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Wednesday, April 20, 2022

Eviction Notice Time periods NJ

 Eviction Notice Time periods NJ

 

Types of New Jersey Eviction Notices

Each possible ground for eviction has its own notice type. Some notices allow the tenant to fix (“cure”) the issue and continue the tenancy, while others simply state an amount of time to vacate.

Grounds

Time

Curable?

Unpaid Rent

30-Day

No

Lease Violation

30-Day

Yes

Lease Termination

7/30/90-Day

No

Disorderly Conduct

3-Day

No

Negligence/Property Damage

3-Day

No

Housing Violations

3-Months

No

Discontinuance of Use of Rental Property

18-Months

No

Failure to Accept Changes

1-Month

No

Condominium Conversion

3-Years

No

Personal Use/Sale of Rental Property

2-Months

No

Termination of Employment

3-Day

No

Illegal Activity

3-Day

No

Source https://ipropertymanagement.com/templates/new-jersey-eviction-notice-form

GROUNDS FOR EVICTION 

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a. Failure to Pay Rent 

If a tenant fails to pay rent, the landlord may immediately take legal action to have the tenant evicted. The landlord is not required to give the tenant notice before filing an eviction suit, except if the tenant resides in federally subsidized housing. If the tenant resides in federally subsidized housing a 14-day notice must be given before filing a suit for eviction. 

Note: A tenant may not be evicted for nonpayment of rent, if the tenant used the unpaid portion of rent to continue utility services to the rental premises after receiving notice that the services were in danger of being discontinued, and if the landlord was responsible for the payment of those utility services and did not make the payments required to retain the use of those services. These utilities include: electric, gas, water and sewer. The money used to pay for the continuance of those services shall be considered part of the rent payment. 

b. Disorderly Conduct Eviction NJ

If after given written Notice to Cease disorderly conduct, the tenant continues the disorderly conduct and that conduct destroys the peace and quiet of the other tenants living in the house or neighborhood, the landlord may file a suit for eviction. A Notice to Quit must be served on the tenant at least three days prior to filing a suit for eviction. 

 Disorderly conduct that disturbs other tenants

 Notices required:

  • Notice to cease
  • Notice to quit must be served on the tenant at least three days before filing an eviction suit.

Comments:

  • Notice to cease must specifically and in detail describe the disorderly conduct and demand that the tenant stop it or face eviction. Cite: A.P. Development Corp. v. Band, 113 N.J. 485 (1988). The notice must also tell you that if you stop the disorderly conduct, then you won’t be evicted. Cite: RWB Newton Assoc. v. Gunn, 224 N.J. Super. 704 (App. Div. 1988). 
  • Disorderly conduct must then continue after the notice to cease for the tenant to be evicted.

c. Damage or destruction of the landlord’s property 

Notices required:

  • Notice to quit must be served on the tenant at least three days before filing the eviction suit.

Comments:

  • The tenant’s conduct that causes the damage must be intentional or grossly negligent. (You can’t be evicted because of damage caused by a simple accident or mistake on your part.) Cite: Korman Suites v. Kelsch Assoc., 372 NJ Super 161 (L.aw Div. 2004)

Alterations made without the landlord’s consent/authorization can be deemed as damage, even if the alterations are an improvement.

Source https://www.lsnjlaw.org/Housing/Landlord-Tenant/Evictions/Pages/Right-Court-Process.aspx#b

 

Eviction Process for Disorderly Conduct

A tenant can be evicted in New Jersey for being “disorderly” to the point that other tenants’ peaceable enjoyment of the rental property is ruined. This can even extend to peaceable enjoyment of anyone else living in the neighborhood, even if they don’t live on the rental property.

Tenants must first be given a written Notice to Cease, warning them to stop the behavior, before the landlord can give them a Notice to Quit.

If the tenant continues to be “disorderly” after receiving the Notice to Cease, the landlord must provide the tenant with a 3-Day Notice to Quit, giving the tenant three days  [5]to move out of the rental unit in order to avoid eviction.

If the tenant remains on the property after the notice period expires, the landlord may proceed with the eviction process.

 

c. Damage or Destruction to the Property 

The tenant may be evicted if he has intentionally or by reason of gross negligence caused or allowed destruction, damage or injury to the property. A Notice to Quit must be served on the tenant at least three days prior to filing a suit for eviction. 

d. Substantial Violation or Breach of the Landlord’s Rules and Regulations 

If after given a written Notice to Cease violating or breaching reasonable rules and regulations contained in the lease or accepted in writing by the tenant, the tenant continues to substantially violate or breach the rules and regulations, the landlord may file a suit for eviction. A Notice to Quit must be served on the tenant at least one month prior to filing the suit for eviction. In addition, any notices must be given on or before the start of a new month. 

e. Violation or Breach of Covenants or Agreements Contained in the Lease 

1.   1)  If the tenant continues to substantially violate or breach the reasonable covenants or agreements contained in the lease, after given written Notice to Cease violating or breaching those covenants or agreements and if the landlord has reserved a right of re-entry in the lease, the landlord may file a suit for eviction. A Notice to Quit must be served on the tenant at 

least one month prior to filing the suit for eviction. 

