January 1, 1900

by Elizabeth K. Holdren

In New Jersey, under the Anti- Eviction Act, a residential tenant may not be refused the ability to have a lease renewed, or be evicted, absent good cause. In fact, the New Jersey Supreme Court has specifically held that foreclosing banks also may not evict a tenant in the property being foreclosed, regardless of whether the tenancy was established before or after the execution of the mortgage, absent good cause. Thus, a tenant may never be evicted unless the tenant violates his obligations under the lease, or the building is removed from the rental housing market. Essentially, a tenant may be a tenant for life if he so chooses; however, there are two exceptions where a residential tenant is not protected by the Act. The first is where the owner of the property occupies the premises where there are not more than two rental units. The other is where a transient guest or seasonal tenant occupies a hotel, motel, or other guest house. In all other situations, the tenant is protected by the Anti-Eviction Act.

Failure to Make Rental Payments

There are sixteen grounds under which a landlord may evict a tenant for "good cause" under the Anti- Eviction Act. A landlord may not evict a tenant unless one of these specific grounds are met, and then only if all of the procedural requirements are followed. The first ground is non-payment of rent. Generally, "rent" is defined as the consideration paid by a tenant for the use or occupancy of the property.good cause. Thus, a tenant may never be evicted unless the tenant violates his obligations under the lease, or the building is removed from the rental housing market. Essentially, a tenant may be a tenant for life if he so chooses; however, there are two exceptions where a residential tenant is not protected by the Act. The first is where the owner of the property occupies the premises where there are not more than two rental units. The other is where a transient guest or seasonal tenant occupies a hotel, motel, or other guest house. In all other situations, the tenant is protected by the Anti-Eviction Act.

Failure to Make Rental Payments

There are sixteen grounds under which a landlord may evict a tenant for "good cause" under the Anti- Eviction Act. A landlord may not evict a tenant unless one of these specific grounds are met, and then only if all of the procedural requirements are followed. The first ground is non-payment of rent. Generally, "rent" is defined as the consideration paid by a tenant for the use or occupancy of the property.

However, the parties may also agree as to what charges constitute rent. In this regard, expenses such as late charges, charges for bounced checks, filing and service costs for court, and counsel fees can sometimes be pursued, provided that they are characterized as "additional rent" in the lease. Also, a judgment will not be entered, allowing the landlord to evict the tenant, if the tenant pays all of the rent due and owing prior to the close of business on the court date.

A tenant may also be evicted for failure to pay rent after the tenant was provided with a valid notice of an increase. Here, the landlord must assure that the increase is not unconscionable, and that it complies with all rent control laws. A related cause to evict arises when a tenant habitually pays his rent late. A finding of habitual late payment of rent requires the tenant to have made at least two late payments following service of the appropriate notice upon the tenant. A landlord may also evict a tenant who refuses reasonable changes in the terms and conditions of the lease at the end of its term, including a reasonable increase in rent.

Additionally, a landlord may bring an action to evict a tenant who is considered disorderly. This action typically involves noise or other conduct disturbing to the peace and quiet of other tenants. Also, if a tenant causes or allows damage to the property, he may be evicted.

In the event there is a substantial violation of the reasonable rules and regulations of the landlord, he may bring an action to evict the tenant. Landlords should be aware, however, that there are 5 defenses to this cause of action: (1) there was no written warning from the landlord to the tenant; (2) the tenant's violation was not substantial; (3) the rules and regulations of the landlord are unreasonable; (4) the rules and regulations were not accepted in writing by the tenant or made part of the lease; and (5) the landlord is barred from asserting the breach by virtue of his accepting the rent with knowledge of the breach. If the tenant shows any one of these defenses, the court will not allow the eviction. Similarly, a cause to evict arises when there is a substantial violation of a reasonable covenant in the lease by the tenant.

A landlord may bring an action to evict a tenant where the landlord seeks to abate housing, health code, or zoning violations in the premises. This situation arises when the landlord has been cited by the local or state housing inspectors, and the landlord: (1) seeks to permanently board up or demolish the premises because there are substantial violations affecting the health and safety of tenants, and it is economically unfeasible to eliminate the violations; (2) the landlord cannot feasibly eliminate substantial violations affecting the health and safety of tenants without removing the tenant; (3) the landlord seeks to eliminate an illegal occupancy which cannot be corrected without removing the tenant; or (4) if a governmental agency seeks to retire the premises for urban renewal or land clearance in blighted areas.

Change In Use of Property

A landlord, who wishes to permanently retire a building from residential use, may evict the tenants for that reason. However, the landlord must retire the entire building from all residential uses and also send proper notices to the tenants. A landlord may also bring an action to evict a tenant where the landlord is converting the property from a rental market to a condominium or cooperative. Again, to qualify for this ground, the landlord must comply with certain notice requirements and also a number of statutes.

A landlord can evict a tenant if the landlord owns three units or less and he seeks to occupy the unit; or if he has contracted to sell the unit to a buyer who wishes to personally occupy it, and the contract calls for the unit to be vacant at the time of closing. A tenant is also subject to eviction if he occupies the premises by reason of employment as a janitor, superintendent, or some other capacity and the employment is being terminated.

Legal Violations

Tenants who violate certain laws may be evicted solely due to that fact. Generally, a landlord may evict a tenant if the tenant has been convicted of, or pleaded guilty to, a drug offense. However, this section applies only if the conduct of the tenant is performed within or upon the leased premises or the rental complex. Also, if the tenant successfully completes or has been admitted to and is currently completing a drug rehabilitation program while on probation, he may not be evicted based upon this cause. This section also applies to tenants who knowingly harbor a person who has been convicted or so pleaded unless that person is a juvenile.

Another cause which is brought about by the violation of a law by the tenant occurs when a tenant has been convicted of or has pleaded guilty to an offense involving an assault or terroristic threat against the landlord, a member of the landlord's family, or an employee or agent of the landlord. This section also applies to tenants who knowingly harbor such a person.

Finally, a landlord may also bring an action to evict a tenant where the tenant has been found, by a preponderance of the evidence, liable in a civil action for violation of what would have been an offense under the "Comprehensive Drug Reform Act of 1987". This section allows for the removal of a tenant without the need for a guilty verdict or plea in criminal court of a drug offense.

Under each of the stated grounds, all procedural requirements must be met to successfully remove a tenant. Furthermore, all of the grounds for eviction, except non-payment of rent, require service of at least one notice upon the tenant. These notices are required to be in a specific form and require different time periods to lapse before the commencement of the action. Also, some grounds require a preliminary notice, called a "Notice To Cease" to be served upon the tenant.

As demonstrated above, the removal of a tenant in New Jersey is no longer a simple process. To ensure that you are entitled to evict a tenant and to ensure that all procedural requirements are satisfied, it is recommended that you consult with an attorney.

Elizabeth K. Holdren is an associate of Hill Wallack where she is a member of the Real Estate Division and Creditors' Rights/Bankruptcy Practice Group.