CHAPTER 6: LANDLORD REMEDIES (OTHER THAN EVICTION)
ARTICLE 1. Definitions
LT:6-1.1 Definitions
For purposes of this Chapter:
“Enforcement officer” means a sheriff or special civil part officer.
“Lease” means an agreement setting forth the rights, duties and obligations that govern a tenancy. Reference to “lease” in this Chapter includes a lease, contract or agreement as those terms are used in the common law.
“Personal property” means tangible, movable property, such as goods and chattels.
“Rent” means consideration paid by a tenant to a landlord for rental premises, but may include additional expenses agreed to by the landlord and tenant that do not violate the law.
“Rental premises” or “premises” means real property used or occupied by a tenant in accordance with a written or oral lease and may include one or more rental units as well as areas to be used in common with other tenants.
“Service”, “serve” or “served” means by personal service or commercial courier whose regular business is delivery service, or by regular and certified mail, return receipt requested.
Source: New
COMMENT
A “Definitions” section that contains certain terms used consistently throughout the Title will appear at the beginning of the Title. Terms are defined here for easy reference.
ARTICLE 2. ACTION FOR RENT OR DAMAGES
LT:6-2.1. Action for rent
A landlord to whom rent is due may commence an action for the amount of rent due. The action may be filed simultaneously with, or at any time before or after, an action seeking possession of the rental premises and removal of the tenant, in accordance with LT:5-x.
Source: 2A:42-11; new.
COMMENT
This section continues the substance of its source with some changes in language. Language has also been added to clarify that the suit for rent may be filed before, with, or after commencement of an eviction action, subject to the mandatory joinder provisions of the Rules Governing the Courts of New Jersey in the event a prior action was commenced in the Law Division.
LT:6-2.2. Action for use and occupancy
When a person uses or occupies real property without an agreement with or permission from the landlord, the landlord may commence an action to remove the person from the property and may recover reasonable damages in an action for the value of the use or occupancy. Damages shall be based on the fair value of the use of the real property.
Source: 2A:42-13; new.
COMMENT
This section is derived from the source but deviates from it. Source section 2A:42-13 has been applied to actions against contractual purchasers of property who take possession of but fail to purchase the property, tenants who remain in possession of another’s property after the term or agreement has expired pursuant to a statutory hardship stay, and other defendants who use property without permission from or compensation to the landlord or owner. See, Landlord-Tenant and Related Issues in the Superior Court of New Jersey, Mahlon L. Fast, J.S.C., Ret. (3rd ed. 2008), pp.330-331. The revised provision also may be applied to such actions. However, any reference to an agreement that is not in writing has been eliminated in the revision. The source statute’s concern about parol leases was based upon a statute of frauds that no longer exists.
Language permitting an action to remove the person from the real property has been added. Although derived from the concept of an action for ejectment, this addition is not intended to supersede or preclude a landlord’s action for ejectment under 2A:35-1 et seq.
Case law and the source statute 2A:42-13 imply that the amount of damages should be equal to the fair value of the use of the property. However, the concept of reasonable value should not be restricted to an amount expressed in any agreement.
LT:6-2.3. Action against tenant holding over after giving notice of termination of the lease
When a tenant serves the landlord with written notice of termination of the lease by a date certain and thereafter fails to deliver possession of the premises by that date, the landlord may recover double the rent from the tenant during the time period that the tenant continues to remain in the rental premises after the date provided in the notice.
Source: 2A:42-5.
COMMENT
This section continues the substance of its source with some changes in language. The Appellate Division has held that double rent may be collected under this section’s source statute only for the period that the tenant remains in the premises, even if the tenant is liable for regular rent after the tenant vacates. The tenants’ notice required vacancy by the end of May, but the tenants did not vacate until July 15th. Rent for the months of June and the first half of July were doubled; although rent for the entire month of July was still due, rent for the second half of July was not doubled because the tenants had moved beforehand. See, Lorrill Co. v. Corte, 352 N.J. Super. 433, 438-440 (App. Div. 2002).
Notably, under the source statute, the failure of a tenant to vacate the premises on the date the tenant designates is a basis for a landlord’s action for damages caused by the tenant’s conduct and for double rent, but not “good cause” for eviction under current law. See, Chapman Mobile Homes, Inc. v. Huston, 226 N.J. Super.405 (Law Div. 1988.)
To avoid confusion, the terms “notice to quit”, used in the source statute, have been replaced with the terms “notice of termination of the lease”. Technically, a “notice to quit” the rental premises is a notice served by a landlord upon the tenant (not vice versa), in order for the landlord to terminate the tenancy and regain possession of the rental premises under certain circumstances. Moreover, a tenant may not use this section to terminate the tenancy or to shorten an otherwise longer lease term in violation of the tenant’s lease. For an understanding of the historical interplay of source sections 2A:42-5 and 2A;42-6, note the discussion in 200 Washington St. Corp. v. Beltone Hearing Service, 32 N.J. Super. 81 (Law Div. 1954.)
LT:6-2.4. Action against tenant holding over after warrant of removal
When a tenant deprives the landlord of possession of the rental premises by willful interference with the enforcement officer’s execution of a warrant of removal, or by reentry after the execution of the warrant, the landlord may recover double the annual value of the rental premises from the tenant for the period during which the tenant deprives the landlord of possession of the rental premises.
Source: 2A:42-6.
COMMENT
This section is derived from the source but deviates from it. Since under current law the landlord cannot exercise a self-help remedy by locking out a tenant without a judgment for possession and the execution of a warrant of removal, the source section no longer makes sense. A tenant, in turn, has the right to await the execution of a warrant of removal before vacating the premises. The tenant may also enter into a post-judgment agreement with the landlord. In any case, a penalty for “holding over” no longer has relevance. Instead, the revised statute imposes a penalty upon a tenant who re-enters the rental premises after execution of the warrant or otherwise willfully interferes with the execution of the warrant.
