because there were only... because the landlords were only delayed in their ability to initiate evictions. It did not completely forgive them or did not entirely wipe them out. Also take a look at a district court case for Massachusetts, which rejected a claim based on access to the courts in relationship to the eviction moratorium. And again, that's 2020 Westlaw 57515725751572. And finally, I'll which I think is important. This is a 2020 case called Elmsford Apartment Associates versus Cuomo, which is 2020 Westlaw 3498456. Again, that's 2020 Westlaw 3498456. And the state moratorium law there did not violate the right to petition clause because the restrictions were temporary.

  Well, I would argue, "Are they really temporary? I mean, we're still dealing with this stuff 18 months later." And the problem is, generally speaking, many of the courts upheld the moratoriums, to begin with. Now, the CDC moratorium, they keep extending it. Although many courts have said that the government did not have the power, the CDC that is, to enact it. Then you have all these applications for stay, and the main stuff has not been decided. And this is where it becomes really problematic with the clients in litigating these areas and why it's so sensitive and why you really need to do a lot of research or some research before you do this.

  And by the way, I wanted to mention to you guys, just one of the things, if you take a look at, and I'm going to provide, like I said, that Department of Justice indication that and actually does something, which is really important, which is the CDC. I don't know if they're still online or not, but I did have them at one point, the CDC FAQ's, the frequently asked questions on October 9th, 2020 at page 1, docket number 22, it said despite their order, it didn't mean you couldn't file a complaint. So you actually could proceed if you were lucky, your courts were hearing it.

  And what's interesting is I talked to you at the very beginning about how things were different. I can tell you, for example, in Missouri... now, New Jersey doesn't have this, but in Missouri, in the great State of Missouri, in the 16th judicial circuit, they had an order that was entered that actually expounded, that went beyond the CDC and gave the landlord the procedure in which they could challenge the contents of the declaration if the tenant was lying or not. Where am I going with all this? Well, where I'm with all this as this, it's really hard to generalize and say where we're at. The moratoriums have gone on for basically too long. And the answer is that there have been... federal courts have said... I mean, think about what we've got here. We've got federal courts saying the CDC does not have the power.

  We've got some of the states going off in an acting their own procedures, saying, "You can challenge it here in New Jersey. There's no procedure as of yet to challenge this new one. It's not a CDC moratorium, but it all kind of operates just like it with what governor Murphy signed." So you've got stuff all over the place. The caveat I would give you is the CDC moratorium is something you want to be very careful with. I won't get into this. Now I'll only point out to you, the CDC, just like New Jersey's law and I'm sure most states or many states with probably the same provisions check it, is they do come with penalties and rather stiff penalties because they don't want landlords running through stop signs, so to speak, to just start locking people out or proceeding Willy nilly and just not doing anything about it. Some of the main cases what I'm going to do is I'm going to print some of these and give these to Jillian to include in there for you.

  There's a lot of great ring you could really do, but you really have to stay on top of it. So the answer is that what has changed, and what are we doing to navigate? Well, let me kind of sum this up and wrap this up in a little bow for you. Let's get rid of the easy items first. First of all, we talked about collection commercial, no difference. The only difference is going to be if you can actually get into the court and that's jurisdictionally dependent or I should say a venue dependent upon what you could do in your particular state. On the residential, same thing.

  What you need to do is tread lightly on these residential evictions because again, we're reaching a tipping point where this just can't continue, folks. We've been doing this since March of '20. This cannot continue for a couple of years because I know some of my clients will be out of business, and probably some of yours as well. The answer is that the moratorium of what they tried to do to start with, and that kind of held us at bay, the problem is still there. Now it seems to me that in New York and New Jersey, what they're doing for example is they're now providing a tremendous amount of government aid. And again, I'm overgeneralizing tremendously when I say this. They are transferring the obligation to people to apply for assistance. And essentially the government is paying the rent. Now that doesn't mean every penny, it doesn't mean all of it, but that's kind of where we're at.

