To: New Jersey Law Revision Commission From: Marna L. Brown Re: Memorandum on Orderly Removal Issue Date: January 9, 2012 MEMORANDUM This memorandum primarily examines a specific issue raised by Roger S. Antao, Esq., of Antao & Chuang, i.e., whether proposed section 46A:18-4 should permit an order for orderly removal to be issued only after a warrant for eviction has been executed (or writ of possession exercised) (But also note the Postscript at the end of the memo.) As discussed in a general memorandum dated January 9, 2012, Judge Fast believes that the use of the order for orderly removal should not be restricted in this manner but should be available even after the warrant has been executed, i.e., the lock-out has occurred, if the tenant can demonstrate distressed circumstances and an equitable basis. Staff is advised that courts frequently grant orderly removal stays to tenants. The commonplace practice, though not now expressly provided for in the statutes, is supported by court rule, case law, and statutory inference. states: The court rule from which proposed section 46A:18-4 is derived, Rule 6:6-6b., Orders for Orderly Removal. An order for post-judgment relief, applied for on notice to a landlord pursuant to paragraph (a) of this rule, need not have a return date if the sole relief is a stay of execution of a warrant of removal for seven calendar days or less, but it shall provide that the landlord may move for the dissolution or modification of the stay on two days notice to the tenant or such other notice as the court sets in the order. This rule clearly contemplates post-judgment relief for a limited period that is different from a hardship stay as prescribed by statute. (The difference between the two forms of stay is discussed in the general memorandum dated January 9, 2012, which accompanies this memorandum and the other materials submitted to the Commission.) Rule 6:6-6b. provides, however, that the order for post-judgment relief need not have a return date if the sole relief is a stay of execution of a warrant of removal for seven calendar days or less... (emphasis added). Therefore, one could argue that orderly removal is intended to be available only when the warrant of removal (eviction) has not yet been executed. Other statutory provisions concerning eviction, and recent case law interpreting these provisions, support another conclusion. In addition to setting forth the requirements for issuance of a warrant of removal (eviction), current N.J.S. 2A:42-10.16 (part of what is known as The Fair Eviction Notice Act, P.L. 1974, c. 47), adopted in substantial part by proposed section 46A:17-4, gives the Special Civil Part jurisdiction to hear applications for lawful relief for up to ten days after execution of the warrant of 1
removal. 1 Although the term lawful relief is not defined in the statute, case law amplifies its meaning. The seminal case that discusses, generally, the types of post-judgment relief available to tenants, is Housing Authority of the Town of Morristown v. Little, 135 N.J. 274 (1994). In Little, our Supreme Court discussed the discretionary relief courts are enabled to provide tenants facing eviction, including hardship stays for which the court s power is derived from the Tenant Hardship Act (N.J.S. 2A:42-10.6) and motions to vacate the judgment of possession under Rule 4:50-1. The precise issue before the Little court was whether the Tenant Hardship Act restricts a court s power to vacate a judgment for possession on equitable grounds pursuant to Rule 4:50-1. The Housing Authority of Morristown had obtained a judgment of possession against the tenant for nonpayment of rent and a warrant of removal was issued. After the warrant of removal had been executed and the tenant had been evicted, the court issued a stay of the warrant and allowed the tenant to return to her apartment. The court then vacated the judgment pursuant to Rule 4:50-1 upon the tenant s payment of back rent. The appellate division reversed, holding that the Tenant Hardship Act limited a court s authority to vacate a judgment for possession and that the facts did not justify application of the court rule. Relying heavily on Housing Authority of Newark v. West, 69 N.J. 293 (1976) (which will be discussed below), the appellate division determined that a tenant cannot avoid a judgment for possession for nonpayment of rent by paying rent after that judgment has been entered. The Supreme Court reversed, noting the important distinction that exists between the statutory stay and a court s discretionary power to vacate a judgment, and holding that it found no evidence that the Legislature, in enacting the Tenant Hardship Act, intended to limit the ability of a court to vacate a judgment for possession for good cause. Supra, p. 290-294 (citing to Senate County and Municipal Government Committee Statement to Assembly, No. 3591, at 1 (1979)). The Supreme Court further determined that the equities warranted vacating the judgment in this case. The tenant, a single mother of five children, living in public assisted housing, on food stamps and AFDC benefits, had been one month behind in rent when the complaint to evict her was filed. She had been out of town trying to collect the rent money and arrived late to court on the return date of the order to show cause temporarily staying the execution of the warrant of removal. The court had already vacated the stay by the time she had arrived at the courtroom and the lock-out of the tenant and her children occurred later that afternoon. The same day the tenant offered the landlord $150 toward the rent arrears and promised to pay the balance the following Monday, but the landlord refused her offer. After she obtained a second order to show cause requesting that the judgment for possession be vacated and that she be permitted to move back in to her apartment, the court permitted her to re-enter her apartment pending 1 This section is not part of the Tenant Hardship Act, P.L 1957, c.110, as Mr. Antao states in his letter, but part of the Fair Eviction Notice Act, P.L.1974, c.47. 2
