Residential Evictions: What Tenants Need To Know – August 2021 – JD Supra

As of August 6, 2021

LOCKOUTS

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

Maybe. As explained below, New Jersey is winding down the state eviction moratorium, while expanding the state’s rent relief programs. The state eviction moratorium that has been in place since March 19, 2020 was modified by a new law enacted on August 4, 2021. As a result of the new law, some households are no longer protected by the state eviction moratorium. As explained in detail below, whether you are protected depends on your household income level and the reason an eviction complaint was filed against you. Even if you are no longer protected by the state moratorium, you may still be protected by the federal eviction moratorium.

  • The State Eviction Moratorium

On March 19, 2020, New Jersey Governor Philip Murphy issued Executive Order 106, which suspended evictions throughout the state. As a result of this “eviction moratorium,” except in rare circumstances, no tenant was allowed to be removed from his or her home as a result of an eviction proceeding. The moratorium did not stop court proceedings; instead, it prevented lockouts and removals.

On August 4, 2021, the Governor signed a new law and issued Executive Order 249 that winds down the eviction moratorium for some households while bolstering financial assistance for renters and landlords in need. Under the new law, you may be protected from being evicted or removed from where you are living for past due rent that accrued between March 1, 2020 and either August 31, 2021, or December 31, 2021, depending on your household income. You still owe the rent that was due during this time period, and your landlord can sue you for a money judgment to collect the amount of back rent that you owe. However, if you are eligible and submit the required Income Self-Certification Form to the court, you cannot be evicted for failure to pay this rent.

The new law is complicated and provides different protections based on household income levels. To determine whether your household benefits from these protections, you should complete the Income Self-Certification Form available at https://covid19.nj.gov/renter. This guided Income Self-Certification Form will tell you what protections discussed below you may qualify for and how to obtain this relief. It will also provide information on how to apply for rental assistance.

If you have a pending eviction case against you and you know the docket number for your case (it appears on the first page of the eviction complaint), you can use the Income Self-Certification Form portal to submit the completed Form directly to the landlord-tenant court. If you do not currently have a pending eviction case, your Form will be retained in the database and will be submitted directly to the court if a case is filed against you so that the court knows that you are protected from eviction.

You should complete the Income Self-Certification Form online as soon as possible, whether or not your landlord has filed an eviction action against you. If you are not able to do so online, you may call 609-490-4550 for assistance. Additional questions about the Income Self-Certification Form may be addressed and answered here.

Under the new law:

  • If you are in a household with a combined income at or below 120 percent of the area median income (“AMI”) for your county, you are protected from eviction for nonpayment of rent, habitual late payment of rent, or failure to accept a rent increase that accrued fromMarch 1, 2020, through August 31, 2021. Any eviction complaint filed against you relating to rent owed from this timeframe must be dismissed once you submit the required Income Self-Certification Form to the court in which the eviction complaint was filed.

    Go to https://covid19.nj.gov/renter to determine whether your combined household income qualifies you for this protection and to complete and submit the required Income Self-Certification Form.

    • If eligible, your landlord can never evict you for rent owed fromMarch 1, 2020, through August 31, 2021; they can only obtain a monetary judgment against you for the amount of rent owed.
    • However, if you owe rent that accrued before March 1, 2020, or after August 31, 2021, the moratorium will expire for you on August 31st and your landlord can move forward with a lockout after that date.
  • If you are in a household with combined income of less than 80 percent of the AMI for your county, you are protected from eviction for nonpayment of rent, habitual late payment of rent, or failure to accept a rent increase that accrued from March 1, 2020 through December 31, 2021 if you certify on the Income Self-Certification Form: (1) your income level; (2) that you suffered hardship due to COVID-19; and (3) that you have applied for rental assistance for which you are eligible. If there is a pending eviction complaint against you, it must be dismissed once you complete and submit the required Income Self-Certification Form.

    Go to https://covid19.nj.gov/renter to determine whether your combined household income qualifies you for this protection and to complete and submit the required Income Self-Certification Form.

    • If eligible, your landlord can never evict you for rent owed from March 1, 2020 through December 31, 2021; he can only obtain a monetary judgment against you for the amount of rent owed.
    • However, if you owe rent that accrued before March 1, 2020, or after December 31, 2021, the moratorium will expire for you on December 31st and your landlord can move forward with a lockout for rent that accrued outside the March 1, 2020 through December 31, 2021 period.
  • Unless you fall under one of the above categories, you are no longer protected from eviction or removal under the state moratorium. This means that, effective immediately, a lockout can occur when a court issues an order granting your landlord possession of the residence (this is called a judgment for possession). This can occur :
    • If your landlord is trying to evict you for reasons other than nonpayment, late payment, or failure to pay a rent increase.
    • If your income is more than 120 percent of AMI, you can be evicted for any rent that you owe.