  What is my best advice in this area and what to do with this? Well, first of all, if I really sit down with all my clients and before they call me, I call them and say, "First of all, no one is allowed to stop paying their rent. Or at least none of these laws have said that, none of them. The Federalist state, none of these laws have said your rent is forgiven. There's a contracts clause issue with that, to begin with." Second of all, we're not going to talk about a client who is... or we're not going to talk about a tenant who's being violent or is committing something that has nothing to do with non-payment of rent. Understand that, you should be proceeding on that." Now, a simple lease violation probably was not going to work, but now it may be something that you could possibly in your jurisdiction address if it's a simple lease violation.

  Here in New Jersey, for example, for a long time, judges didn't want to hear about lease violations. They just didn't want to hear about them. So if it wasn't something extremely property damage or damage to the person, they didn't want to hear about that. So I would say that first things first, proceed with your collection actions, be careful on the residential side because I told you that the Fair Debt Collection Practices Act be very careful of that.

  Also, New Jersey and when some of the CDC stuff, you got to read some of these executive orders and statutes and don't overlook them because there are certain protections given to the residential tenants to make sure they almost get... borrowing from bankruptcy law, "fresh start," where for example, you can't credit report them. You may have to waive certain fees, do not rely on the client to understand this stuff. The laws are getting simply too complicated in these states for them to understand even some of the more basic cases.

  The question is, what do you do with these moratoriums? And again, we're getting to the point where the backlog is getting to be too ridiculous. It's getting to be too much in some states and in New Jersey like I think in some states and for whatever reason, I read in the paper and this, I don't know, I'm speaking just from what I read it, just like you would. A lot of this aid appears that it's not being distributed. Why that is? I don't know. So I've been relatively aggressive in filing my actions with the court. I'm always very careful to maintain due process with the tenant. That goes for other way, other commercial, residential certainly you have to be very upfront and open with the court but don't be afraid to file your applications because I'm telling you, folks, I won't bore you with details on this, but in New Jersey, there have been certain orders from our New Jersey Supreme Court that they may say the court will consider this. The court will consider that.

  I file an application and the clerk's office, the local clerk's office and we have 566 municipalities. Not that many counties. We have, I think... I don't remember exactly how many counties we have in New Jersey, but we have, I think around 30, don't hold me to it, please. Don't lambaste me. I don't have it in front of me, but I might get 30 different interpretations of this order. So again, it's a real touchy-feely situation where you're trying to work virtually. You're trying to maintain contact with the court. This has been the one area and the one time in my career where I would think advisory opinions would be, "Oh my God, I've never seen the need for them or declaratory judgements, but boy, this may be the one time we really, really need these things. So again, the way I would sum this up is, let's go back from the simplest to the hardest on the commercial.

  I would say the collection go full speed ahead. On the collection eviction, you should be going at a relatively good speed. You're not back to 100% yet, but you're certainly past 50%. At least you should be. On the residential or the consumer collection. Go forward. Just check that fair debt collection practices act, then just check your local moratorium if there is one. And also read the CDC order, don't run afoul of these things because they do have penalties. It's the residential evictions, if you will, where you're kind of going through the construction zone and you lower your speed limit, you want to go very carefully because I'm telling you, you want to watch out, particularly in this area of law for class actions, because if you're going or you're representing a multi-family dwelling unit or an apartment building, so to speak, you want to be very careful that you're not doing something I've seen landlords in this state. And I read about landlords in other states that it comes down to a little bit of utility they play with. And the next thing you know, you've got a class action.

  I would say, if you could just get your clients to somehow hold on, you don't want to start worrying about rages' bills. But by the same token, I do think you have to be somewhat aggressive in following these applications. But I think the main thing I would also really, really relate to you and I've been... and listen, folks as lawyers, we struggled to figure out what's going on because we've got the great divergence of the laws between the federal, the state, and sometimes the executive branch getting involved, the courts are implementing their own procedural rules. You're dealing with five rule books, including the federal. And as you can imagine, no one's really talking to one another at times.

