Tenants seeking a break in rent for building services interrupted by Hurricane Sandy got bad news on Monday, as an Essex County judge ruled the outages were "unquestionably beyond the power of the landlord to have reasonably avoided or corrected."
"Restoration of power was within the control of the power supplier, rather than the landlord," Superior Court Judge Mahlon Fast said, denying a rent abatement in Gardens at Maplewood v. Fowlin, ESS LT 5240-13.
According to the opinion, tenant Ronald Fowlin withheld half his $1,495 rent for last November, citing his lack of lights, heat and hot water for two weeks.
His landlord, owner of the Gardens at Maplewood apartment complex, filed for eviction based on nonpayment of $857.50, which included a late charge, attorney fees and court costs.
Fowlin contended that the landlord was subject to an implied covenant of habitability and that he was entitled to an allowance for the apartment's uninhabitable condition.
He cited Marini v. Ireland, 56 N.J. 130 (1970), which held that a tenant may receive an allowance for certain conditions found to be the landlord's fault or responsibility.
But Fast said the conditions in Fowlin's case were not a result of a latent defect in the facilities or caused by the landlord's failure to make repairs.
Fowlin also cited Chess v. Muhammad, 179 N.J. Super. 75 (1981), in which the Appellate Division said that "even the most diligent landlord cannot prevent occasional interruptions in the livability of rented premises, whether due to the breakdown of mechanical facilities or sudden acts of nature."
Fast said Chess also noted that tenants' remedies are limited to cases in which the landlord failed to make repairs within a reasonable time.
"I know of no case allowing relief to a tenant because of a loss attributable to an act beyond the reasonable control of a landlord," Fast wrote, ordering Fowlin to remit the unpaid amount by April 15 or face a judgment for possession.
Fowlin's lawyer, South Orange solo Stanley Varon, says the case was wrongly decided.
The landlord's lawyer, Angela Gurrera of Feinstein, Raiss, Kelin & Booker in West Orange, says that although many people lost power after Sandy, she is not aware of other tenants seeking a rent credit on that basis.
Bruce Gudin, counsel to the New Jersey Property Owners Association, says both sides presented compelling arguments but Fast drew from precedent in holding a landlord is not liable.
Gudin, who was not involved in the case, is with Ehrlich, Petriello, Gudin & Plaza in Newark.
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SAN FRANCISCO — Calling it an improper effort by private citizens to enforce drug laws, a federal magistrate on Monday rejected preliminary efforts by landlords to shut down the medical marijuana dispensary at the center of a battle with federal authorities.
In a 17-page order, San Francisco U.S. Magistrate Maria-Elena James rebuffed requests from the landlords of Harborside Health Center to force the state's largest marijuana dispensary to halt operations in Oakland and San Jose.
The decision sets the stage for a direct clash between the dispensary and the U.S. attorney's office, which filed forfeiture actions targeting Harborside as part of a crackdown on large-scale dispensaries in California.
Harborside, which claims to be operating in accordance with state law, is backed by the city of Oakland and a team of lawyers from Morrison & Foerster. Oakland filed a separate suit last year challenging the federal action.
In her order, James denied a motion from Oakland to stay the feds' forfeiture proceedings, saying the cases are likely to raise similar arguments and should proceed simultaneously.
Harborside's landlords, which intend to defend their properties from federal seizure, have so far been cooperating with the federal government. Their lawyers asked James at a hearing last month to invoke a procedural rule permitting judicial action to protect property subject to forfeiture proceedings or prevent its criminal use.
Calling the issue one of first impression, James determined only the government could properly make such a request.
"Claimants are attempting to use a procedural rule in a civil forfeiture proceeding to bring what amounts to an enforcement action under the [Controlled Substances Act] against Harborside," James wrote. "This is a measure which the government — the entity charged with enforcing the statute — has elected not to pursue."
Additionally, James concluded the landlords would not suffer irreparable harm from Harborside continuing operations. Both leases acknowledged Harborside's intended use for the property, James noted.
"While the court understands claimants' concern over the potential forfeiture of their properties," James wrote, the landlords are not entitled to invoke federal drug laws to "sever business relationships when they suddenly prove risky or to demonstrate cooperation with the government."
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NEW EMINENT DOMAIN MEASURE WOULD CONSTRAIN TAKINGS FOR REDEVELOPMENT
Legislation that would make it harder but not onerous for local governments to use eminent domain for redevelopment purposes was voted out of committee in the state Senate on Monday.
The bill, S-2447, would more restrictively define "blight" — the 1947 constitution's standard for allowing condemnation for development by private entities — but would provide a negotiation alternative to the rigors of condemnation proceedings.