2.   2)  In public housing, if the tenant has substantially violated or breached any of the covenants or agreements contained in the lease, pertaining to illegal uses of controlled dangerous substances, or other illegal activities, the landlord may file a suit for eviction. The covenant or agreement must conform to federal guidelines and must have been in effect at the beginning of the lease term. The landlord does not have to give Notice to Cease the illegal activity before filing for a Notice to Quit. A Notice to Quit must be served on the tenant in accordance with federal regulations pertaining to public housing. 

Note: A public housing authority may evict a tenant when a member of the tenant’s household or guest engages in drug-related activity, even if the tenant did not know of the drug related activity. Dept. of Housing and Urban Development v. Rucker, 122 S.Ct. 1230 (2002). 

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f. Failure to Pay Rent Increase 

If a tenant fails to pay rent after being given notice of a rent increase and a Notice to Quit, the landlord may file a suit for eviction. The rent increase must not be unconscionable and must comply with all other laws or municipal ordinances, including rent control. A Notice to Quit must be served on the tenant at least one month prior to filing the suit for eviction. 

Note: If the tenant believes the rent increase is unconscionable, he may withhold a portion of the rent. He may withhold the difference between the old rent rate and the new increased rate. However, the landlord may file a suit for eviction and the court would determine if the rent increase is unconscionable. 

g. Health and Safety Violation or Removal from the Rental Market 

A tenant may be evicted if the following conditions apply: 

1.   1)  The landlord has been cited by an inspector and needs to board up or demolish the property because of substantial health and safety violations and because it is financially difficult to fix the violations. 

2.   2)  The landlord needs to fix health and safety violations and it is not possible to do so, while the tenant resides at the property. When the landlord serves the eviction notice he must also notify the Department of Community Affairs, Landlord-Tenant Information Service, P.O. Box 805, Trenton, New Jersey 08635-0805. In addition, upon request, the landlord must provide the Department of Community Affairs with information as required under the law, so that the Department may prepare a report informing all parties and the court of the feasibility of the landlord to fix the violations without removing the tenants from the property. 

3.   3)  The landlord needs to correct an illegal occupancy and it is not possible to correct this violation without removing the tenant. 

4.   4)  A governmental agency wants to permanently take the property off the rental market, so that it can redevelop or clear land in a blighted area. 

A Notice to Quit must be served on the tenant at least three months before filing a suit for eviction. The tenant can’t be evicted until relocation assistance is provided. 

Note: Tenants evicted under this cause may be eligible for financial and other assistance for relocation. If eligible, this assistance must be provided before the tenant can be evicted. Information on relocation assistance can be obtained from the Relocation Assistance Program of the Division of Codes and Standards, P.O. Box 802, Trenton, New Jersey 08625-0806, (609) 984- 7609. 

Any tenant evicted under g. 3) (illegal occupancy) is entitled to relocation assistance in an amount equal to six times the tenant’s monthly rent. The landlord is responsible for paying the tenant’s relocation expenses. Any tenant who does not receive the required payment from the landlord at least five days prior to his or her removal from the premises, may receive payment from a revolving relocation assistance fund established by the municipality. The landlord will be required to repay the money to the municipality. (Pursuant to N.J.S.A. 2A:18-61.1g.) 

However, if the municipality has not established a relocation assistance fund, and the landlord does not pay the relocation funds within the required time, interest will accrue on the unpaid balance at the rate of 18% per year until the amount due, including interest is paid in full to the tenant. The amount due to the tenant is a lien on the property. The tenant may file a lien statement with the county clerk or registrar in order to enforce the lien. (Pursuant to N.J.S.A. 2A:18-61.1h.) 

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h. The Landlord Wants to Permanently Retire the Property from Residential Use 

If the landlord wants to permanently retire a building or mobile home park from residential use, provided the circumstances covered under section (g) above do not apply, the landlord may file suit for eviction. A Notice to Quit must be served on the tenant at least 18 months prior to filing the suit for eviction. No legal action may be taken until the lease expires. 

i. Refusal to Accept Reasonable Changes in the Terms and Conditions of the Lease 

When the lease expires, the landlord may propose reasonable but substantial changes to the terms and conditions of the lease. If after written notice the tenant refuses to accept those changes the landlord may file suit for eviction and the court will determine if the proposed changes are reasonable. In cases where a tenant has received a notice of termination on any of the grounds listed in section (k) below, has a protected tenancy status pursuant to the “Senior Citizens and Disabled Protected Tenancy Act,” or pursuant to the “Tenant Protection Act of 1992,” the landlord or owner shall have the burden of proving that any changes in the terms and conditions of the lease, rental or regulations are reasonable and does not substantially reduce the rights and privileges that the tenant was entitled to prior to the conversion. A Notice to Quit must be served on the tenant at least one month before filing suit for eviction. 