  So they may be very, very conflicting. The clients are confused, spend extra time educating them, staying in contact, and keep everything in writing. I cannot tell you how important it is that you do this in any facet. And finally, like I said, with the commercial client, make sure you get that lease and plan on doing something in the four corners of the lease, do not participate unlike a residential, that the law will help you.

  I really want to thank you guys for your time and attention today. I really hope I've helped you. I want to say this much to you. This is a very... first of all, I know this may seem that this is not an easy area to... or may seem like it's an easy area in normal times to practice it. It can be. Many of the cases are non-payment rent and they're contractual actions. It's real simple. You own the rent yes or no. The problem is even the rent cases have become complicated because of all the rules I talked about, of all the protections for the tenants. And plus you're also dealing with the issue of the courts. Some courts being opened, some courts not being open. Some courts are half-open, some courts are half-closed and we're hoping there's not a second wave. Just take your time, do not rush through these cases. Make sure you talk to the client. And if you don't want at the time, or you don't have the ability or the funds don't take the case. But be very, very careful because it's getting complicated.

  And I do think that the restrictions will... they're going to have to loosen up. They cannot continue this long because ultimately in my humble opinion, from what I've seen and talked to with my clients, the moratoriums in some part didn't really do anything. They really hurt them, small, small landlords, and they didn't really do anything. And many times on the business end I had clients call me saying Joe's businesses open and running, and he's not paying his rent. What can I do? Many times there was nothing we can do about it. So I would say, try and really consolidate what you're doing, make sure you pay attention to all these laws. And I'm telling you, folks, it's at least here.

  And like I said, New Jersey is progressive, it's once a week, it's a lot. And you may have everything buttoned down the first week of August, by the end of August, it could be virtually a new set of rules. So just understand all that. Quimbee I'm sure will share my information if I can ever help you with anything, or if it's anything certainly in the state of New Jersey I'd be more than happy to assist any of you. I did not provide forms because a lot of these forms are now being mandated or prepared by the government just to try and streamline this. And unfortunately, one of the outfalls or one of, I should say, one of the fallouts of this whole process is I think as a nation, we were starting to get more uniform in this area. And now unfortunately become fractured because no one knows what they're doing. And everything's being interpreted very differently.

  There's too many open questions. The courts are overburdened. So there's been a lot of confusion. So you got to be patient, you got to be patient with your clients, but your clients have to be patient with you. And they have to understand that unfortunately, something that used to cost $5 now will cost $11,50. There's no way around it folks. Everyone's increasing their prices. So you want to watch the business end on that. So having said that, take a look at some of the materials. It's interesting reading. It certainly is a novel time, and certainly, it's something like none of us have ever seen. So you're having precedent.

  And also the last thing I did want to point out is, and again, I'm only mentioning this because of an example in New Jersey, but in New Jersey, we had an early challenge to some of the legislation. For example, there was executive order that governor Murphy signed that talked about a security deposit that the tenants could notify the landlord even during the lease midstream, and say, "Apply my security deposit to the rent." And the landlords went crazy and there was a major challenge to that. And the question became, could he, under the contracts clause and further legal arguments affect the leases? Well, that lawsuit was filed in March or April of 20, just now the courts are getting to the stuff. They're just not equipped to move that fast.

  So you've got to prepared because again, that's one of the things I've noticed with some of these, like the CDC moratorium, going back to that again, every time there's a challenge, there's almost no time to even hear the challenge. The courts just don't move that fast and you've got to let the client know because you could... I've told my clients, "I may give you advice on Monday and may be wrong on Wednesday. So you got to be prepared for that and roll with the punches." So having said that, I want to thank the fine folks at Quimbee again for having me. I want to thank Jillian so much for being just a great, great, great host, really making me feel very comfortable.

