Complex Commercial Tenancies Often Test The Limits Of The Summary Eviction Process

Rental Agreement (PD)
I recently co-authored an article, entitled "Commercial Tenancies, Complexities, And The Limits Of the Summary Eviction Process," that discusses, as the title suggests, situations where commercial landlord-tenant matters may be too complicated for the normal, summary eviction process in New Jersey courts. Here are the first few paragraphs:

New Jersey tenants who don't pay, including commercial tenants, may be swiftly dispossessed of their leasehold pursuant to the Summary Dispossess Statute, N.J.S.A.  2A:18-51 to -61 (the "Statute"). The Statute gives landlords the right to seek the removal of tenants who do not pay rent, or who otherwise violate the terms of the lease.  The Statute establishes a summary eviction process, which as its name implies, is "summary" in nature and, among other things, does not provide for formal discovery and typically does not involve issues other than possession.  From the filing of the summary dispossession complaint it is not uncommon for a tenant to be dispossessed within 90 days or less.

However, what happens when a tenant is not paying rent for a valid reason or due to a legitimate dispute with a  landlord? Can that tenant also be summarily dispossessed? Recognizing the limits of a process that by design is "summary" in nature, New Jersey Courts have answered that question "No." The mechanism to stave off the summary dispossession is the motion to transfer to the Law Division, which remedy is exercisable by a court, at its discretion, if the issues are of "sufficient importance" that proceeding in a summary fashion would not do justice. N.J.S.A.  2A:18-60. Typically, matters of "sufficient importance" involve complex issues and/or the need for discovery.

Please check out the full article here

Condo Association Not Immune From Liability For Slip-And-Fall On Its Private Sidewalk

Shovel (PD)The latest chapter in the "can I be sued if someone slips and falls on the sidewalk in front of my house after it snows" saga has been written. In Qian v. Toll Brothers Inc., the New Jersey Supreme Court held that a condominium association was responsible for clearing snow and ice from the private sidewalks that it controlled, and therefore could be liable for injuries caused by its failure to do so. 

The general law on this issue is well-settled. Historically, no property owners had a duty to maintain the sidewalks on property that abutted public streets, but this changed in the early 1980’s, when the New Jersey Supreme Court imposed such a duty on commercial property owners, but not residential property owners. Therefore, commercial property owners are required to remove snow and/or ice from the sidewalks abutting their property, but residential property owners are not.

In practice, however, the law has proven easier to state than apply. What about situations involving property that is both residential and commercial (click here for more on that)? Or, situations where the injured party is a tenant who is injured on the landlord's property (click here for more on that)? Or, situations where the property is in foreclosure (click here for more on that)? Or, the issue in Qian, situations where the property is a condominium or common-interest community?

Continue reading “Condo Association Not Immune From Liability For Slip-And-Fall On Its Private Sidewalk”

Not The Most Compelling Argument To Make On Appeal

The headnote from a tenant’s appeal of an eviction action in Van Velsor Group, LLC v. Anderson:

With the relationship between the courts and the plaintiff, there’s no surprise that the case was mishandled and reviewed with bias and unfairness.

The Appellate Division rejected this argument, affirmed the trial court’s decision, and held that there was no evidence of bias. I guess this means I should stop including a “come on its obvious the court and the plaintiff were in cahoots" argument in all of my appellate briefs.

Just In Time For Summer, A New Decision On When You Are Required To Clear Snow From Your Property

In the recent past, I have written several posts about when property owners can be liable for accidents caused by their failure to shovel snow from the sidewalks abutting their property. The basic rules are well settled – residential property owners generally don't have a duty to shovel but commercial property owners do. Therefore, my posts focused on the more unique (and hopefully, interesting) cases. For example, one post discussed whether a property was residential or commercial, and therefore whether the property owner would be required to shovel or not, when the owner lived in one unit of the multifamily building and rented out the other units. Another post discussed whether a lender who obtained final judgment of foreclosure on a commercial property, but that had not yet taken title to the property through a sheriff's sale, was required to shovel the sidewalks around the building.

Now there is another case that is somewhat different than the traditional snowy sidewalk slip and fall. In Holmes v. INCAA-Carroll Street Houses Corp, plaintiff was a tenant in a property owned by defendants. She sued after she slipped, while on the way to her car, on "an accumulation of snow" approximately three feet from the doorway to her apartment. (The area where she fell was actually not a sidewalk, but was instead a "lawn or grassy area," but this  distinction was not relevant to the court's decision.) A snowstorm has been raging since the night before. The snow had slowed, and perhaps even stopped, by the morning of the accident, but the storm had nonetheless dropped more than 15 inches of snow on the area. The conditions in the area were so severe that, when plaintiff's son called an ambulance to take her to the hospital, the ambulance company refused because of poor road conditions. The roads were not clear until the following day, at which point plaintiff drover herself to her doctor's office to be examined.

Plaintiff alleged that defendant had a duty to clear the snow from the property. Defendant moved for summary judgment, arguing that it had no duty to do so in the middle of a storm. The court agreed with defendant.

 

Continue reading “Just In Time For Summer, A New Decision On When You Are Required To Clear Snow From Your Property”

Appellate Division to Foreclosing Lenders: “Do Less” Because If You Do More You Might Make Yourself Liable For Damages

 by:  Peter J. Gallagher (@pjsgallagher)

 

There is a scene in the movie "Forgetting Sarah Marshall" where the main character goes to a surf instructor to teach him how to surf. The lesson is not that helpful because, among other things, the instructor gives the main character advice that is impossible to follow, like: "Don't do anything. Don't try to surf. Don't do it. The less you do the more you do." And, then later: "try less" and "do less."

I was reminded of this decision when I read the Appellate Division's recent opinion in McRoy v. Eskander. In that case, the Appellate Division held that a lender was not a mortgagee in possession and therefore could not be liable for injuries sustained by someone who slipped and fell on the sidewalk in front of the property. The reason the lender could not be deemed a mortgagee in possession was because it had done almost nothing to maintain the property in the 18 months after it obtained a final judgment of foreclosure.

In McRoy, plaintiff slipped and fell on snow and ice in front of a four-unit apartment building that was owned by Defendant Eskander. At the time of plaintiff's fall, however, the building had been vacant for approximately 18 months. Eskander had defaulted on his loan with Bank of America ("BofA"), which led BofA to foreclose on its mortgage on the property. BofA obtained final judgment of foreclosure but had not proceeded to a sheriff's sale at the time of plaintiff's fall. Once final judgment of foreclosure was entered, Eskander stopped maintaining the property. Except for performing yard work once, BofA did not maintain the property either. It did periodically inspect the property to ensure it was vacant and, to protect its collateral, it paid the real estate taxes and a water bill.

 

 

Continue reading “Appellate Division to Foreclosing Lenders: “Do Less” Because If You Do More You Might Make Yourself Liable For Damages”