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Community Associations and Tenants | Part 4 – Evicting Tenants

By Dean L. Semer, Esq. February 14, 2012 Posted in Community Association Law

This is the fourth of 4 blog posts concerning tenant issues within community associations. In Part 1, I explained why Associations cannot prohibit tenants. In Part 2, I explained that it is not a good policy for an association to require credit checks or background checks of potential tenants. In Part 3, I explained about leasing resolutions and lease riders.

Here in Part 4, I will provide an overview about evicting tenants. This assumes that the Association’s governing documents contain an “eviction provision” and an “attorney-in-fact provision.”

In accordance with New Jersey’s Anti-Eviction Act of N.J.S.A. 2A:18-61.1, et seq., tenants may only be evicted for “cause” upon certain grounds specified within the Act. Assuming that “cause” is found, a complaint will be filed in Landlord-Tenant Court in the county where the home located.

If there is a lease provision about adhering to the Association’s rules or the Association’s lease rider was signed, then the provision of the Anti-Eviction Act that is most relevant to the Association will be N.J.S.A. 2A:18-61.1(d). This section provides that the tenant may be evicted if

[t]he person has continued, after written notice to cease, to substantially violate or breach any of the landlord's rules and regulations governing said premises, provided such rules and regulations are reasonable and have been accepted in writing by the tenant or made a part of the lease at the beginning of the lease term.

In addition, or if there is no lease provision about adhering to the Association’s rules or if the Association’s lease rider was not signed, then a second relevant provision is N.J.S.A. 2A:18-61.1(b), which provides that the tenant may be evicted if

[t]he person has continued to be, after written notice to cease, so disorderly as to destroy the peace and quiet of the occupants or other tenants living in said house or neighborhood.

Whether subsection (d) or (b) is utilized, or both, there must be a witness or witnesses documenting the dates and times of the occurrences. Then a written Notice to Cease must be sent to the tenant, providing for a one month opportunity to cure. If the violation is not cured, then a Notice to Quit must be sent. Only after the Notice to Quit is sent, can an eviction complaint be filed. The witness or witnesses must also be prepared to testify to the dates and times that were documented at trial.

If all of the above were followed, then the Court may grant a Judgment for Possession. This means that the owner (or the Association as attorney-in-fact) has the right to regain possession of the home from the tenant.

Following the judgment, a Warrant of Removal would have to be filed. The Warrant instructs a court officer to “lock” the tenant out of the home, if the tenant does not move within three days following the service of a Warrant of Removal. The earliest that a Warrant of Removal may be served by law is eight days following the entry of the Judgment for Possession. The reality is that it is served usually after two to three weeks.

A tenant still has post-Judgment for Possession Rights. One right is to appeal the Judgment for Possession. It is rare that a tenant appeals a Judgment for Possession. This is because it is very costly and time consuming to file an appeal and have a case heard in the Appellate Division. Also, the filing of an appeal does not stop a lock-out.

More common is that a tenant files an application with the Court seeking one of the following:

  • Order for Orderly Removal – A judge may grant up to an additional seven (7) days for the tenant to move;
  • Order for Hardship Stay – A judge may allow a tenant to stay if it can be shown as to why eviction would cause a hardship. The judge may grant a Stay for up to six months, so long as the tenant pays the rent in full due at the time, pays the rent going forward, and does not damage the premises.

The judge may grant either with or without additional conditions.

It must be clearly understood that it is very difficult to evict tenants in cases that are not based on the non-payment of rent. Strict adherence to the Anti-Eviction Act and the court rules is critical. Otherwise, the case will be dismissed.

Also, any eviction proceeding must be filed by an attorney, and not the Board or the management company. All community associations are not-for-profit corporations and in Landlord-Tenant Court, a corporation must be represented by an attorney.

This posting is intended to provide general information and is not intended as specific legal advice or to establish an attorney-client relationship. Please contact Griffin Alexander, P.C. at (973) 366-1188 to assist you with both your Community Association law and Landlord-Tenant law needs.

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