The limited ways to evict a tenant in New Jersey during Covid

[Peter Cecinini]

As a general practice real estate attorney and property investor, one of the most commonly asked questions I get is what a landlord's options are to evict a problem tenant during Covid. I hope the following will be helpful for the New Jersey BP community. Note that the following generally does not apply to simple non-payment of rent cases, these are still barred but even in a non-payment case you might have some outside the box options that I will go over in a separate upcoming post. 

It has now been more than a year since Governor Murphy signed an executive order stopping evictions in New Jersey​, until two months after the expiration of the covid state of emergency. This order did not mandate that landlord-tenant trials stop, just the lockouts. Nevertheless the Judiciary of New Jersey, in its infinite wisdom, has stopped holding ANY trials in landlord-tenant court. Other courts have held trials over zoom, or even telephone, but not landlord-tenant. So as landlords continue to file complaints, they are given a docket number, and the cases just sit while judiciary landlord-tenant staff do... what?

Fortunately, the executive order allowed evictions in the "interests of justice", and the Courts also have equitable powers that allow them to permit evictions in "emergency" situations. These exceptions to the no-evictions rule are narrow, and expressly do not include the non-payment of rent as a cause of action. There have been a flurry of covid court orders specifying when an eviction can proceed, and it continually changes, so this post is meant to help sort through the most current orders as of its writing, and give some guidance to landlords with serious problem tenants. All of the court orders can be reviewed at this link, and any subsequent orders after I write this should also be found here (the State has been continually updating the link).

July 14, 2020 Court Order

This finally amended prior orders to allow a landlord to apply for an order to show cause for eviction in "emergent circumstances". The basis "cannot be non-payment of rent, except in the case of the death of the tenant." In determining whether to allow an eviction trial, the court must "determine whether an emergency exists (e.g. , violence against other tenants; criminal activity; extreme damage to residence; death of tenant resulting in vacancy of the rental unit)". Also, an eviction may proceed in the "interest of justice".

July 28, 2020 Court Directive Regarding the July 14, 2020 Order

​This clarified the July 14 order a bit. It states that "The court will review all applications for an Order to Show Cause with the case proceeding to trial only if the court determines that an emergency exists. The Anti-Eviction Act, N.J.S.A. 2A:18-61.1, and the Summary Dispossession Act, N.J.S.A. 2A:18- 53, provide the following grounds for the removal of tenants that may constitute emergent circumstances justifying an LT trial:

• Disorderly tenant (N.J.S.A. 2A:18-53(c) or 2A:18-61.1(b));
• Willful or gross negligent damage to premises (N.J.S.A. 2A:18-53(c) or
2A:18-61.1(c));
• Abating housing or health code violations (landlord seeks to permanently board up or demolish premises because cited by authorities/inspectors for substantial health and safety of tenants) (N.J.S.A. 2A:18-61.1(g));
• Occupancy as consideration of employment (N.J.S.A. 2A:18-61.1(m));
• Offenses under comprehensive drug act (N.J.S.A. 2A:18-61.1(n));
• Assaults or threats against landlord or certain other persons ((N.J.S.A. 2A:18-61.1(o));
• Eviction for civil violations (tenant found by preponderance of evidence that theft of property, assault, terroristic threats against landlord or member of their family, employee of landlord’s, etc.) (N.J.S.A. 2A:18-
61.1(p));
• Eviction for theft (N.J.S.A. 2A:18-61.1(q)); and
• Human trafficking (N.J.S.A. 2A:18-61.1(r)).

The above list is not meant to be exclusive. The court will take into consideration the circumstances of each case in determining whether a trial is warranted."

February 5, 2021 Court Order with Clarifications Regarding Commercial Evictions

This order clears up some confusion from the prior order, and expands somewhat the grounds for relief in a commercial eviction only. It does not mention any of the examples from the July 28, 2020 Court directive, rather it re-lists what was already there in the original July 14, 2020 order. It states:

2. In determining whether to issue the Order to Show Cause, the court in both residential matters and commercial matters will review the complaint and determine whether an emergency exists ( e.g., violence against other tenants; criminal activity; extreme damage to residence; death of tenant or permanent closure of the business resulting in vacancy of the property).

3. In residential matters, the basis of that landlord/tenant action cannot be nonpayment of rent, except in the case of the death of the tenant.

4. In commercial matters, the basis of that landlord/tenant action cannot be nonpayment of rent, except where the tenant has vacated the property; the tenant's business is not operating and will not resume operations; or the commercial landlord is facing foreclosure or a tax lien.

5. The court, based on its determination as to whether an emergency exists, may schedule a landlord/tenant trial. As permitted by Executive Order 106, following any such trial an eviction may proceed in the "interest of justice.

Conclusion - You Need Good Facts to Get a Landlord-Tenant Trial Because the Judge has ALL the Discretion

As you can see, there are several grounds that can be argued to evict a seriously bad tenant. However be aware that these orders do NOT mandate a judge to allow an eviction in these circumstances. They merely allow a judge to, if the judge is convinced that there is an emergency at the property. You might have a cause for eviction that is considered "emergent" by the anti-eviction act, but the judge might determine it is not emergent enough to allow an eviction in your particular case. And although the "interests of justice" seems like a broad phrase, and most evictions are in the interest of justice if you ask the landlord, this is actually a very narrow standard. It takes a LOT to convince a judge that the interests of justice require an eviction to proceed. It is ultimately an emotional decision more than anything else, so if you are going to make one of these arguments, make sure to back it up with lots of documents and pictures if possible. You have to make it super clear that you are the good guy in the situation, and that is always an uphill battle for a landlord in front of a landlord-tenant judge.

[Peter Cecinini]

Hi Mark,

If your seller filed an eviction 6 mos ago and got a docket number, its a good estimate to say that the courts will hear that case 6 mos after they reopen this spring or (more likely) summer. They will hear all the cases that got filed earlier first, in docket number order.

Hopefully your contract calls for some sort of escrow or other way of compensating for the tenant issue. Otherwise the deal should be so good that it will be worth having no rent for a year after you close, plus some attorney fees especially if the tenant fights the case. And you need to make sure you can carry the property without that extra rent for 1 year. If not, you may want to seek an exit plan.

You may also have your closing attorney check that the complaint was filed properly, if they are familiar with landlord tenant law. Its a public record on ACMS just do a party name search for the tenants name you will find it. Landlord tenant law is very, very technical in NJ and if anything is done incorrectly on the complaint a judge will throw the whole case out and you have to refile and start all over at the back of the line.