Note: The Senior Citizens and Disabled Protected Tenancy Act protects qualifying tenants from changes in the terms of the tenancy or rent increases, which rests solely on the landlord’s decision to convert the rental premises. 

j. Tenant Continuously Fails to Pay Rent or Habitually Pays Late 

If the tenant continuously fails to pay rent or habitually pays late, after written Notice to Cease, the landlord may file a suit for eviction. A Notice to Quit must be served on the tenant at least one month before filing a suit for eviction. 

Note: The Courts have ruled that habitual late payments means more than one (1) late payment following the Notice to Cease. Also the N.J. Supreme Court ruled that a landlord after giving a tenant a notice to cease late payments, must continue to give the tenant reasonable and sufficient notice when accepting further late payments, that continued late payments from the tenant would result in an eviction action. If the landlord does not give this continued notice, the original Notice to Cease given to the tenant may be considered waived by the Court. 

k. Conversion to Condominium, Cooperative or Fee Simple Ownership 

If the landlord or owner of a building or mobile home park is converting the property from the rental market to a condominium, cooperative or fee simple ownership of two or more dwelling units or park sites, except as hereinafter provided in subsection (l) below, the landlord may file a suit for eviction. The landlord must comply with the regulations governing conversion to condominiums and cooperatives, before a warrant for possession shall be issued. Up to five one-year stays if eviction shall be granted by the court if the tenant has not been offered a reasonable opportunity to examine and rent comparable housing. However, not more than one-year stay shall be granted if the landlord allows the tenant five months’ free rent as compensation for hardship in relocation. No action for possession shall be brought against a senior citizen tenant or disabled tenant with protected tenancy status pursuant to the “Senior Citizens and Disabled Protected Tenancy Act of 1992,” as long as the agency has not terminated the protected tenancy status or the protected tenancy period has not expired. A Notice to Quit must be served on the tenant at least three years before filing a suit for eviction. No legal action may be taken until the lease expires. 

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l. Tenancy After Conversion to Condominium, Cooperative or Fee Simple Ownership 

1.   1)  The landlord may file for eviction, if the owner of a building or mobile home park, which is constructed as or being converted to a condominium, cooperative or fee simple ownership, seeks to evict a tenant or sublessee whose initial tenancy began after the master deed, agreement establishing the cooperative or subdivision plat was recorded, because the owner has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing. However, no action shall be brought against a tenant under paragraph one (1) of this subsection unless the tenant was given a statement, informing the tenant that the property is being converted. A Notice to Quit must be served on the tenant at least two months prior to filing suit for eviction. No legal 

action may be taken until the lease expires. 

2.   2)  The landlord may file for eviction, if the owner of three or less condominium or cooperative units seeks to evict a tenant whose initial tenancy began, by rental, after the master deed or agreement establishing the cooperative was recorded, because the owner seeks to personally occupy the unit, or has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing. A Notice to Quit must be served on the Tenant at least two months prior to filing suit for eviction. No legal action may be taken until the lease expires. 

3.   3)  The landlord may file for eviction, if the owner of a building with three residential units or less seeks to personally occupy a unit, or has contracted to sell the residential unit to a buyer who wishes to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing. A Notice to Quit must be served on the Tenant at least two months prior to filing suit for eviction. No legal action may be taken until the lease expires. 

m. Tenancy Based on Employment 

If a tenant resides in the property on the condition that, he is employed by the landlord as a superintendent, janitor or in some other job and that employment is terminated the landlord may file suit for eviction. A Notice to Quit must be served on the tenant three days prior to filing a suit for eviction. 

n. Conviction of a Drug Offense Committed on the Property 

The landlord may file suit for eviction, if the tenant, including juveniles who have been found by the Court to be delinquent, has been convicted of or pleaded guilty to drug offenses that took place on the property, and has not in connection with his sentence either (1) successfully completed or (2) been admitted to and continues during probation participation toward completion of a drug rehabilitation program. Also, if the tenant lets a person who has been convicted of or pleaded guilty to drug offenses, occupy the premises for residential purposes whether it is continuously or occasionally, the landlord may file for eviction. This does not apply to a tenant allowing a juvenile to reside at the property where the juvenile has been found to be delinquent due to use or possession of drugs. No eviction suit may be brought more than two years after: the juvenile was found to be delinquent; conviction of the person; or after the person’s release from incarceration whichever is later. A Notice to Quit must be served on the tenant at least three days prior to filing suit for eviction. 

o. Conviction of Assaulting or Threatening the Landlord, His Family or Employees 

The landlord may file for eviction, if the tenant has been convicted of or pleaded guilty to, or if a juvenile has been found by the court to be delinquent due to an offense involving assault or terrorist threats against the landlord, a member of the landlord’s family or an employee of the landlord. Also, if the tenant permits a person he knows has been convicted of or has pleaded guilty to these 

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actions to reside at the premises continuously or occasionally, the landlord may file suit for eviction. 

