Rent-control ordinances across New Jersey control the legal rent a landlord is entitled to from each rental unit. Most rent-control ordinances provide landlords an opportunity to raise the rent between tenants. As noted in a prior post, Jersey City’s rent-control ordinance does not provide for such “vacancy decontrol.” The absence of vacancy decontrol raises interesting questions in the context of eviction for nonpayment proceedings. To what extent must a landlord show compliance with rent control when alleging a tenant failed to pay rent “due and owing?” If the Landlord can’t show compliance with rent control should the complaint be dismissed? These questions came up in a case in Hudson County a short time ago. The outcome has important implications for tenants and landlords across New Jersey.
I represented a Jersey City tenant who was convinced her rent was more than allowed by rent control. By herself, she filed a rent control complaint and decided to withhold the rent from her Landlord. Predictably, Landlord filed an eviction for nonpayment complaint. Pursuant to N.J.S.A. 2A:18-61.1(a), to evict a tenant for nonpayment of rent, a Landlord must show that the tenant “person fails to pay rent due and owing under the lease.” In the Complaint, the Landlord rent allegedly “due and owing” was the same amount the Tenant disputed. There are other wrinkles in the case that could have affected the outcome, but we’ll stick to the rent alleged for now.
As mentioned, Jersey City does not have vacancy decontrol. So, the rent the Tenant did not pay should be the same rent (plus some limited legal increases) paid by the prior tenant. On the trial date, I explained to the Landlord’s attorney that the tenant wanted to stay in the apartment and was willing to pay whatever the legal rent is. When I mentioned the potential rent control violation, the Landlord reacted unfavorably.
The Parties appeared before the Landlord-Tenant Court and the Court asked me to explain our objection to the Landlord’s eviction for nonpayment complaint. I described to the Court that our position was that the Landlord can’t allege rent legally “due and owing” without showing compliance with rent control. I referred to the Jersey City ordinance which requires that a rental statement be provided to a new tenant. I informed the Court that the tenant never received that statement. After taking the Landlord’s testimony, the Court learned that the Landlord had no idea how the rent was set and followed no particular rent calculation to show compliance with rent control. On the Tenant’s behalf, I asked that the Court dismiss the Complaint and return all rent (deposited in court) to the Tenant. The Court agreed and dismissed the Landlord’s eviction complaint.
The practical effect of this case is interesting. At least in Hudson County, the Landlord-Tenant Court appears to accept raising a rent-control violation as a defense to a nonpayment complaint. Once the rent-control violation defense is raised, the burden shifts to the landlord to show rent-control compliance. If the landlord cannot show rent-control compliance then the Complaint is defective, on its face, for failure to plead rent “due and owing.”
The case described above had some special wrinkles. The Tenant and I were able to show that the Tenant filed a formal rent-control complaint. We were also able to show that the rent-control documents available to us clouded the issue as to what rent was owed. In the Court’s opinion, these facts were important. Though the issue was never reached, the rent-control defense could fail if the tenant can’t show some sort of bona fide concern and attendant action. Despite all this, one thing is for sure: Eviction for nonpayment cases may not be as simple as Landlords would prefer.
Since the facts of each circumstance vary, a landlord or tenant should consult an attorney with his/her specific circumstances. Offit Kurman practices landlord tenant law throughout New York and New Jersey assisting tenants 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, Paterson, Passaic 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.