Residential Evictions: What Tenants Need to Know – UPDATED January 2020 #2 – JD Supra

LOCKOUTS

Can I be locked out of my home during the COVID-19 emergency?

No. Two different government orders prevent lockouts at this time.

1. The State Order

On March 19, 2020, New Jersey Governor Philip Murphy issued Executive Order 106, which suspended evictions throughout the state. This is called an “eviction moratorium,” and it means that, except in rare circumstances, no tenant may be removed from his or her home as a result of an eviction proceeding. The state eviction moratorium will last until two months after Governor Murphy declares an end to the COVID-19 health crisis. The Governor has extended the official public health emergency several times, most recently through Executive Order 215, which will expire on February 19, 2021. Unless the Governor extends the emergency again, or ends it early, the eviction moratorium will therefore last at least until April 19, 2021.

The state eviction moratorium does not affect what rent is due. Tenants still owe the rent. The moratorium also does not stop court proceedings; instead, it prevents lockouts and removals. The New Jersey Supreme Court controls court proceedings related to eviction. More information is below.

2. The Federal Order

Note that on September 1, 2020, the federal Centers for Disease Control and Prevention (CDC) issued an order that prevents residential lockouts for some residential tenants. On December, 27, 2020, the Consolidated Appropriations Act of 2021was signed into law, extending the CDC’s eviction moratorium to January 31, 2021. In response to urging by President Biden on his first day in office, the CDC announced that it was extending the moratorium through March 31, 2021. The CDC has issued FAQs interpreting the order. New Jersey tenants can generally ignore the CDC order for now because the state eviction moratorium, which is more protective than the CDC order, controls.

What if a lockout notice or warrant of removal has already been issued?

The state moratorium applies to all pre-existing orders for removal. Any previously issued order for removal is suspended, and you cannot be removed from your home during the moratorium.

What if I live in a hotel/motel? Can I be evicted while the State Order is in place?

Maybe. The state order permits a hotel or motel to evict a “transient guest or seasonal tenant.” Longtime hotel and motel residents, along with many others, are not considered “transient” or “seasonal,” however, and therefore remain protected from eviction under the Order. In general, residents cannot be evicted if they “have no permanent housing to which they may safely or lawfully return and live at a hotel or motel on a continual basis.” Under Administrative Orders 2020-08 and 2020-09 (issued by the State Director of Emergency Management on April 4 and April 24, 2020), the following hotel and motel residents are generally protected from eviction:

• those who are part of state initiatives aimed at getting people out of group shelters;
• those supported by a governmental housing assistance program;
• health-care workers who need a temporary place to stay;
• homeless people;
• individuals affected by domestic violence; and
• those staying in hotels or motels in compliance with a court order.

Others may be protected as well. To discuss your individual circumstances, contact a legal services organization such as Legal Services of New Jersey, Volunteer Lawyers for Justice – New Jersey, Community Health Law Project, Essex County Legal Aid Association, or City of Newark Office of Tenant Services.

What if my landlord locks me out illegally?

It is a crime for your landlord to lock you out. Under New Jersey law, only the courts can order evictions, and only government officials can remove you from your home. If your landlord locks you out, call the local police. They are required to help you get back into your home. If they tell you this is a “civil” matter that doesn’t involve them, ask them to look at this statute: N.J.S.A. 2C:33-11.1.

What happens when the eviction moratoria end?

Local officials will resume removing tenants who are subject to final court orders of eviction.

RENT PAYMENTS

Do I still need to pay my rent?

Yes. Rent is still due, and you should pay if you can. If you do not pay, your landlord can still demand the rent and file an action against you in court (see below). If you need guidance on how to address your rent situation with your landlord during this time, you can call the New Jersey Housing and Mortgage Finance Agency for free counseling over the phone. Visit https://njhousing.gov/foreclosure for a list of counselors by county.

If I can’t afford to pay my rent and fall behind, will I still owe the money?

Yes. Any payments you miss now will become back-rent that you owe. One way or another, you will probably have to pay later whatever you cannot pay now, or you will ultimately face possible eviction. If you get assistance from the government or a nonprofit in paying the rent, you will not owe what is paid on your behalf.

Is rental assistance available?