the hearing on her application. That same day, she offered the landlord all of the rent money owed but the landlord again refused to accept the back rent. Despite the landlord s argument that it did not wish to continue the tenancy because of complaints against the tenant and its belief that her apartment had been the site of drug activities, the lower court had vacated the judgment of possession upon the tenant s payment of all the rent. Noting that the current proceeding was for nonpayment of rent only, the lower court based its determination on the equitable grounds included in Rule 4:50-1-- the presence of the tenant s five minor children, the unavailability of suitable housing at the same rent, and the fact that public housing was involved. Looking at these equities, and the public policy considerations of public housing tenants (including the State s homelessness-prevention policies as reflected in other legislation), the Supreme Court stated that it was satisfied that the trial court had not abused its discretion in vacating the judgment for possession. It is important to note that the Little court made its determination on the basis of subsection f. of Rule 4:50-1, stating that (on pp.294-296): The nature of the exceptional relief afforded by Rule 4:50-1(f) requires courts to focus on equitable considerations in determining whether the specific circumstances warrant the unique remedy authorized by the Rule. Application of that subsection of the Rule to summary-dispossess proceedings is appropriate only in exceptional circumstances, and requires a trial court to weigh carefully all relevant evidence in determining whether the specific grounds advanced to support relief under the Rule are sufficient to override the strong countervailing interest favoring finality of judgments. We anticipate that the availability of relief under the Rule in summary-dispossess proceedings will be circumscribed, and that the reservoir of discretion afforded by the Rule will be exercised only in those circumstances in which the court s intervention is required to avoid an unjust result. Judge Fast argues that as Rule 4:50-1 f. may be used to support vacating a judgment after execution of the warrant of eviction (as was the case in Housing Authority of Morristown v. Little), so should an order for orderly removal be permitted to be used to enable the orderly removal of the tenant, without the payment of rent, after the warrant already has been executed. Mr. Antao argues that the Supreme Court in Little recognizes the court s statutory power to grant relief for up to ten days after the warrant of removal has been executed but that this power is derived from the Tenant Hardship Act which must be complied with, i.e., rent must be paid by the tenant and the other statutory requirements must be met. In fact, as already discussed, the lawful relief recognized by N.J.S. 2A:42-10.16 is part of The Fair Eviction Notice Act, not the Tenant Hardship Act. Moreover, by its choice of language, the Supreme Court in Little impliedly recognizes that the lawful relief permitted under N.J.S. 2A:42-10.16 may exist in more than one form. The court states: A form of relief frequently granted by the courts is a hardship stay of eviction. The courts statutory power to grant that relief derives from the Tenant Hardship Act, which authorizes the court having jurisdiction in the matter to stay the issuance of a warrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant will suffer hardship because of 3
the unavailability of other dwelling accommodations.. N.J.S.A. 2A:42-10.6 (emphasis added)) Pp. 281-282. The court does not expressly refer to an orderly removal in its decision, but notes a variety of discretionary relief available to a court. (Notably, although the Supreme Court in Little refers to the Tenant Hardship Act as enabling this discretionary relief (at p. 282), in fact, two of the cases cited, West and Metpark, Inc., refer to stays of warrants that were not based on authority from the Tenant Hardship Act.) Another Supreme Court case referred to by both Mr. Antao and Judge Fast is Housing Authority of Newark v. West, 69 N.J. 293 (1976). Mr. Antao cites the case for the holding that a trial court does not have unlimited discretion to stay a warrant of removal. Only in dicta does the Supreme Court recognize that a trial court has inherent discretion to stay the warrant for a reasonable time to permit a tenant in distressed circumstances to arrange for the tenant s voluntary removal from the premises. (Emphasis added.) Such a stay, by definition, Mr. Antao argues, would be inapposite after the removal ( eviction ) has already taken place. (p. 4 of December 1, 2011 letter to Commission.) Judge Fast refers to the same dicta, but to support his view that courts do have inherent authority to extend such a stay to tenants even after execution of the warrant where equity demands it and the tenant is in distressed circumstances. He also suggests that by virtue of R. 6:6-6b., the Court s determination is no longer dicta but an exercise of the Court s rulemaking power. 