No eviction suit may be brought more than two years after: the juvenile was found to be delinquent; conviction of the person; or after the person’s release from incarceration whichever is later. A Notice to Quit must be served on the tenant at least three days prior to filing a suit for eviction. 

p. Civil Court Action that Holds Tenant Liable for Involvement in Criminal Activities 

The landlord may file for eviction, if the tenant is found by a civil court proceeding (not criminal) to be liable for involvement in theft of property located on the premises, involvement in assaults or terrorist threats against the landlord, a member of the landlord’s family or an employee of the landlord, or involvement in illegal drug activities that takes place on the premises and that tenant has not in connection with his sentence for the drug offense either (1) successfully completed or (2) been admitted to and continues during probation participation towards completion of a drug rehabilitation program. Also, if the tenant permits a person he knows has been convicted of or has pleaded guilty to these actions, to reside at the premises continuously or occasionally, the landlord may file for eviction. This does not apply to a tenant allowing a juvenile to reside at the property where the juvenile has been found to be delinquent due to the use or possession of drugs. No eviction suit may be brought more than two years after: the juvenile was found to be delinquent; conviction of the person; or after the person’s release from incarceration whichever is later. A Notice to Quit must be served on the tenant at least three days prior to filing suit for eviction. 

q. Conviction for Theft of Property 

The landlord may file for eviction, if the tenant has been convicted of or pleaded guilty to, or if a juvenile has been found to be delinquent by the Court due to an offense involving theft of property from the landlord or from tenants residing in the same building or complex. Also, if the tenant permits a person he knows has been convicted of or has pleaded guilty to these actions to reside at the premises continuously or occasionally, the landlord may file for eviction. A Notice to Quit must be served on the tenant at least three days prior to filing suit for eviction. 

EVICTIONS FOR OWNER-OCCUPIED TWO AND THREE FAMILY DWELLINGS 

In addition to the causes listed above, a tenant residing in an owner-occupied two or three family dwelling may be evicted if the landlord can show that the tenant is staying after the expiration of the lease and the landlord has given the tenant a written notice for delivery of possession of the property. Under this cause of not renewing the lease, a three month notice to quit must be given if an at will tenancy or year-to year tenancy exists. A one-month notice to quit is required for a month-to-month tenancy. 

SELF-HELP EVICTIONS OR LOCKOUT 

Self-help evictions occur when the landlord or someone acting on the landlord’s behalf enters into the dwelling unit without the permission of the tenant and without a judgment from the Court and forces the tenant to move. A lockout occurs when the landlord padlocks your door or changes your locks while you are not home and then refuses to allow you back into the premises. A lockout is also when the landlord shuts off the utilities in attempt to force you to move. Self-help evictions or lockouts made by the landlord are illegal in New Jersey. 

If a landlord attempts a self-help eviction or lockout, the tenant should call the police. If the landlord refuses to allow the tenant back into the premises after the police have warned the landlord about the illegal procedure, the landlord may be charged with a disorderly person’s offense. Only a judge can order a legal eviction. 

Source

https://www.nj.gov/dca/divisions/codes/publications/pdf_lti/grnds_for_evicti_bulltin.pdf

 

 

Landlord/Tenant Laws:

There are two New Jersey statutes that apply to eviction cases. The laws differ on when and why a renter can be evicted.

See N.J.S.A. 2A:18-53 for commercial tenants (not homes) and for residential properties with no more than two rental units (such as a two-family home, or a three-family home if the landlord also lives in one of the units).

N.J.S.A. 2A:18-61.1 et. seq. applies to all other residential tenants, except for hotels, motels and seasonal renters.

 Eviction Bill-Services   Kenneth Vercammen & Associates

  1. Prepare Complaint Landlord/Tenant. Add amount unpaid, late fees and costs
  2. Fill out the form Tenancy Summons.

Prepare Letter to court to File Complaint

 

Tenancy Division

PO Box 1146

New Brunswick, NJ 08903-1146 

 

    Hand deliver Tenancy Eviction complaint to courthouse at 56 Paterson St., New Brunswick, NJ 08901. 

Review Complaint, summons Court hearing notice and supporting documents,

Travel to Middlesex County Courthouse

Spoke with client

Attendance at Judge mandatory opening statement, attendance at calendar call/hearing, sign eviction paperwork

Meeting with client

LANDLORDS - EVICTING TENANTS FOR NON-PAYMENT OF RENT

Eviction suit legal Fee $2,000 payable Vercammen & Assoc PC, 

You must also pay the court costs by check payable Treasurer, State of NJ.   [Between $ 65- $85]

 Fees do not include post judgment fees or services or proceeding with a Warrant for Removal

         This does not include handle filing of a separate suit for money owed in Superior Court. Our up front fee for other litigation is $5,000. Sometimes it is not cost effective to spend thousands of additional dollars to chase a deadbeat tenant.