Yes, but we are waiting for information on how tenants can apply for this assistance. The Consolidated Appropriations Act of 2021 provides $25 billion in federal emergency rental assistance, of which an estimated $591,000,000 will be allocated to New Jersey residents. A summary of the section on emergency rental assistance is here. We don’t yet know who will be responsible for administering the funds in New Jersey (the state, counties, or certain municipalities with high populations), or what the process will be for applying for and distributing these funds to eligible households.

Who is eligible? A household is eligible for emergency rental assistance if:

• 1 or more individuals in the household
  1. has qualified for unemployment benefits; or
  2. attests in writing that he or she has experienced a reduction in household income, incurred significant costs, or experienced other financial hardship due, directly or indirectly, to the pandemic; AND
• 1 or more individuals in the household demonstrates a risk of experiencing homelessness or housing instability, which can include a past due utility notice, a past due rent notice, an eviction notice (whether or not your landlord has filed a complaint in court), living conditions that are unsafe or unhealthy, or other evidence of risk identified by the administrator of the funds; AND
• the household income is below 80% of the area median income (AMI) (this figure depends on the county where you live and can be found in the FY2020 income limits for your county available here). Your household income will be based on either your total household income in 2020 or your monthly income at the time of application. If you are relying on monthly income, your eligibility will be re-determined every three months.

These funds are available to eligible households regardless of the immigration status of the household members. Such assistance will not count in determining whether someone is a “public charge” for purposes of eligibility for immigration relief.

The states and localities administering the funds must ensure, if possible, that assistance provided under the Act is not “duplicative” of other federally funded rental assistance provided to the household. The Treasury Department has issued guidance stating that a federally subsidized household “may receive ERA [emergency rental assistance], provided that ERA funds are not applied to costs that have been or will be reimbursed under any other federal assistance.” However, if an eligible household receives a subsidy that is adjusted based on household income (e.g., a Section 8 voucher, public housing, or project-based rental assistance), the household “may not receive ERA assistance.”

Note that any emergency rental assistance received under this law will not be treated as “income” for purposes of determining your eligibility for a housing subsidy or any other federal assistance program or benefit.

Who can apply? Tenants who live in eligible households can apply for funds. Landlords can also apply for rental assistance on behalf of the tenant, but they must obtain the tenant’s consent and signature on the application. If assistance is provided, landlords must provide the tenant with documentation of the grant. Any payments received by the landlord must be used to satisfy the tenant’s rental obligations.

How do I apply? We still do not know who will administer the program in New Jersey or how/where to apply for this assistance. We will update these FAQs as that information becomes available.

Do the funds go to me or my landlord? If financial assistance is granted for rent or home energy costs, the entity administering the rental assistance must make payments directly to landlords or utility companies on behalf of tenants and provide tenants with proof of such payments. The federal law provides that, if a landlord or utility company refuses the money, the funds will go directly to the tenant who will pay the rent or utility bill. In New Jersey, however, the Law Against Discrimination prevents a landlord from refusing to cooperate with agencies offering rent subsidies or declining such subsidies. Tenants should report any such refusals to the Division on Civil Rights.

How much can I apply for and how must the rental assistance be used? These funds can be used to pay for back and forward rent, utilities and home energy costs, and other housing expenses that were incurred due, directly or indirectly, to the pandemic. Rental assistance can be provided for up to 12 months, except that the administrator can provide an additional 3 months “if necessary to ensure housing stability for a household.”

Households can receive only up to 3 months of forward rent, but they can reapply for additional assistance so long as they do not exceed the 15-month limit described above. If there are rental arrears, funds for forward rent can only be given if the administrator has provided assistance to reduce the amount of rental arrears.

Other rental assistance. In addition, the Department of Community Affairs (DCA) posts summaries of rental assistance programs, and you can use the DCAid portal to see if you are eligible. The DCA website also offers some general answers to questions about rental assistance. To get financial counseling on meeting your rental obligations, check the website of New Jersey Housing and Mortgage Finance Agency, which lists free counselors in every county. If you fall behind on your rent payments, you can also try speaking with your landlord to work out a payment plan to avoid having an eviction action filed against you. For additional resources, try calling 2-1-1.

Can I use my security deposit to cover some of the rent I owe?