As described below, however, you may still be protected under the federal eviction moratorium.

  • The Federal Eviction Moratorium

If you completed the New Jersey Income Certification Form (https://covid19.nj.gov/renter) and you are protected from eviction through December 31 under the state moratorium, you can ignore the federal eviction moratorium order described below. Other individuals should consider whether they qualify for protection under the federal eviction moratorium, which prevents lockouts through October 4, 2021.

On August 3, 2021, the federal Centers for Disease Control and Prevention (CDC) issued an order that offers protection to tenants who meet the following requirements:

  1. You live in a county experiencing a substantial or high rate of community transmission level as defined by the CDC;
  2. You meet one of the below income requirements:
    • In 2020 or 2021, you earned (or expect to earn) less than $99,000 as an individual tax filer or $198,000 as a joint tax filer;
    • You received a stimulus check (Economic Impact Payment) in 2020 or 2021;
    • You were not required to report any income to the IRS in 2020; or
    • You are receiving any of the following benefits: Supplemental Nutrition Assistance Program (SNAP); Temporary Assistance for Needy Families (TANF); Supplemental Security Income (SSI); or Supplemental Security Disability Income (SSDI).
  3. You have one of the below qualifying reasons for not paying rent:
    • Your household income has gone down substantially;
    • You have been laid off from work;
    • Your work hours or wages have been cut; or
    • You have extraordinary out-of-pocket medical expenses.
  4. You have used your best efforts to obtain all available government rental assistance.
  5. If you were evicted, you would have no other available housing options, so you would probably become homeless, have to move to a homeless shelter, or have move in with others who live in close quarters.

To check if you qualify for eviction protection under the CDC order, you can contact the US Department of Housing and Urban Development (HUD) at (800) 569-4287 or go to https://www.hudexchange.info/programs/housing-counseling/rental-eviction/ to get contact information for a local housing counselor.

For tenants who seek to qualify for eviction protection under the federal moratorium, the CDC has provided an Eviction Protection Declaration in many languages to complete and provide to their landlords.

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. The New Jersey Attorney General has issued guidance to law enforcement on their obligations in responding to illegal lockouts. You can show this to police who may not understand their role.

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. Even if you are eligible for protection from eviction under the new state law, your landlord will always be able to file an action for money damages against you for any rent that you owe.

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. 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. There is substantial government funding available to assist tenants struggling to pay their rent.

CVERAP II funding. The New Jersey government is providing emergency rent relief using federal dollars through its COVID-19 Emergency Rental Assistance Program Phase II (CVERAP II). The NJ Department of Community Affairs (DCA) is responsible for administering this lottery-based program and began accepting applications on March 22, 2021. CVERAP II remains open, and the website for submitting applications is here. This site has the most updated information on the CVERAP II program. Here are the basics:

Who is eligible? New Jersey households who:

  • Qualify for unemployment or have experienced a significant reduction in household income, incurred significant costs, or experienced a financial hardship due directly or indirectly to COVID-19 outbreak; and
  • Demonstrate a risk of experiencing homelessness or housing instability; and
  • Have a household income at or below 80 percent of the area median.

Assistance is available to eligible households regardless of the immigration status of the household members, and such assistance will not create barriers for immigrants seeking to obtain legal status.

Who can apply? Tenants or landlords with tenants’ consent.

When can I apply? Starting at 9 a.m. on Monday, March 22. The website for submitting applications will be open 24 hours a day after that date, until the state has received an adequate number of pre-applications to distribute all available funds. The state will publish a notice when the application period will close.

How do I apply? Go to https://njdca.onlinepha.com during the open enrollment period and follow the instructions on the home page to submit a pre-application. You must apply online at this site. No paper applications will be accepted. You must have an email address to apply. If you have a disability, limited English proficiency, or limited internet access, you can call 609-490-4550 for help. A friend, family member, or organization can also help you apply. You may also be able to get help from certified HUD housing counselors through Housing Help NJ.

What assistance is available? Rental assistance is available for up to 12 months, with a possible 3-month extension. Unpaid back-rent (retrospective to March 13, 2020) will be paid first, with the remainder available to cover future rent up to the 12-month (or in some cases 15-month) cap.

How will recipients be chosen? By computerized lottery. Every pre-application submitted during the open enrollment period will have an equal chance of being selected.