                         By Kenneth A. Vercammen  Esq

         This article will briefly explore certain remedies and recommendations to landlords. Unlike big apartment complexes, many landlords in New Jersey do not have full time management companies handling the collection of rent. Yet all landlords should handle their payments as a business, just as big corporate landlords. More info at http://www.njlaws.com/landlords-eviciting_tenants_for_nonpayment.htm

WRITTEN LEASE

         A  written lease is recommended for all rentals even for a month to month. Your lease should specifically require that the tenant pay the landlord's attorney's fees if they fail to pay rent or breach the lease in any way. If a written lease does not provide for attorneys fees, the court cannot award attorneys fees. In addition, your lease should provide in writing for re-renting cost if the tenant breaches the lease. Many leases also provide for late fees.

NON-PAYMENT OF RENT

         If your tenant fails to pay and you want to evict the tenant, a Tenancy Summons Dispossess Eviction Complaint must be filed in the Supreme Court's Special Civil Part.  The court-filing fee is less than $50. Different attorneys charge different fees depending upon the amount of work to be done. Your attorney can prepare the mandatory complaint and summons.

         The court constable is required to personally serve the tenant with a copy of the complaint. The court clerk will fill out the date and time for hearing on the summons, which also will be served on the tenant.

         You and your attorney should appear on the date for hearing. If  the tenant appears, parties sometimes work out a payment plan for rent with a stipulation of settlement and stay of eviction. The landlord and tenant usually agree if all rent is not paid according to the schedule, the court is directed to issue a warrant for possession.

FAILURE OF TENANT TO APPEAR

         If the tenant fails to appear by the second call, you can pay an additional fee for a warrant of removal. This is obtained at the Special Civil Part Clerk, Tenancy Section Office. After waiting three days, the constable is given the warrant to serve at the tenant's property. If the tenant still fails to move, arrangements can be made with the constable and locksmith to physically remove the tenants and change locks.

REGISTRATION OF PROPERTY

         Most residential units most be registered with the town. It is a good idea to bring proof of registration when you go to court.

FILE A SPECIAL CIVIL PART COMPLAINT FOR MONEY OWED

         Most eviction complaints are evictions based only on non-payment of rent.  The New Jersey Anti-Eviction Act places substantial notice requirement on landlords who wish to evict tenants for reasons other than non-payment of rent. If the tenant is able to pay the rent in full prior to warrant of possession, the court will let the tenant remain in the property.

HOW TO GET YOUR MONEY- You must file a separate lawsuit in the Special Civil Part

         The Tenancy Judge will not require the tenant to pay attorneys fees, damages and other costs. This court can only evict tenants, or permit tenants to remain if they paid the rent in full. To protect yourself and get all money due, file a money owed complaint in the Special Civil Part. The filing fee is $75.00 plus postage

 

 KENNETH  VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

  (Phone) 732-572-0500

Wednesday, April 13, 2022

Civil cases default judgment can be obtained against a party who has failed to respond

  

   A default judgment can be obtained against a party who has failed to respond, i.e., “plead”, or whose pleading has been stricken by the court and against whom default has been entered. Application may be made after entry of default judgment to vacate or void the judgment. According to R. 4:43-2, default judgment can be entered in the following ways: · by the clerk, if the plaintiff’s claim is for a sum certain or for a sum which can by computation be made certain, and ·in such cases, a valid affidavit of proof must be filed; and · in all other cases, by the court, on notice of motion, after a proof hearing is held. 

 

In addition, pursuant to the Servicemembers’ Civil Relief Act (SCRA) 50 U.S.C. § 521, its New Jersey counterpart, N.J.S.A. 38:23C-4, and R. 1:5-7, an affidavit of nonmilitary service must be filed with any application for default judgment. 12-2 Updated as of April 1, 2007 It should be noted that the entry of default and default judgment cannot be done simultaneously in the Civil Part. 

Default must be entered and the defaulted party provided with notice of the entry before a default judgment may be sought and entered. See R. 4:43-2. Rule 4:43-2(b) was recently amended to require that applications for entry of default judgment be brought by notice of motion. Attorneys must make a motion with the relief sought being an order scheduling the proof hearing on a selected date. On the return date of the motion, if no opposition is filed, the motion presumably would be granted on the papers, an order signed and served at the same address as the motion, and the proof hearing would take place on the date specified in the order (not a motion day, but a date convenient to the court and the moving party). If opposition is filed, the court will address it on the return date and, if the opposition is unfounded, will schedule the proof hearing date, advise the parties of the date on the record, and also put the date in the order.

 

Monday, March 28, 2022

State bar on eviction does not apply mot ejectment actions- 4 Highpoint LLC v. Durelli Defendants appealed an order granting possession a residential property in an ejectment action.

  State bar on eviction does not apply mot ejectment actions-

4 Highpoint LLC v. Durelli

Defendants appealed an order granting possession a residential property in an ejectment action.