The Senate Community and Urban Affairs Committee voted 5-0 for the bill, which is sponsored by committee chairman Jeff Van Drew, D-Cape May, and Sen. Ronald Rice, D-Essex.
It is a scaled-down version of an eminent domain reform bill, sponsored by Rice, that failed to win enough support for passage before the full Senate two years ago.
S-2447 codifies Gallenthin Realty Development Inc. v. Paulsboro, 191 N.J. 344 (2007), which said a blight determination requires a finding of a "deterioration or stagnation that has a decadent effect on surrounding property."
The Gallenthin court found the standard in the Local Redevelopment and Housing Law, N.J.SA. 40A:12A-5(e) — a "stagnant or not fully productive condition" — unconstitutional as applied.
The revised bill would substitute the term "unproductive condition," which the sponsors say comports with Gallenthin's rationale.
S-2447 also codifies Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008), which held that if a property owner is not given adequate written notice of condemnation for redevelopment, the 45-day deadline for filing a challenge can be waived.
Significantly, the revised bill would allow local governments to explore redevelopment efforts without having to designate and area as blighted. Rather, local governments could negotiate with property owners but would have to specifically state that the properties are not to be subject to condemnation.
"The bill says municipalities can go with Option A or Option B," says Michael Cerra, the senior legislative analyst with the New Jersey State League of Municipalities. He adds that allowing for redevelopment without condemnation is less likely to turn property owners against a project from the outset.
Cerra says municipalities could not argue with having Gallenthin and Harrison rulings being made part of the bill. "That's the law now," he says.
Rice told the committee Monday that the new bill was the product of more than two years of negotiating with interested parties, and that it represented a compromise. "It's like building a house," he said. "You start with a foundation."
Due in large part to opposition from local governments who feared the previous version would hamper redevelopment, Rice could only muster 13 of the required 21 votes needed for passage when it was brought up in January 2011.
The new bill eliminates earlier provisions, found objectionable by municipalities and developers, that would have:
• Required the condemning agency to provide a property owner with a copy of the appraisal being used to determine the amount that the agency is offering to purchase the property;
• Required the appraiser to consider the property owner's information and issues when estimating the fair market value of the property;
• Required the appraiser to transmit the property owner's information and issues, in writing, to the condemning agency;
• Required the appraisal to reflect value attributable to the location of the property;
• Allowed the property owner to provide information to and raise issues with the agency's appraiser;
• Provided a property owner with a 45-day period to review the offer, extendable up to 70 days, with rights to request more information from the condemning agency, to meet with representatives of the agency and to obtain his or her own appraisal.
It is not clear when S-2447 will be considered by the full Senate. An identical measure, A-3615, is pending before the Assembly Commerce and Economic Development Committee, sponsored by Albert Coutinho, D-Essex.
The committee on Monday also recommended passage of S-2018, which would allow prevailing tenants in disputes with landlords to recover counsel fees and costs if their leases permit landlords to so recover.
The bill, sponsored by Sen. Brian Stack, D-Hudson, passed in a 5-0 vote.
"This puts the tenant on a level playing field with the landlord," Stack says.
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Panel Urges Automatic Mediation for Citizen Complaints in Municipal Court
Presumptive mediation of municipal court disputes has worked well enough in a pilot program that it should be rolled out statewide, a Supreme Court committee says.
Marked for automatic referral to court-trained mediators would be matters involving trespassing, noise complaints, neighborhood disputes, merchant-customer disputes (excluding shoplifting), landlord-tenant disputes, criminal mischief, property disputes, animal complaints, disorderly persons offenses and simple assault.
The proposal, published Feb. 18 for public comment, also needs to be reviewed by the Conference of Presiding Judges of Municipal Courts before it is presented to the Supreme Court for implementation.
The Committee on Complementary Dispute Resolution's Municipal Court Programs Subcommittee first made the recommendation last December in a report on the presumptive mediation pilot program after surveys that showed overwhelming support.
The subcommittee, through a working group, recommended that:
• The Administrative Office of the Courts and vicinages should develop training material for municipal judges and staff.
• The AOC should enhance its Automated Traffic System/Automated Complaint System (ATS/ACS) — a program and database — to enable better tracking and scheduling of mediated matters and provide statistics.
• Municipal presiding judges should receive electronic reports from the AOC to help them oversee the program.
• Standard forms and notices developed for the pilot program should be used statewide.
• Municipal judges should be able to direct mediation in complaints filed by a police officer over a neighborhood or other minor dispute, or truancy.
• Shoplifting cases should be excluded from mediation.
• The Conference of Presiding Judges-Municipal Courts should be consulted on any other matters that should be included or excluded from the program.
Comments on the proposal are due to the AOC by April 1, with the court likely to make a decision in June or July.