Can I apply if I have or have had other rental assistance? Yes, but it seems the state seeks to avoid duplication by permitting a household to receive only one type of assistance for any given month.

Can my landlord refuse to cooperate or accept the funds? No. It is a violation of NJ Law Against Discrimination for a landlord not to accept payments or complete the necessary paperwork.

What is Nan McKay & Associates? Nan McKay & Associates is the contractor working with the state to implement this program. If you receive communications from Nan McKay, respond!

Eviction Prevention Program funding. The law enacted on August 4, 2021 creates a new Eviction Prevention Program that provides $750 million of rent relief to New Jersey residents who are unable to pay their rent because of pandemic-related financial hardship. This program will be administered by DCA and is intended to supplement CVERAP II. Eligibility criteria are similar to CVERAP II, though assistance through this program is available to households with higher income levels (up to 120 percent of AMI). Beneficiaries will be required to certify their household’s current income once every six months using a brief form to be developed by DCA. The law requires DCA to begin accepting applications for the program by August 31, 2021.

Other rental assistance. The new law requires DCA to establish an Office of Eviction Prevention by October 4, 2021. Among other responsibilities, the Office is charged with compiling, publicizing and updating information relating to all federal, state, local, and other sources of financial assistance for residential tenants facing eviction. Until the Office of Eviction Prevention’s website is up and running, you can check the DCA website for 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.

Can my landlord increase my rent during the COVID crisis?

Maybe. 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 until the expiration of Executive Order 103 (in which the Governor declared a Public Health Emergency and State of Emergency) in the 36,000 rental units the agency oversees. While the Governor has now declared an end to the Public Health Emergency, the State of Emergency is still in effect. It therefore appears that the NJHMFA rent freeze remains in place. After the State of 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, 2020 and will last up to two months following the end of Newark’s declared State of Emergency.

COURT PROCEEDINGS

Are the courts accepting cases that landlords file against tenants?

Yes. Landlords are permitted 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.

Is the court holding eviction trials?

Right now, eviction trials are only occurring in emergency cases, but trials in all landlord-tenant cases will resume on September 1, 2021. The only trials involving residential evictions that are currently taking place are for emergencies. Under the order, nonpayment of rent does not constitute an emergency “except in the case of the death of the tenant.”

On July 14, 2021, the New Jersey Supreme Court issued a Notice and series of Orders announcing changes to the landlord-tenant process. The Court indicated that trials in all residential landlord-tenant cases will likely resume on September 1, 2021.

Under the new process, most court conferences and trials will be held remotely (by videoconference or telephone). If you do not have access to the technology or equipment necessary to participate in a remote proceeding, you can go to your county courthouse and use a “technology room.” You can also call the court and ask to appear in-person.

Is the court holding settlement conferences? Do I have to attend them?

Yes, if you receive a notice for a settlement conference you must attend. On July 1, 2021, the New Jersey Supreme Court ordered mandatory settlement conferences for pending landlord-tenant cases. Most settlement conferences will be held remotely. The July 1 Order is a significant change from a prior order that said settlement conferences were voluntary.

The July 1 Order is currently in effect and requires tenants to participate in the settlement conference or risk having a default judgment entered against them if they do not show up. If both parties show up, a settlor will assist the parties in reaching a settlement agreement. If an agreement cannot be reached, the court will schedule a trial. If you receive a notice from the court directing you to appear at a mandatory settlement conference by telephone or video, you should:

  • Remember that you must participate in the settlement conference at the scheduled time! If you do not show up, a judge will proceed to hear from only the landlord and you risk being evicted if the landlord proves his/her case.
  • You do not have to settle your case at this conference. If you cannot reach an agreement with your landlord, the court will schedule a trial for when the courts start holding eviction trials again.

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, or charging fees related to 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.

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.

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.

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!).

ELECTRICITY, GAS, WATER

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

No, but the utility moratorium has ended and shut offs may occur for some residences as of January 1, 2022. Executive Order 229, which suspended residential utility and water shutoffs, ended on June 30, 2021. The Governor announced a state-ordered “grace period” through December 31, 2021 that will continue many of the protections of Executive Order 229 (such as requiring cable and telecommunications providers to offer specified payment plans to their customers, prohibiting utility companies from cutting customers off so long as they make timely payments under such plans, and protecting households with residential internet service accounts currently being used by school-aged children for educational purposes from disconnection).

The grace period until December 31, 2021 is intended to give utility customers who are behind in their payments time to enroll in payment assistance plans. The end of the grace period will fall during the state’s annual winter utility service shutoff ban, which protects certain vulnerable families from utility shutoffs from November 15 to March 15 each year.

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.