Ejectments

We are frequently asked about the rules regarding Evictions and Ejectments. Both types of actions are used to remove occupants from properties. But eviction actions are only appropriate in cases where the occupants are tenants. Generally, an occupant will be considered a tenant in any case where there is an agreement (whether written or oral) that the occupant will pay rent for the use of the premises. In order to remove an occupant who is not a tenant, we must file an Ejectment action. As Ejectment Actions near their lockout dates, some Defendants have resorted to extreme means to remain in their foreclosed houses. In today’s article, we will discuss some of those efforts.

Historically, ejectment actions were cognizable only as plenary hearings in Law Division or in Chancery Division. However, it was clear that the procedural rules of both Divisions, which allow for lengthy and comprehensive pretrial discovery, were not very well suited for matters where there was no issue of title, and where the Plaintiff was not seeking any monetary relief. Consequently, it was brought to the attention of the New Jersey Supreme Court’s Special Civil Part Rules Committee, on which I serve, that there was no Court Rule or Statutory provision that would permit Ejectment Actions to quickly proceed in a Summary manner, while avoiding the usual pitfalls and delays of plenary proceedings.

The Committee ironically turned its attention to a Statute, which was originally designed to assist tenants who were illegally locked out. It was the Forcible Entry and Detainer Act, found in N.J.S.A 2A:39-1, et. seq. However, since it was clear that actions brought under this section could be used in any matter in which a property was used “without the consent of the party in possession,” the Committee concluded that N.J.S.A. 2A:39-5 was applicable to all matters where an occupant remains in a property without consent of the owner after a demand to vacate. Accordingly, in 2012, the Supreme Court of New Jersey introduced Court Rule 6:1-2 (a)(4) to allow the filing of Ejectment Actions as a Summary proceeding before the Special Civil Part of the Court, thus enabling a Plaintiff to secure a Court date within just a few weeks of filing.

Following the 2012 Court Rule Amendment, it has been brought to our attention that some attorneys are erroneously being told that their Ejectment actions must be filed in the Foreclosure Docket. However, there is no such restriction in the old rule or the amended Court Rule. In order to fully address this issue, we must start by examining the treatment of Ejectment Complaints prior to the Court Rule amendment. In the matter of Chase Manhattan Bank v. Josephson, et. als. 135 N.J. 209 (1994), the New Jersey Supreme Court noted that in order for a purchaser “to gain possession, [he or she] must obtain an order for possession from the Superior Court.” The Court further stated that the Order could be obtained “either in an action for possession pursuant to N.J.S.A. 2A:35-1 or as part of the action to foreclose the mortgage.” [Emphasis added]. Accordingly, while some Ejectments were sought under the foreclosure docket, the vast majority of Ejectment Actions continued as Law Division matters, even in cases where the purpose of the Ejectment was to remove a former owner following a foreclosure action. The use of the Ejectment Complaint to remove occupants following a foreclosure, therefore, continued in Law Division, without much objection until the recent Court Rule change.

However, since the Court Rule change, our office has been asked to quash numerous Motions on behalf of occupants, who have argued that the Ejectment Process following a foreclosure must be conducted under the Foreclosure docket. In the matter of 206 Wynatt, L.L.C. v. Nixon and Lee, et. als., Ocean County Docket Number DC-395-15, the Defendants filed multiple Motions with the Court, first claiming that they were in the process of challenging the foreclosure action, and later claiming (falsely) that an appeal in the New Jersey Appellate Division was pending. When those Motions were not successful, the Sheriff’s office scheduled a lockout date. The Defendants responded by filing an emergent application with the Appellate Division to stay the lockout. The Appellate Court denied the Defendants’ application and allowed the Ejectment to continue. Most importantly, the two appellate judges who reviewed the Defendants’ appeal found no significance in the fact that this Ejectment followed a foreclosure. It was therefore clear that the prior foreclosure could not be used as a reason for removing an Ejectment action from the Special Civil Part.

More recently, in the matter of Revell v. Schmidt, Docket No. MRS-DC-1234-17, the Defendant, who was previously foreclosed upon under Docket No. MRS-F-45240-09, brought an emergent Motion before the Chancery Division, 2 days prior to lockout, arguing that the Foreclosure Docket retains jurisdiction upon foreclosure action, which extends not only to the lender who is the Plaintiff in the Foreclosure action, but also to subsequent purchasers. The Defendant, through counsel, further argued that the filing of the Ejectment matter in Special Civil Part violated New Jersey’s Entire Controversy Doctrine. As counsel for the Plaintiff in this matter, I noted that the action could have been brought under the original Foreclosure docket, but there was absolutely no requirement that we should do so. Reciting the Court’s logic in Josephson (supra), I pointed out that the Ejectment could proceed as either part of the Foreclosure Docket, or as a separate action in the Law Division (or in this case, the Special Civil Part). After several hours of oral argument, Judge Brennan rendered a decision, in which he ruled in favor of the Plaintiff and allowed the Ejectment action to continue.

For assistance with any questions regarding Ejectment actions, please feel free to contact our office.