The pilot program's first iteration came about in 2005, when the court approved a CDR committee resolution to test mediation's effectiveness, efficiency and ability to reduce municipal backlogs.
Before that, a presumptive mediation program in the Civil Part had found success.
The 2005 program, in seven municipal courts, lasted 18 months. The results were positive, but the subcommittee held them inconclusive, based on the limited participation, and recommended an expansion.
The court approved the expansion and ordered refinements to forms and surveys, data collection procedures and oversight.
The expanded pilot was launched in 2009 in 45 municipal courts, three each from the judiciary's 15 vicinages.
Just as in the 2005 program, participating courts were directed to automatically refer to mediation matters stemming from private citizen complaints and those not listed in Rule 7:8-1.
That rule precludes mediating complaints involving serious injury, repeated acts of violence between the parties, demonstrated psychological or emotional disability, parties already involved in a Superior Court action, domestic violence, traffic violations or penalty enforcement actions.
Cases filed by law enforcement or a government entity cannot be mediated. Judges — who, along with court administrators, went through training sessions — also could keep a case from mediation for good cause.
According to surveys, 91 percent of judges, 89 percent of court staff and 82 percent of mediators said they supported a statewide program.
The State Bar Association has taken no position on the proposal yet but will form one during its March 22 board meeting after receiving input from its Municipal Court Practice and Dispute Resolution sections, according to Charles Hollenbeck, executive director of the association's Commission on Professionalism in the Law.
Laura Kaster, who chairs the Dispute Resolution Section but declines to speak on its behalf, says she strongly supports the program and any other that spreads the use of mediation and other resolution methods.
"Municipal disputes are particularly well-suited to mediation" because they typically involve parties who have an ongoing relationship, says Kaster, who heads Appropriate Dispute Solutions in Princeton.
Kaster says she doubts any lawyers will protest increased mediation at the expense of courtroom time. "Municipal court cases are not a source of lucrative employment. … Most attorneys understand that resolving a dispute efficiently for your client encourages more clients."
John Menzel, chair of the Municipal Court Practice Section, says mediation is a valuable tool, but one that's been well-used already.
"I just wonder what the difference is between what's proposed and what's existing," he says. "Mediation's been around a long time," he says, adding that he first participated in a mediation program in Newark Municipal Court in 1986.
Jeffrey Gold, former chair of the Municipal Court Practice Section and chair of the Association of Criminal Defense Lawyers-New Jersey's Municipal Court Section, calls the proposal "a good idea," noting that mediation has "been very effective wherever it's been used."
"Minor disputes have been its bread and butter," Gold says. "You bounce a check to the drug store — they're probably OK with you paying them back" without judicial intervention.
He adds that mediation is "in the public interest because it avoids litigation," yields results more satisfactory to parties, empowers victims to resolve cases on their own terms and "is in line with what the Legislature is doing generally" in its attempts to expand municipal diversionary programs.
New Jersey Law Journal 2/21/13
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TENANT CASE DRESSED AS RICO CLAIM SPURS CIRCUIT TO SEEK ACT'S REVISIONS
A plaintiff's use of Racketeer Influenced and Corrupt Organization Act counts in a landlord-tenant suit has prompted a federal appeals court to recommend that Congress reform the statute. The plaintiff is one of "countless others who have fashioned such claims out of disputes that have nothing whatsoever to do with subverting crime rings or criminal syndicates," Third Circuit Chief Judge Theodore McKee wrote on Feb. 24, adding that a congressional look into RICO's misuse is needed. The suit, Bolmer v. Connolly Properties Inc.
, 09-4541, alleged that a landlord conspired to rent to undocumented tenants because they are less likely to complain about substandard conditions or seek rent reductions.NJLJ 2/28/2012 Link
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LANDLORD'S PASS-ALONG OF FLAT LEGAL FEE TO TENANTS RULED ILLEGAL FEE SPLITTING
A state appeals court on Thursday reinstated a class action on behalf of apartment tenants who were charged a flat $400 fee any time the landlord consulted an in-house attorney to enforce lease provisions. To charge a flat rate greater than the cost of the representation "runs afoul of the general proscription that an attorney's fee may not be shared with a non-attorney," the Appellate Division said in Green v. Morgan Properties, A-3203-10. The court found the plaintiffs stated viable claims for consumer fraud and negligent representation by alleging the landlord imposed charges for legal services that exceeded the representation cost.
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Meier v. D'Ambose
LANDLORD-TENANT LAW — Negligence
New Jersey Law Journal, May 6, 2011
Defendant landlord had a duty to the decedent to maintain the furnace and, thus, to inspect it periodically to ensure that it was in safe operating condition and not creating a fire hazard.
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