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Legal Update

The following cases have recently been decided by the New Jersey Courts and have an impact on property owners and managers.

Section 8

In this housing discrimination case, known as Pasquince v.Brighton Arms Apartments Mr. Pasquince, a Section 8 recipient, had applied for an apartment at the Brighton Arms apartment complex. For the apartment at Brighton Arms Apartments, Mr. Pasquince's Section 8 voucher would have paid 85% of the monthly rent and Mr. Pasquince would have been responsible for only $141.00 per month. A credit check revealed that Mr. Pasquince owed $2,292.00 to his former landlord. At trial, Mr. Pasquince admitted that he had been evicted from his prior residence as a result of his non-payment of that amount. As a result of the poor credit/rental history, Mr. Pasquince's application was rejected.

In an unpublished decision, the Honorable Mark Sullivan (who sits in Monmouth County) held that the owner's basis for rejecting Mr. Pasquince's application for an apartment not did amount to discrimination based upon his source of income. The Appeal of Judge Sullivan's decision is presently pending in the Appellate Division. Feinstein, Raiss, Kelin & Booker, L.L.C. filed the amicus brief on behalf of the New Jersey Apartment Association in the appeal.

Consumer Fraud

In Wozniak v. Pennella, 373 N.J. Super. 445 (App. Div. 2004) the Appellate Division ruled that a residential landlord's act of raising a tenant's rent in excess of the limit established by the City's rent control ordinance violated the Consumer Fraud Act. Under this statute, a tenant is entitled to three times the damages and attorney's fees.

Security Deposits

N.J.S.A. 46:8-21 was modified to hold that a successor owner is liable to a tenant for the return of the security deposit regardless of whether the owner actually received the deposit at the time title was acquired. However, in an unreported decision the Court in Young Chen and Pao Ching Lee v. Greenway Village Apartments and Jay Phillips, A-4886-03T2 (App. Div. 2005) held that an owner of property which did not receive a security deposit from the prior owner for a particular tenant at the time the property was purchased, was not liable to the tenant for the return of the tenant security deposit because the property was purchased prior to January 1, 2004, the effective date of the amendment to N.J.S.A. 46:8-21.

In Rehnborg v. Queen Anne, Inc. d/b/a Grand Imperial Apartments, A-4320-03T5 (App. Div. 2004), an unreported opinion, the Appellate Division held that once the 30 day period to return the security deposit has run and the deposit is not returned, the tenant is entitled to double the amount wrongfully withheld. The court clarified the formula to be used when doubling monies wrongfully deducted from a deposit.

Eviction Based Upon An Odor

In Ivy Hill Park Section III v. Smirnova, 362 N.J. Super. 421 (Law Div. 2003), a tenant was boiling his urine on the stove. This caused an odor that disturbed the tenant living above. The owner pursued the eviction on the basis that the odor created damage to its property. The Court dismissed the complaint holding that in order to evict for damage to the landlord's property, the damage must be to tangible property.

Eviction Based Upon Habitual Late Rent Payments

One of the issues in Ivy Hill Park Section III, Inc., v. Abutidze, 371 N.J. Super. 103 (App. Div. 2004) involved the landlord's acceptance of late rental payments after issuing the tenant a Notice to Cease for habitual late payments. This Court concluded that following a Notice to Cease, the landlord cannot accept further late payments in silence. The payments can be accepted, however, if the tenant is notified at the time of acceptance of the payment that the late payment is made in breach of the lease, that acceptance of the payment as well as any late charge is without prejudice to the owner's rights and is not a waiver of the owner's rights to enforce the Notice to Cease and to pursue eviction.

Notices In A Foreign Language

The Honorable Mahlon Fast concluded in New York East Coast Management v. Jose Gonzalez and Maria DeLeon, 376 N.J. Super. 264 (Law Div. 2005) that a notice to quit, given in English to a tenant who could not read English, was sufficient notice under New Jersey law despite the holding in 5000 Park Associates v. Collado, 253 N.J. Super. 653 (Law Div. 1991). In Collado, the Court held that an owner was legally obligated to serve a notice in a foreign language to a tenant who was "illiterate in the English language." There now exists two contradictory opinions on this point of law.

Retaliation Defense

In 1266 Apartment Corp. v. New Horizon Deli, 368 N.J. Super. 456 (App. Div. 2004), the Appellate Division concluded that the retaliation defense utilized by residential tenants in summary dispossess proceedings is not available to commercial tenants.

Relocation Assistance

The New Jersey Supreme Court concluded in Miah v. Ahmed, 177 N.J. 511 (2004) that tenants who are evicted as a result of a zoning ordinance violation for an illegal occupancy and entitled to relocation assistance constituting six months of monthly rent regardless of the tenant's actual expenses. The sum must be paid prior to eviction, and the landlord cannot reduce its obligation by the amount of past-due rent or other damages owed by the tenant.

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