  I could go on about this subject for many, many hours. I'm sure you don't want to hear that. And I really hope that this was beneficial for you. I hope it helped. And I hope you do understand at the end of the day, we're really trying to... this is really a hell of a recipe. I've got about 10 ingredients where normally I'd have one or two at the most. And again, I'm getting the ingredients on the fly on a ticker tape, which is saying, "Do this, do this and do this without much time to think about it."

  So just keep that in the back of your mind. That's what we covered, some really, really general concepts, nothing too heavy-duty, just to kind of give you a little bit to keep your feet wet and to look where you might be going. But certainly, if you're going to get into this area, there's a lot more research to do and you got to be very, very sure of where going because again, these cases are carrying on more often than not. There's more proceedings and just keep your head up. And again, if I could help you, please let me know. I thank you for your time. And I wish you nothing, but the best in your practices. Take care.

  Okay, guys, this is Ken Brazinski. And as you know, we had just completed our... As the final segment, and this is our ad-on. I told you at the very top as the final portion of this discussion, I just got done telling you about the CDC moratorium and no more than a few days passed after that on August 26th, 2021, the US Supreme Court came down in a Per Curiam opinion. And I assume that everyone knows that basically means an entire panel of judges... That's what the word Per Curiam means. Now there were three dissenters, which I'll talk about this in a second. But basically, the US Supreme Court came down with a decision which eradicated and voided the CDC moratorium. So I just got done.

  So let me be clear with you. I just got done telling you about the CDC moratorium and the latest one that was supposed to carry on until October 3rd, which was dealing with a moratorium in areas where there were substantial high levels of COVID-19 transmission. And now I'm here to tell you the US Supreme Court days after we recorded this, turned around and said, "Nope, the whole CDC moratorium is out pending congressional involvement."

  So let's get into this. I just got done telling you about the CDC. And I just got done telling you it was going to expire October 3rd, 2021. Well, as effective... pardon me as effective August 26th, 2021, the US Supreme Court in their decision in Alabama association of realtors which is on the US Supreme Court docket, the docket number is really not going to help us here, but it's going to appear in US 594, but it is it was rendered per curiam on August 26th, 2021. What happened was the court came back and said that the CDC had exceeded its authority in entering into the... in enacting its eviction moratorium for landlords at all.

  So if you might remember earlier, and we talked about this in the general discussion, the CDC had originally said that they had started off with a nationwide moratorium for residential evictions, that was originally enacted. And I'm not going to recover that again here, but it was originally enacted and it was extended. And the laced extension came down through October 3rd, 2021. Now in the latest version, the only change really was, it was made of substance was the CDC moratorium was not enacted on a nationwide basis. Instead, it was only going to apply in areas that were experiencing substantial high levels of COVID transmission.

  So let's go back for a second to June 29th, 2021, ironically, in the same case of Alabama association of realtors versus department of health and human services back on June 29th, 2021, Justice Kavanaugh concurred. And basically, what he said there was, he said that the CDC moratorium came before the court and the court declined to basically do anything with it because, at that time, Justice Kavanaugh said that there were only a few weeks left of the moratorium and they were looking to have more distribution of congressionally appointed rental assistance funds.

  So they kind of felt like let's leave this thing alone. The moratorium is going to expire in a few weeks, and it's just probably not worth the effort. And also we want to see how the funds are distributed. So what happened was after that, the CDC then reimposed their moratorium and it came back before the US Supreme Court. And on August 26th, per Curiam opinion, the court said, "Nope," it came back again. And now this time we're going to strike it down. Now, let me just give you a little bit of a background on this. And if anyone needs a copy of the opinion, I'm going to provide it to Quimbee they can provide it to you, or you can reach out to me directly. Let me just give you some of the salient points and we can go from there.