  • Case Number: a0949-20_011222


Defendants appealed an order granting possession a residential property in an ejectment action. Defendants owned the house before a mortgage foreclosure in 2018. Mortgagee purchased the property and obtained a writ of possession in January 2019 but did not execute the writ and sold the property to plaintiff in September 2020. Plaintiff knew the property was occupied and that EO 106, a moratorium against removal of evicted tenants and foreclosed owners, was in effect. Plaintiff's efforts to come to an agreement with defendants failed and plaintiff instituted ejectment proceedings. Trial court found EO 106 was not meant to "protect trespassers and criminal activity," found that based on defendants' testimony, they were trying to stay in the property "to wear it out to uselessness" and held lockout was necessary in the interests of justice. Defendants' motion to stay the lockout was denied. They appealed arguing their removal was contrary to EO 106. Court noted the moratorium in EO 106 had expired and defendants' appeal was moot because there was no reason to restore their possession of the property. Additionally, trial court properly found that EO 106 did not apply to ejectment actions. EO 106 only barred removals of individuals in legal possession of the property and did not apply to squatters. source https://www.law.com/njlawjournal/almID/1642019742NJa0949200/

Sunday, January 16, 2022

RULE 2:11. ARGUMENT; DETERMINATION; COSTS; REHEARING 2:11-1. Appellate Calendar; Oral Argument

 RULE 2:11. ARGUMENT; DETERMINATION; COSTS; REHEARING 2:11-1. Appellate Calendar; Oral Argument

(a) Calendar. The clerk of the appellate court shall enter all appeals upon a docket in chronological order and, except for appeals on leave granted or from orders compelling or denying arbitration which shall be entitled to a preference, cases shall be argued or submitted for consideration without argument in the order of perfection, insofar as practicable, unless the court otherwise directs with respect to a category of cases or unless the court enters an order of acceleration as to a particular appeal on its own or a party’s motion.

(b) Oral Argument.

(1) n the Supreme Court, appeals shall be argued orally unless the court dispenses with argument.

(2) In the Appellate Division, appeals shall be submitted for consideration without argument, unless argument is requested by one of the parties within 14 days after service of the respondent’s brief or is ordered by the court. Such request shall be made by a separate captioned paper filed with the Clerk in duplicate. The clerk shall notify counsel of the assigned argument date. If one of the parties has filed a timely request for oral argument, the other parties may rely upon that request and need not file their own separate requests for argument. A party may withdraw its request for oral argument only if it has the consent to do so from all other parties participating in the appeal.

(3) Counsel shall not be permitted to argue for a party who has neither filed a brief nor joined in another party’s brief. The appellant shall be entitled to open and conclude argument. An appeal and cross appeal shall be argued together, the party first appealing being entitled to open and conclude, unless the court otherwise orders. Unless the court determines more time is necessary, each party will be allowed 30 minutes for argument in the Supreme Court and 15 minutes in the Appellate Division, but the court may terminate the argument at any time it deems the issues adequately argued. No more than two attorneys will be heard for each party in the Appellate Division, and one attorney will be heard for each party in the Supreme Court, unless the Court otherwise orders. An attorney will not be permitted to read at length from the briefs, appendices, transcripts or decision.

Thursday, January 13, 2022

Plaintiffs did not waiver right to seek court rather than arb JIMMY SEESE and MIRAN SEESE, Plaintiffs-Appellants, v. JOHN LOGRASSO

Plaintiffs did not waiver right to seek court rather than arb

JIMMY SEESE and MIRAN SEESE, 

Plaintiffs-Appellants, v. 

JOHN LOGRASSO, a/k/a GIOVANNI LOGRASSO, individually and doing business
as LG4 GROUP, LG4 GROUP, Inc., MUNAFO DESIGN, LLC, and JACOB SOLOMON RA, AIA, 

Defendants-Respondents. _____________________________ 

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1378-20 

Submitted November 1, 2021 – Decided December 22, 2021 Before Judges Sumners and Firko. 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3529-20. 

 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. 

Plaintiffs Jimmy Seese and Miran Seese appeal the motion judge's order 

granting defendants John LoGrasso a/k/a Giovanni LoGrasso and LG4 Group Inc.'s motion to compel arbitration and dismissing plaintiffs' complaint. Plaintiffs alleged defendants committed fraud and were negligent in fulfilling the terms of the parties' written agreement in which defendants were hired to demolish plaintiffs' old house and construct them a new house. We reverse because the agreement failed to put plaintiffs on notice, as required by Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014), that they were waiving their right to resolve their disputes in the trial court in favor of arbitration. 

"The Federal Arbitration Act (FAA), 9 [U.S.C.] §§ 1-16, and the nearly identical New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -32, enunciate federal and state policies favoring arbitration." Atalese, 219 N.J. at 440 (citing AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)). Under the FAA, arbitration is a creature of contract. 9 U.S.C. § 2; Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67 (2010); see also Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 187 (2013) (explaining that under New Jersey law, arbitration is 

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also a creature of contract). "[T]he FAA 'permits states to regulate . . . arbitration agreements under general contract principles,' and a court may invalidate an arbitration clause 'upon such grounds as exist at law or in equity for the revocation of any contract.'" Atalese, 219 N.J. at 441 (quoting Martindale v. Sandvik, Inc., 173 N.J. 76, 85 (2002)). 

