New Jersey Landlord-Tenant 101: Pre-Tenancy Issues

I am periodically contacted by New Jersey landlords with what I call “tenancy” questions concerning a current or prospective residential tenant, e.g., "what happens if the Landlord Registration Statement was not properly filed/served/posted," "how should a tenant’s security deposit be handled," "can this tenant be evicted," and "what should be done with a tenant’s property after eviction."  I am always happy to add my two cents, as making informed decisions can help a landlord to maximize the value of their property by avoiding costly mistakes.  I thought it might be helpful to cover some (not all) of the basic questions and related topics in a series of blog posts.  First up: pre-tenancy issues.

PRE-TENANCY ISSUES

 

QIs a written lease required to create a landlord-tenant relationship?

 

A:  Although admittedly rare, an oral “lease” for residential space can be enforceable if it satisfies basic contractual requirements, e.g., offer, acceptance, consideration.  As such, it is important for a landlord to be careful when talking with a prospective tenant and accepting deposits.  When “oral lease” cases make it to court, the court looks to the intent and actions of the parties.  (Keep in mind that one party’s occupancy of real estate owned by another usually but not always creates a landlord-tenant relationship, e.g., sale/lease-back may not qualify as landlord-tenant relationship.)  Needless to say, a written lease is preferable and highly recommended.

 

Q:  Does a landlord have an obligation to accept an applicant as a tenant?  In other words, is a landlord forced to accept an applicant who just doesn’t “feel” right?

 

A:  A landlord in New Jersey may be as discerning as it wishes when selecting tenants, as long as it does not discriminate based on "race, creed [religious beliefs], color, national origin, ancestry, sex, marital status, domestic partnership status, familial status [children], affectional or sexual orientation, mental and physical disability, nationality, or source of lawful income," according to New Jersey’s Law Against Discrimination.  Interestingly, a landlord can screen tenants based on income-levels, but cannot deny tenancy based on the source of the lawful income, e.g., Section 8 assistance.  Landlords can and should do background checks and screen for creditworthiness, as long as it is done consistently to all applicants and not as a pretext to deny tenancy based on a discriminatory basis.

 

QUnder New Jersey law, is there any information that must be provided to a tenant and what happens if it is not provided?

 

ANew Jersey statutes require a landlord to provide the following information/notice to a tenant at or around the start of the tenancy:

 

  • Under N.J.S.A. 46:8-19, a landlord must provide certain information concerning how and where a tenant’s security deposit is being held within 30 days of receiving the deposit. [New Jersey’s Security Deposit Act will be discussed in greater detail during the next post in this series.]
  • Under N.J.S.A. 46:8-28, except for 2-unit/owner-occupied rental properties, a landlord is required to file with either the local municipality (1-unit; 2-unit/non-owner occupied) or the Department of Community Affairs (all other cases) what is commonly referred to as a Landlord Registration Statement (a/k/a a Landlord Identity Statement), which generally identifies the owner of the premises, the owner’s local agent, a maintenance contact, an emergency contact, and those holding mortgages on the premises.  Under N.J.S.A. 46: 8-29, a copy of the Statement must be provided to a tenant at time of each new tenancy.
  • Under N.J.S.A. 46:8-39, a landlord with 10 or more units is obligated to provide a tenant with information regarding the availability of crime insurance and the location of applications for same within 30 days of occupancy.
  • Under N.J.S.A. 46:8-46, a landlord with more than 3 units available must provide a tenant at time of occupancy with a copy of the “Truth in Renting” booklet from the Department of Community Affairs, which generally sets forth the legal rights and responsibilities of tenants and landlords in New Jersey.

Under New Jersey’s Security Deposit Act, failure to provide the required notice in a timely manner enables a tenant to make written application for the security deposit (and interest) to be applied on account of rent due and the landlord cannot demand any additional security deposit.  Failure to provide the notice required under the remaining 3 statutes could subject a landlord to liability for civil penalties under New Jersey’s Penalty Enforcement Law as follows: $500.00 (Landlord Registration Statement), $200.00 (notice of crime insurance), and $100.00 (Truth in Renting booklet).  In addition, a landlord will not be entitled to a judgment for possession against a tenant unless/until the Landlord Registration Statement is filed/served/posted.

The next post in this series will discuss a landlord’s obligations under New Jersey’s Security Deposit Act.

We welcome all NJ "tenancy" questions!

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