Yes. On April 24, 2020, Governor Murphy issued Executive Order 128, which allows tenants to request in writing (including by email or text) that their landlords apply their security deposits to the rent they owe during the Public Health Emergency and for up to 60 days afterwards. The landlord must comply with such a request. If the tenant causes damage to the apartment (beyond ordinary wear and tear), the landlord may require the tenant to pay for that damage if and when the landlord would otherwise have been entitled to recoup the cost from the security deposit. If the lease is renewed, the landlord may also require the tenant to post a new security deposit either six months after the end of the Public Health Emergency or when the lease is renewed, whichever is later.

Can my landlord increase my rent during the COVID crisis?

Maybe. So far, the state government has not banned rent increases during the crisis. In the absence of statewide protection, tenants retain whatever protections may already have applied, including lease provisions and rent control ordinances, which normally permit rent increases only once a year.

In addition, some tenants have special protections:

• On April 16, 2020, Governor Murphy announced that the New Jersey Housing and Mortgage Finance Agency (NJHMFA) had voted to prohibit rent increases for the duration of the Public Health Emergency in the 36,000 rental units the agency oversees. After the emergency ends, landlords in NJHMFA-regulated properties may raise rents up to 1.4% on 30 days’ notice to tenants.
• On May 18, 2020, Newark’s Mayor Baraka announced a temporary moratorium on all rent increases for tenants living in properties covered by the Newark Rent Control Ordinance. Newark’s prohibition on rent increases is retroactive to April 1 and will last up to two months following the end of Newark’s declared State of Emergency.

COURT HEARINGS

What about court? Is the court holding eviction trials?

Only in emergency cases. On July 24, 2020, the New Jersey Supreme Court ordered that most trials in landlord-tenant court continue to be “suspended until further notice.” The order makes clear, however, that trials may proceed when the court determines that there is an emergency. Under the order, nonpayment of rent does not constitute an emergency “except in the case of the death of the tenant.” The Administrative Office of the Courts issued a directive on July 28 that includes model papers for emergency landlord-tenant filings. Check the New Jersey Courts website for further updates.

Are the courts accepting cases that landlords file against tenants?

Yes. The July 24 order allows landlords to file eviction complaints against tenants, even though trials will be held only in emergencies at this time. You may therefore receive an eviction complaint in the mail and/or posted at your residence.

Are the courts holding proceedings other than trials?

Yes. The July 24 order instructs the landlord-tenant courts to schedule remote “intake and pretrial/settlement conferences.” The July 28 directive instructs the courts on how to implement this process. You may receive a notice from the court directing you to appear at a “Pretrial/Settlement Conference,” by telephone or video, to discuss settlement of a case your landlord has filed against you. If you get a notice like this, you should:

Does federal law prevent my landlord from filing an eviction case against me?

Maybe. The federal CARES Act prohibited covered landlords (see below) from filing an eviction complaint for nonpayment of rent between March 27 and July 25, 2020. If a landlord covered by the CARES Act filed such an eviction complaint during this period, the tenant can request that the case be dismissed. A dismissal will not stop the landlord from filing a new complaint, but the landlord must first give the tenant 30 days’ notice (see below).

Landlords covered by the CARES Act include:

• Those who hold a federally backed mortgage, such as a mortgage from Fannie Mae, Freddie Mac, or the Federal Housing Administration.
• Those who rent to federally subsidized tenants, including tenants who:
• live in public housing,
• have a Section 8 Housing Choice voucher,
• live in Section 8 project-based housing, or
• live in other types of federally funded housing, including, among others, certain housing programs for seniors, people with disabilities, people with HIV/AIDS, and people at risk of homelessness.
• The National Low Income Housing Coalition has constructed a searchable database of many (but not all) of the properties covered by the CARES Act.

After July 25, covered landlords who want to evict a tenant for nonpayment of rent must first serve the tenant with a notice giving the tenant 30 days to vacate. The CARES Act states that a landlord may not “require the tenant to vacate” the property until 30 days after giving the tenant a notice to vacate. In New Jersey, a landlord may not require a tenant to leave his or her home except through a court proceeding. Under the CARES Act, therefore, a covered landlord must give New Jersey tenants 30 days’ notice before such a court proceeding. In any case, a lockout cannot happen until the moratorium under the state order is lifted.

