Can a landlord terminate the tenancy of a residential tenant on a month-to-month lease?
Many landlords think they have the right to terminate a month-to-month tenancy simply because the tenant does not have a written lease in place. That is not the case. The absence of a written lease allows the tenant to terminate on 1 month’s notice, but it does not provide the landlord with a reciprocal right. Rather, a landlord can only evict a residential tenant, even one on a month-to-month lease, if there are grounds to evict as set forth in the Anti-Eviction Act, N.J.S.A. 2A:18-53, et seq. These grounds include but are not limited to:
- Failure to pay rent
- Disorderly conduct, disturbing the peace of other tenants
- Property damage
- Health and safety violations
- Violation of the lease, rules and regulations
- Failure to pay valid increased rent
- Habitual late payment of rent
- Refusal to accept reasonable changes for lease renewal
- Illegal activity that includes drug convictions or offenses on the property
- Threatening or assaulting the landlord
- Certain criminal convictions
What notices are required to evict a residential tenant?
The Anti-Eviction Act sets forth the notice requirements based on each ground. For example, in a non-payment of rent case, the landlord is not required to provide any prior written notice before filing the complaint for eviction. In some instances, i.e., willful destruction of property, or drug dealing, the landlord can terminate the tenancy on 3 days’ notice and then file for eviction immediately thereafter. But, if the landlord is seeking to evict based upon the tenant’s violation of some other term in the lease (i.e., pets, smoking, disturbances), then certain notices are required as a prerequisite to terminating the tenancy and filing the complaint many of which contain differing timeframes. This process can take 3-6 months, possibly more as the Courts are still working hard to handle the backlog of cases caused by COVID-19.
We come across many landlords who serve their tenants with notices which are woefully non-compliant with the Act. We strongly suggest that a landlord hires legal counsel to assist with this process as an improper notice may lead to dismissal of the case and delay the process many months while we serve the proper notices and re-file the complaint.
Can a tenant withhold rent due to the condition of the premises?
Yes, if the condition complained of affects the habitability of the premises, i.e., hot water, heat, plumbing, sewage, leaks. This does not apply to minor or cosmetic issues. Where habitability or safety is implicated, the tenant must notify the landlord of the issue in writing and provide the landlord with reasonable time to address it. If the landlord does not respond or refuses to address, the tenant can pay for the repairs on its own and deduct from the rent or, in some instances, break the lease. If that happens, the burden will shift to the landlord to file a complaint for non-payment and the Court will conduct a hearing to determine whether the tenant properly withheld or deducted the rent.
How does a landlord increase a tenant’s rent?
The rent amount set forth in the lease will control until the lease expires. If the landlord wishes to increase the rent thereafter, the landlord must serve a notice to quit terminating the tenancy and offering to renew the lease with reasonable changes thereto which may include a rent increase. If the tenant remains at the premises after receiving the notice to quit but does not pay the rent increase, the landlord may try to evict for non-payment.
The next question is whether there is a limit on how much the landlord can increase rent. That depends. If there is a municipal rent control ordinance affecting the premises, then the amount of any increase will be limited by the applicable ordinance unless the landlord qualifies for certain exceptions provided by the ordinance. If there is no ordinance in effect, then the rent increase must not be unconscionable, which is a fact-sensitive determination.
This issue comes into play most frequently when an investment buyer wishes to purchase a property with tenants who are paying below-market rent. As a general rule, we advise such clients that dramatic and immediate market adjustments are unlikely to be enforced and, if they are trying to calculate anticipated rental income, they should plan for gradual rent increases.
Can a landlord terminate a tenancy because it wants to sell the property?
If the tenant has a valid and enforceable lease in place with a set expiration date, then the answer is no. In that circumstance, the property must be sold with the tenant in place unless the tenant agrees to voluntarily vacate.
If the tenant is month-to-month, the landlord still cannot terminate the tenancy unless there are grounds to evict under the Act. However, there is an exception that allows an owner of a 1-2 family home to terminate a tenancy on 2 months’ notice if the landlord wishes to personally occupy the premises or the landlord enters into a contract to sell the property to a purchaser who intends to personally occupy.
Can a landlord pretend that it will personally occupy the premises to get a tenant out?
We strongly advise against it. If the landlord terminates based on the owner-occupancy exception, the landlord (or new buyer) must occupy the premises for at least 6 months. If the landlord (or new buyer) does not move in and instead permits occupancy by another tenant, the landlord will be liable in a civil action for three times the tenant’s damages plus attorneys’ fees and costs. The court may also award any other appropriate legal or equitable relief which gives the court wide latitude in determining a tenant’s damages.
What is the status of eviction proceedings in NJ state courts?
Courts are moving as quickly as possible to fairly and efficiently resolve the substantial backlog caused by the pandemic. In some counties with higher caseloads, there are still complaints pending from last year and landlords are not happy about it. We get calls all the time asking if there is anything we can do to speed up the process. Barring an emergency circumstance warranting the filing of an order to show cause, (i.e., tenant destroying the property), we cannot get your case before a judge any quicker. The good news is that we are now seeing much faster turnaround times and cases that we filed in 2022 are being scheduled for mandatory settlement conferences and even trials.
Can a landlord evict a tenant who did not pay rent during the pandemic?
Governor Murphy’s Executive Order No. 249 protects tenants from eviction for nonpayment of rent if the nonpayment took place from March 1, 2020 to December 31, 2021 and the tenants complete a certification stating that their income was below 80% of the area median income, they were unable to pay rent as a result of the pandemic and they applied for rental assistance. When the tenant files that certification, a landlord cannot evict for nonpayment of rent during the protected period. However, a landlord may still file an action seeking collection of money damages and the Executive Order does not stop a landlord from evicting where the nonpayment of rent took place before or after the protected period.
When can a landlord keep a tenant’s security deposit?
The Security Deposit Law, N.J.S.A. 46:8-19, et seq., requires a landlord to return a security deposit to a tenant within 30 days of vacating or provide written notice with an explanation as to why the deposit is not being returned along with supporting documentation. Failure to comply can result in the imposition of double damages and legal fees against the landlord. In situations where the outstanding rent owed exceeds the amount of the deposit, the notice is simple. But in cases where the damages could be attributable to reasonable wear and tear, courts will examine such factors as the length of time a tenant resided at the premises, the condition of the premises before and after the tenancy, the amount of the replacement costs, etc. We strongly suggest that both parties take photographs of the condition of the premises both before and after a tenant moves in to substantiate any claims or defenses.
Now that the tenant has vacated, can a landlord throw out anything left behind?
No, a landlord cannot simply throw out a tenant’s personal belongings left behind after vacating. N.J.S.A. 2A:18-72, et seq., imposes storage obligations upon the landlord and requires the landlord to provide a tenant with certain notices prior to disposing of those items (excluding abandoned motor vehicles which are governed by other laws).