Appellate courts "apply a de novo standard of review when determining the enforceability of contracts, including arbitration agreements." Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019) (citing Hirsch, 215 N.J. at 186). "The enforceability of arbitration provisions is a question of law . . . ." Ibid. (citing Morgan v. Sanford Brown Inst., 225 N.J. 289, 303 (2016)). No deference is owed to a trial court's "interpretative analysis." Morgan, 225 N.J. at 303 (citing Atalese, 219 N.J. at 445-46). Despite reviewing orders compelling or denying arbitration with the "mind[set] of the strong preference to enforce arbitration agreements," Hirsch215 N.J. at 186, the policy favoring arbitration is "not without limits[,]" Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 132 (2001).

It is unequivocal that "a party cannot be required to submit to arbitration any dispute which [she or] he has not agreed so to submit." Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J. Super. 138, 148 (App. Div. 2008) (citing AT&T 

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Techs. v. Commc'n Workers of Am., 475 U.S. 643, 648 (1986)); Grover & Universal Underwriters Ins. Co., 80 N.J. 221, 228 (1979) ("In the absence of a consensual understanding, neither party is entitled to force the other to arbitrate their dispute."). "An agreement to arbitrate, like any other contract, 'must be the product of mutual assent, as determined under customary principles of contract law.'" Atalese, 219 N.J. at 442 (quoting NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 424 (App. Div. 2011)). "A contract arises from offer and acceptance, and must be sufficiently definite 'that the performance to be rendered by each party can be ascertained with reasonable certainty.'" Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (citations omitted). Where parties agree on essential terms and manifest some intention to be bound by those terms, an enforceable contract is created. Ibid. Hence, a court must determine whether a valid agreement to arbitrate exists before it can decide whether the dispute in question falls within the scope of the agreement. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 626 (1985); Martindale, 173 N.J. at 92. 

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To be enforceable, an arbitration agreement must be clear in stating that the parties are agreeing to arbitrate and give up the right to pursue a claim in court. In that regard, the Atalese Court explained: 

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Mutual assent requires that the parties have an understanding of the terms to which they have agreed. "An effective waiver requires a party to have full knowledge of his legal rights and intent to surrender those rights." "By its very nature, an agreement to arbitrate involves a waiver of a party's right to have her claims and defenses litigated in court." But an average member of the public may not know––without some explanatory comment––that arbitration is a substitute for the right to have one's claim adjudicated in a court of law. 

.... 

No particular form of words is necessary to accomplish a clear and unambiguous waiver of rights. . . . Arbitration clauses––and other contractual clauses–– will pass muster when phrased in plain language that is understandable to the reasonable [person]. 

[219 N.J. at 442, 444 (citations omitted).]
In holding the parties did not enter into an enforceable agreement to 

arbitrate, the Court observed: 

Nowhere in the arbitration clause is there any explanation that plaintiff is waiving her right to seek relief in court for a breach of her statutory rights. . . . The provision does not explain what arbitration is, nor does it indicate how arbitration is different from a proceeding in a court of law. Nor is it written in plain language that would be clear and understandable to the average consumer that she is waiving statutory rights. The clause here has none of the language our courts have found satisfactory in upholding arbitration provisions—clear and unambiguous language that the 

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plaintiff is waiving her right to sue or go to court to secure relief. 

[Id. at 446.] 

Moreover, because the parties' agreement is a consumer contract under N.J.S.A. 56:12-1––defendants provided demolition and construction services to plaintiffs––it must "be written in a simple, clear, understandable and easily readable way." N.J.S.A. 56:12-2. In considering whether an agreement includes a waiver of a party's right to pursue a case in a judicial forum, "clarity is required." Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., 416 N.J. Super. 30, 37 (App. Div. 2010). "For any waiver-of-rights provision to be effective, the party who gives up rights must 'have full knowledge of his legal rights and intent to surrender those rights.'" Skuse v. Pfizer, Inc., 244 N.J. 30, 48 (2020) (quoting Knorr v. Smeal, 178 N.J. 169, 177 (2003)). That is, the waiver "must be clearly and unmistakably established," Garfinkel, 168 N.J. at 132, and "should clearly state its purpose." Marchak v. Claridge Commons, 134 N.J. 275, 282 (1993). 

Guided by these standards, we agree with plaintiffs that the parties did not enter into an enforceable agreement to arbitrate. There was no meeting of the minds to arbitrate their disputes arising from their agreement because the 

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arbitration clause was not clearly and plainly written to make them aware that they were surrendering their rights to pursue claims in court. 