As noted above, the CARES Act ban on eviction filings by covered landlords expired on July 25. Tenants should know, however, that the CARES Act also prohibited covered landlords from charging fees (such as late fees or attorney’s fees) related to nonpayment of rent between March 27 and July 25. Tenants in covered properties do not owe such fees.

The CARES Act gives tenants additional protection if they live in a building with five or more units and the owner got permission to delay payments on a federally backed mortgage loan. In that case, the owner may not file an eviction action for nonpayment of rent, or charge late fees related to nonpayment of rent, during the period when the owner is allowed to delay making mortgage payments. When this period ends, the owner must give tenants 30 days’ notice before taking the tenant to court to get an order requiring the tenant to vacate the property (but the lockout cannot happen in any case until the moratorium under the state order is lifted).

The state Supreme Court has required landlords to certify their compliance with the CARES Act, and the Administrative Office of the Courts issued a form certification as Attachment 6 to its July 28 directive.

What if my landlord has already started an eviction proceeding against me in housing court and I have an upcoming court date?

While landlord-tenant court is suspended, you should not go to court, and you will not be penalized for not going to court. The court may still send you a notice to appear at a telephone- or video-conference, however (see above).

Can I still get emergency repairs in my apartment?

You always have a right to safe and decent housing. If you have concerns about issues such as inadequate heat, exposure to lead, infestations, leaks, crumbling walls and ceilings, or other hazardous conditions, you should ask your landlord in writing to make repairs (keep a copy). If repairs are not made quickly, you can call 2-1-1, contact the state Bureau of Housing Inspection, or call your municipality to report the problem. Due to closures, enforcement agencies may be working with limited staff and it may take longer to get repairs or inspections. As an alternative, if you can manage the repairs on your own, and your landlord fails to respond to your requests for repairs, you can make them or pay someone to make them. You can then withhold the money you spent on repairs from your rent (save all receipts for the repairs!).

SUBSIDIZED TENANTS

Can my landlord file an eviction action against me if I live in public housing or have a Section 8 Voucher?

Generally, yes. Your landlord can file an eviction action unless your building has five or more units and the owner has permission to delay payments on a federally backed mortgage loan. See discussion of the federal CARES Act, above. Even if your landlord files an eviction action, however, the case will not go to trial except in unusual circumstances. See discussion of court filings, above.

Is the Department of Community Affairs still open for business?

Yes. The Department of Community Affairs (DCA) housing assistance programs continue to operate and do all their basic work, including paying rent to landlords and setting the amount of rent subsidized tenants must pay. DCA encourages subsidized tenants to use the online portal at assistancecheck.com to submit documents, or to send documents through the mail (keep copies!). Subsidized tenants who have questions can contact the field offices or use the main customer service line: 609-292-4080 or customer.service@dca.nj.gov. DCA has announced that it has taken a number of actions to meet the ongoing needs of its clients and to curb evictions and homelessness during the state of emergency. For example, DCA has suspended termination of subsidies in the Section 8 Housing Choice Voucher and State Rental Assistance Programs, unless the tenant has engaged in violence or threats against others. DCA is also accepting through its online portal interim income re-certifications for tenants who have lost income because of the pandemic.

ELECTRICITY, GAS, WATER

Can my utilities, water, phone, and internet be shut off during the COVID-19 crisis?

No. As of March 13, 2020, New Jersey’s electric and gas utilities voluntarily suspended utility shut-offs. On October 15, 2020, the Governor’s Office issued Executive Order 190. This Order suspends residential utility and water shutoffs until March 15, 2021, requires resumption of service that has been discontinued, and forbids the imposition of late fees arising during the emergency period. In addition, the Order requires cable and telecommunications providers to check with existing customers to see if school-aged children are using the internet service for educational purposes. If so, the provider may not terminate the service until March 15, 2021. In all other cases, the provider must offer an interest-free payment plan and may not disconnect service if the customer agrees to such a plan.

Do I still have to pay for utilities, water, phone, and internet?

Yes. You still have to pay whatever electric, gas, water, phone, or internet bills you normally pay. If you cannot pay now, you will have to pay later. DCA offers low-income tenants assistance with some utility bills; you can call the customer service number on your utility bill, or look up the number here, to try to work out a payment plan; or you can check the website of the Board of Public Utilities for a list of agencies that offer assistance.