  The language in the per Curiam... in the majority opinion is pretty harsh. As everyone knows, there are nine judges or nine justices, pardon me on the US Supreme Court, six joined in the per Curiam, and three dissented. We can spend a few moments on the descent, but I'm not really too big on spending time on that. What the majority of the court said was actually pretty harsh as to the CDC moratorium in general as a direct quote, the court said that it strains credulity to believe that the statute would grant the CDC authority, and let's get into the statute.

  The statute is a statute from 1944 that provided the CDC... is what the CDC relied upon to provide this authority to do this moratorium. Now, the court goes on to point out that the CDC decided to act where Congress did not. The Congress had ultimately extended... only once so far in extending the moratorium and the CDC as the court says, as a quote, "Again, took matters into its own hands." They then go on to talk about this statute from 1944, which has been very, very rarely invoked. And they also say that the regulations have been limited to quarantining infected individuals and prohibiting the import and sale of animals known to transmit disease.

  So when we look at this, what the court's saying here is... The overall conclusion is pretty simple. They're saying that we're throwing the CDC moratorium out. If you want to read the opinion you can, the opinion goes on to really be pretty scathing. The majority feels it's difficult to imagine how the CDC would have any authority. It goes on to dissect this statute from 1944. You can read it for yourself. You can draw your own conclusions. I mean, the answer is that the Supreme Court has said, "This will not work." They call it a stretch to maintain that the CDC had any kind of authority. And also, what is interesting, which is a good observation anyways, is that on page six of the opinion, the slip opinion that is, it says the moratorium intrudes... "This is an important point for us. The moratorium, the CDC that is, intrudes into an area that is the particular domain of state law, the landlord-tenant relationship." So again, here's the point we take out of this and you could read the dissenting opinion by Justices Breyer, Sotomayer, and Kagan.

  The bottom line is now we just got done telling you about the moratorium, a moratoria I should say, in the country. And one of them was the CDC, that's now gone. And I must say that I... I guess you could take different positions, but one of the things that had troubled me about the latest CDC was how you were going to come to contemplate and figure out whether or not you had an area that had substantial high levels of transmission. We don't need to worry about that now. Now I just want to make one point out because the day after this appeared in the news, this US Supreme Court decision from August 26, all my clients started to call me saying the moratoriums are all up. No, I just want to clarify this deals with the CDC moratorium, this does not affect the state moratory, which will remain in place. So basically you want to disregard what we said about the CDC or what I said before because now it's been overruled.

  Now, will Congress act? I think if you read the opinion, the procuring opinion, it seems pretty clear that they're anticipating something, to me at least, whatever that's worth. I mean, who knows? But I think Congress will do something either by saying we're not going to act or they will act. I just don't think that it's going to drift off into oblivion. But we are reaching the point where these moratoria are really pushing the limits with landlords. You will see some financial collapse. There's a lot of social factors, a lot of financial factors going on out there, but at the end of the day, let's see what everyone does.

  A lot of the states have started to expire their moratoria. For example, giving you here... I believe New Jersey is one of the outermost. They have extended their moratorium on eviction through January 1st, 2022. Some of the states have been already processing evictions. We're doing some evictions now in New Jersey, and they've done a recent statute, which I did talk about in our discussion, which more or less sunset... which was a sunset provision for getting rid of the moratorium.

  So it's going to be interesting, but the main thing is let's take the federal as of now, out of the question, we're dealing with your individual state, and let's see where it goes. It's a good read though. If you have a few moments to read that Alabama-Association of Realtors opinion from August 26, it gives you a good idea of how the federal government and the federal courts at least are feeling they should kind of stay out of this a little bit. And let's see what the states do with this. So if anyone has any further questions, let me know. Again, I apologize for the inconvenience.

  We were literally done recording a day or two later, and the next thing you know, a new decision came out. And no one thought that... or at least I didn't think that the Supreme court, the US Supreme Court would act as quickly. So I hope we clarified it. I hope I answered all your questions and certainly if anyone else has any questions or any further clarifications, please feel free to bring them to my attention or reach out to me. Thank you again for your attention folks, have a great day.


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