In her oral decision, the motion judge reasoned: 

[I]t's clear that . . . all disputes would be [resolved] by arbitration[,] and I don't think that the reference to court and court-appointed mediator or the court reporter is sufficient to create confusion and, yes, I think that it is sufficient. 

The judge, however, failed to consider the clear declaration in Atalese that an arbitration clause must put plaintiffs on notice that they were waiving their right to trial to resolve disputes. 

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The arbitration clause reads: 

All disputes here under including but not limited to disputes over progress payments and the nature of the work performed at the subject construction site shall be submitted to binding arbitration in Bergen County, New Jersey. The court appointed commercial arbitrator shall be selected to hear all disputes arising hereunder and the parties shall each pay one-half (1/2) of the arbitrator's hourly fees and court reporting and transcript fees in connection with the binding arbitration. The court appointed arbitrator shall apply the Rules of Merit and Arbitration Associations in an effort in effect at the time the arbitration is selected and all parties shall be bound by the arbitrator's decision/award. 

This clause presents the same deficiencies the Court addressed in 

Atalese 

It does not include any language explaining what arbitration is and how it serves 

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as a replacement for judicial relief. It does not convey to the average consumer that he or she is waiving a constitutional right to seek relief in a court of law. While the clause does state arbitration would be final and binding, there is nothing in the record that plaintiffs knew or should have known the arbitration clause was a waiver of their right to trial. In fact, the clause is susceptible to the notion that arbitration was a form of trial in court because of its use of the term "the court appointed arbitrator," thus leading a layperson to think the arbitrator is a component of the court. 

Plaintiffs did not consult an attorney to review the agreement. We reject defendants' contention that plaintiffs, particularly Jimmy Sesse, a podiatrist, were "sophisticated parties" because they made numerous notations and initialed changes to the agreement during their negotiations prior to finalizing their agreement. This did not establish plaintiffs were made aware defendants intended that their disputes could not be resolved in court. Their purported sophistication based on being detail-oriented in the construction of their new home does not equate to the skills and insights of an attorney. 

The arbitration clause is unlike the one in Roman v. Bergen Logistics, LLC, that we found to be enforceable because it "informed plaintiff that the exclusive forum for resolution of her claims was arbitration, she was prohibited 

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from filing any other lawsuits or legal proceedings and she waived her right to a trial by jury." 456 N.J. Super. 157, 172 (App. Div. 2018). The arbitration clause in Roman stated the parties agreed not to "file or maintain any lawsuit, action or legal proceeding of any nature with respect to any dispute" and that "by signing this agreement [the parties] are waiving any right, statutory or otherwise, to a trial by jury." Id. at 162-63 (emphasis omitted). 

In reaching our conclusion that there is no enforceable arbitration clause, we are fully aware that arbitration is a "particularly useful means for resolving construction-contract cases" because "[i]n technical areas such as home building . . . arbitrators often bring expertise that can facilitate a fair and efficient resolution of a dispute." Marchak 134 N.J. at 281. Defendants failed to clearly spell out in their agreement with plaintiffs that arbitration was the only mechanism to resolve disputes arising from the demolition and construction project. 

Lastly, we reject defendants' argument that if we reverse the trial judge's order, we should do so without prejudice and follow the Fed. R. Civ. P. 56 standard of limited discovery. Defendants' reliance on Guidotti v. Legal Helpers Debt Resolution, LLC, 716 F.3d 764, 776 (3d Cir. 2013) in support of this argument is misplaced.

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In Guidotti, the Third Circuit held that if "based on the face of a complaint, and documents relied upon in the complaint" it is apparent that the parties' claims "are subject to an enforceable arbitration clause, a motion to compel arbitration should be considered under a [Fed. R. Civ. P.]12(b)(6) [motion to dismiss] standard." IbidHowever, if the complaint is unclear as to whether 

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there is an agreement to arbitrate, or if the plaintiff has responded with additional facts sufficient to place the agreement to arbitrate in issue, then "the parties should be entitled to discovery [under Rule 56] on the question of arbitrability." Ibid. (citation omitted). The dispositive issue was whether the arbitration clause was included in the initial package of documents emailed to the plaintiff. Id. at 780. The Third Circuit determined there was a genuine issue of material fact regarding whether the parties agreed to arbitrate. Ibid. Consequently, the court analyzed the dispute under the summary judgment standard and remanded to the district court for limited discovery on the specific challenge to the mutuality of assent to the arbitration agreement. Ibid. 

Here, there was no genuine issue of material fact. Unlike the plaintiffs in 

Giudotti, plaintiffs are not arguing that they did not receive the arbitration clause. As noted, they argue the arbitration clause alone is unenforceable because it failed to put them on notice that they were waiving their right to a 

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trial as required by Atalese. Plaintiffs correctly point out this is not a factual dispute warranting discovery but a matter of contract interpretation, an issue of law. Therefore, we reverse the trial judge's order with prejudice because the arbitration clause is unenforceable as a matter of law. 

Reversed and remanded. We do not retain jurisdiction. 

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