Requesting Emergent Eviction Hearings During the Pandemic
On March 14, 2020, the New Jersey Supreme Court issued an Order, directing that all Landlord Tenant operations would be immediately stopped, starting on March 16, 2020 and continuing for a period of 2 weeks. We were led to believe that this decision was designed to “flatten the curve,” and that normal Court operations would resume soon thereafter. However, the Court closure was soon followed by Executive Order 106, which prohibits all evictions of residential tenants until 2 months after the end of the State of Emergency. EO-106 further provides that lockouts would be permitted only in narrow instances in which they were necessary “in the interests of justice.” However, the Order did not define what “necessary in the interests of justice” would entail, nor did the Order explain how a landlord would be able to even request a lockout in the interests of justice, in light of the fact that the courts have also been closed and no eviction actions are being heard.
For the small handful of matters where a Judgment of Possession had been entered prior to the Court closure, it was clear what would need to happen before a lockout could occur. However, for the vast majority of cases that had not been heard yet by the Court, there was no mechanism in place for getting emergent matters scheduled for trial so that a judgment for possession could be issued and a lockout could be performed. For 4 months after the enactment of Executive Order 106, the question of how to get an emergent eviction matter to trial was a mystery that the courts would not solve. However, on July 28, 2020, the New Jersey Courts issued “Directive 20-20,” which answered several critical questions, including the procedure for requesting an emergent hearing.
In Section 3 of Directive 20-20, the Court references the fact that Plaintiffs (Landlords) can seek a Landlord Tenant trial based upon emergent circumstances. In the Directive, the Court outlined the following circumstances, which may constitute an emergency:
- Disorderly Tenant
- Willful or Grossly Negligent Destruction of Rented Premises
- Abating Housing or Health Code Violations
- Occupancy as consideration of employment (e.g.; termination of superintendent)
- Criminal Activity
- Human Trafficking
While the Court set forth that the above list was not meant to be exclusive, the Court has made it clear in this bulletin that non-payment of rent is not considered to be an emergent circumstance. As far as the Courts are concerned, anyone who is in the business of being a landlord, regardless of the size of the portfolio, has understood that there are financial risks inherent to all businesses, and that during a pandemic; many businesses will suffer financial setbacks. No matter how egregious the non-payment is, those cases will not be scheduled for trial until the courts re-open.Procedure for Scheduling an Emergent Eviction Proceeding
In the event that emergent circumstances do exist for the scheduling of a landlord tenant proceeding, below are some procedural issues to keep in mind:
- In New Jersey, all evictions that are based upon reasons other than non-payment of rent require the service of certain pre-suit notices prior to filing an eviction complaint. The timing and the content of these Notices will vary greatly depending on the cause for eviction. But it is crucial that all required pre-suit notices are served prior to filing the eviction complaint.
- After the service of all necessary notices, the eviction complaint can be filed. Under ordinary circumstances, we would have expected that the eviction hearing would have been scheduled within about 4 weeks of the filing of the eviction complaint. However, since the Courts are closed, additional steps are required to get an emergency hearing.
- The next step in this process is to file a Motion and an Order to Show Cause, requesting a trial on an emergent basis. The Court will then either rule summarily “on the papers” as to whether a hearing is necessary, or the Court will schedule a hearing for the Plaintiff to argue as to why the matter requires a trial in the Interests of Justice.
- If the Court concludes that a trial is necessary in the Interests of Justice, the next step will be for the Court to schedule the trial, which will usually occur within a few weeks of the first hearing.
The above procedure for evicting tenants in the Interests of Justice is not difficult, but it is tedious. Each emergent eviction matter requires a Motion and 2 hearings. Please keep in mind that the Court buildings are still closed to the public, and therefore, almost all hearings will be conducted “virtually” either by computer or phone. You should also anticipate that the Courts in some counties are going to be more receptive to hearing emergent evictions than other counties. Accordingly, before starting this process, we will speak with you about the allegations as well as the likelihood of success of emergent eviction. Should you have any questions, please feel free to contact our office.