New Jersey landlords can find evicting a residential tenant a difficult task. In large part, the difficulty of ending a tenancy stems from New Jersey’s strongly pro-tenant “Anti-Eviction Act,” N.J.S.A. 2A: 18-61.1 (“AEA”). The stated purpose of the AEA is to limit the eviction of tenants to reasonable grounds and provide that suitable notice be given to a tenant prior to eviction. Practically speaking, landlords are generally limited to evicting tenants only on the “reasonable grounds” provided in the AEA. The AEA includes a range of eviction grounds from disorderly/damaging tenants to refusal to accept reasonable lease changes at lease end. By far, the most common ground for eviction is nonpayment of rent.
Evicting a tenant for nonpayment can quickly become a difficult task. Most landlords assume that a tenant’s failure to pay is enough to evict. Unfortunately for property owners, the law is not that simple. Under the AEA, the nonpayment must be for “rent” that is “due and owing.” Here, simple words mean more than meets the eye.
For eviction purposes, rent is generally defined as “compensation paid in either money, labor, produce or something similar, for the use of real estate.” Parkway, Inc. v. Curry, 162 N.J. Super. 410 (N.J. Dist. Ct., 1978). Despite this, most leases contain provisions defining rent to include other charges such as late fees, damage fees, attorney’s fees and court costs. The presence of an expansive “rent” definition term does not provide an adequate ground for eviction. Along this line, a landlord cannot apply a tenant’s payment to other charges called “rent” and evict based on the failure to pay rent. Payments by tenants must first be applied to the rental balance and second to other charges. Consider the following example:
Terry’s lease with Larry provides that he will pay $1,000/month for rent. Rent is expansively defined; including stating that late payments will incur a $100 fee. Terry is late for 6 consecutive months. On the 7th month, Larry receives Terry’s $1,000 payment and applies $600 of the sum to pay the late charges. Larry believes Terry owes him another $600 in rent; Terry having only paid $400 to the current month. Larry wants to evict Terry.
On this basis, Larry cannot evict Terry. The court will treat Terry’s payment as satisfying his rent obligation. Here, Terry has not “failed to pay rent due and owing.” Larry can recover the late fees owed to him in another action not grounded in eviction.
The nonpayment must also be “due and owing.” These three words are often headaches waiting to happen. Rent “due and owing” must be legally due and owing. In certain cases, a landlord’s failure to comply with specific local ordinances can cause serious problems to evicting tenants and collecting rent. Landlords must be careful to obtain any applicable “occupancy permit” or “certificate of habitability.” Failing to obtain certain permits or certificates may affect whether a tenant’s rent is legally due and owing. After all, if the lease is illegal (because the landlord did not comply with laws giving him the right to lease) there is no legal basis for recovery (unless equitable principles dictate otherwise).
Landlords agreeing to take rent in installments or wait for payment not in accordance with the lease (but designed to help the tenant) should be aware that these arrangements do not affect the tenant’s obligations under the lease. Following basic contract principles, there is no new consideration for the landlord’s agreement to wait for money admittedly due. Accordingly, the failure to pay the rent at the agreed upon time can constitute grounds for eviction, subject to any possible estoppel argument by the tenant.
Evicting a tenant in New Jersey is often an onerous and technical process. Since each situation is different, a landlord should consult attorney with his/her specific circumstances. Offit Kurman practices landlord tenant law throughout New York and New Jersey assisting landlords in avoiding unnecessary and costly delays. The firm’s geographic practice area includes: New York City (Manhattan, New York County, Brooklyn, Kings County, Queens, Queens County, Bronx County, Staten Island, Richmond County) and New Jersey (Jersey City, Hoboken, Bayonne, Hudson County, Newark, Essex County, Woodbridge, Middlesex County). The Firm invites you to visit the “Promises” page for our new way of doing business. Contact us today for a guaranteed free initial consultation.