LT:6-2.5. Subtenant’s liability for rent upon notice thereof
When a landlord serves written notice on a subtenant that the landlord has not been paid rent due, the subtenant shall be liable for the rent in an amount not to exceed the amount due from the tenant which is either unpaid at the time the notice is served or thereafter accrues. If only a part of the rental premises are subleased, payment shall be required in an amount proportionate to the total rent agreed to be paid by the tenant.
Source: 2A:42-4.
COMMENT
This section continues the substance of its source with some changes in language.
ARTICLE 3. DISTRAINT
LT:6-3.1. Application
This article shall apply to nonresidential rental premises only.
Source: New
COMMENT
This section is new. The remedy of distraint may only be used for nonresidential rental premises.
LT:6-3.2. Property subject to distraint; apportionable rent
a. A landlord may distrain for rent due within the six months immediately preceding the distraint, the personal property in or upon the rental premises, other than clothing, belonging to a tenant, or, in accordance with LT:6-2.5, belonging to a subtenant.
b. Any person entitled to a portion of the rent that is legally or equitably apportionable between successive owners, landlords or their representatives, may distrain in the same manner as if entitled to the full amount.
Source: 2A:33-1; 2A:33-3; 2A:33-6; 2A:33-7; 2A:33-23.
COMMENT
This section continues the substance of its source sections with some changes in language. Reference to the distraint of straying domestic animals has been omitted from the revision. Reference to the exception from distraint of $500 of the tenant’s personal property now is referred to in proposed LT:6-3.5.The imposition of a penalty for impounding together property distrained at one time (2A:33-2) and the distraint of cattle or other domestic animals found straying and causing damage to property of any person other than their owner (2A:33-4) no longer have relevance and are not included in the revision.
Notably, the Uniform Commercial Code (N.J.S. 2A:9-109) does not apply to a landlord’s lien, other than an agricultural lien. (emphasis added.) An “agricultural lien” is defined at N.J.S. 2A:9-102 (a) (5) as an “interest in farm products: (A) which secures payment or performance of an obligation for . . . (ii) rent on real property leased by a debtor in connection with its farming operation.” The term “farm products” includes crops grown, growing, or to be grown, including, among other things, livestock, born or unborn. Accordingly, references to crops and livestock in the current statute (2A:33-6) have been omitted from the revision.
LT:6-3.3. Time limitations on right to distrain
Rent may be distrained for when it becomes due. If the tenant vacates the rental premises, the distraint shall be made within 30 days after the tenant vacates.
Source: 2A:33-7; 2A:33-8.
COMMENT
This section continues the substance of its source with some changes in language. Even if the landlord is unaware that the tenant has vacated until after the 30 days have expired, the landlord is not without recourse. Any property remaining in the rental premises after that time may be sold in accordance with the provisions regarding abandoned tenant property.
LT:6-3.4. Procedure for seeking distraint; order to show cause
a. Except as provided in subsections (b) and (c), a landlord seeking to distrain a tenant’s property shall proceed in the Superior Court, prior to seizing the property, by an application for an order to show cause supported by a verified complaint or affidavit in accordance with the Rules Governing the Courts of the State of New Jersey. On the return date of the order to show cause, the court shall, in accordance with this article, authorize the distraint and determine the property to be seized and impounded, or grant such other emergent relief as is fair and equitable to the parties, pending a final hearing.
b. A landlord may, without prior judicial approval, distrain property of a tenant that expressly waives due process rights with regard to the property. The waiver may be made in a written lease or other writing signed by the tenant.
c. A landlord who reasonably believes the tenant is likely to remove or destroy the property before judicial approval can be obtained may seize the tenant’s property without a prior court order only if the landlord (i) provides notice of the seizure to the tenant as service of process would be made upon the tenant in accordance with the Rules Governing the Courts of the State of New Jersey and (ii) files notice of the seizure with the court within 48 hours. Upon the tenant’s request, the court, within 10 days after seizure, shall hold a hearing to determine whether an order allowing the landlord to continue to hold the seized property should be entered.
Source: New.
COMMENT
Although current sections 2A:33-5 and 2A:33-9 require or contemplate court intervention in order to distrain, the proposed section is new and should correct the constitutional deficiencies identified by the New Jersey Supreme Court in Callen v. Sherman’s, Inc., 92 N.J. 114 (1983.) Based on R. 4:52-1(a), this new section requires that notice and a hearing occur prior to distraint unless the tenant has waived due process rights or the landlord reasonably fears imminent removal of the personal property.
As supported by Callen, waiver of due process rights is permitted in very limited and well-defined instances. Moreover, the Callen court noted, that “[i]n the extraordinary case, e.g., where the landlord learns that a tenant is loading his goods onto a truck to avoid a just claim, the landlord may still resort to self-help. The need for relief in these circumstances is so compelling that a landlord need not seek judicial approval before availing himself of the statute. A post-deprivation hearing . . . will satisfy the need for due process . . .”(Citations omitted.))
LT:6-3.5. Impound and inventory of distrained property; up to $500 exemption
a. Property that is distrained by court order shall be seized and impounded by an enforcement officer in the county where the rental premises is located. Property that is distrained without court action, in accordance with LT:6-3.4 (b), shall be seized and impounded by the landlord and then maintained and sold in accordance with the lease or this article. Property that is distrained prior to court action, in accordance with LT:6-3.4 (c), shall be seized and impounded by the landlord and thereafter turned over to an enforcement officer in accordance with court order.