2 In West, upon upholding the appellate division s rejection of the lower court s imposition of a twenty-two month stay pending the tenant s monthly payments (@ $100 per month) of total rent arrearages in the amount of $2,199.00, the Supreme Court held that the lower court could not hold up issuance or stay the warrant for removal indefinitely, while also noting in dicta that: The foregoing is not to say that the court does not have inherent discretion, as district court judges have assumed for decades, to stay the warrant for a reasonable time to permit a tenant in distressed circumstances to arrange for his voluntary removal from the premises. The Supreme Court in West did not discuss whether a court s inherent discretion to permit orderly removal extends to a time period after the warrant already has been executed. However, it is difficult to imagine what, other than a hardship stay, is contemplated by the lawful relief that a court may grant to an applicant for up to ten days after execution of the warrant of removal as provided by N.J.S. 2A:42-10.16 if not an order vacating the judgment of possession, or an orderly removal. And in fact, 2 In fact, in West, the Supreme Court did not discuss either the Tenant Hardship Act or The Fair Eviction Notice Act. The Court s decision was based on the Summary Dispossess Act, N.J.S. 2A:18-53, et seq., and whether under that Act, a court has discretion to stay a warrant for removal or hold up its issuance for as long as may seem equitable to the judge. 4
Staff is advised that courts grant orderly removals, every day, both before and after tenant lock-outs. Regarding Mr. Antao s assertion that a trial court could theoretically grant a stay under 46A:18-4 even after execution of the warrant, thereby creating the eviction of the landlord and a do-over eviction of the tenant, (p. 4 of December 1, 2011 letter to Commission), Judge Fast advises Staff that there is no significant do-over. He states that although the execution of the warrant would have to be redone if the orderly removal is granted after a warrant/writ has been executed, as with the hardship stay, the orderly removal does not disturb the judgment. CONCLUSION There is sufficient authority to support orderly removal as one of the several types of lawful relief available to a tenant both before and after execution of the warrant of eviction. A statutory hardship stay is expressly provided for by statute and applies before the warrant is actually executed. (It has been incorporated in the draft final report as section 46A:18-1.) With the addition of section 46A:18-4, a statutory mechanism is proposed that will enable a tenant to obtain another kind of relief, i.e. orderly removal, which, as is currently the common practice, may be used either before or after execution of the warrant. Authority exists to support both uses, either before execution of the warrant, in accordance with Rule 6:6-6, or after execution of the warrant, in accordance with N.J.S. 2A:42-10.16 (now incorporated in the draft final report as section 46A:17-4). Staff recommends adoption of Judge Fast s approach to this issue. Either proposed section 46A:18-4 should remain as written or it should be revised to clarify that orderly removal may be imposed both before and after a warrant of eviction is executed. Judge Fast also suggests that language be added in the section comment to clarify that in the case of an orderly removal application sought after the warrant of eviction has been executed, the tenant will bear a more onerous burden of convincing a court to exercise its discretion in the applicant s favor. However, if the text of section 46A:18-4 is modified as suggested above, then it would make more sense for Judge Fast s proposed comment language to be added in the text and not in the section comment. POSTSCRIPT Staff would be remiss if this memorandum did not acknowledge and address, albeit briefly, two other issues raised by Mr. Antao. The first issue, which was already debated and considered by this Commission during the many months of deliberation on this report, is Mr. Antao s suggestion that section 46A:18-4 contain a provision for the disposal of the tenant s personal property. This, apparently, reflects current landlord tenant practice in the Essex County vicinage. See Exhibit C. to Mr. Antao s submission. According to the sample Order for Orderly Removal submitted by Mr. Antao, and consistent with Judge Fast s view, in Essex County, as a condition of the orderly removal, the personal belongings of the tenant that are left on the premises after enforcement of the warrant of possession are deemed to be abandoned. (Judge Fast 5
advises that in his orders, only tenant property that has no value is presumed abandoned.) 3 As the Commission will recall, it decided not to impose such a requirement as a condition of orderly removal. To do so would be imposing a waiver of the Abandoned Tenant Property Act, just amended in 2001. At the time of the discussion of this issue, Staff did not feel that the Commission was at liberty to make such a significant change to an Act that had been amended so recently. An excerpt from the February 2010 minutes that pertain to this issue is set forth in the footnote below. 4 Staff since has learned that other vicinages do not take the same view on this subject as does Essex County. For example, Middlesex County, when granting orderly removals, requires the landlord to comply with the Abandoned Tenant Property Act. Practitioners in Southern New Jersey counties have not even heard of conditioning orderly removal on a waiver of the Abandoned Tenant Property Act. In addition, although Judge Fast has argued passionately for this quid pro quo (as he calls it) for the benefit of landlords as a reasonable condition for the orderly removal, tenant advocates, with equal passion, have opposed tying orderly removal in any way to a waiver of a tenant s rights under the Abandoned Tenant Property Act. For these many reasons, Staff does not believe that waiver of the Act is a viable option and does not now recommend making it a condition of orderly removal. Finally, the third suggestion of Mr. Antao is that the label orders for orderly removal should be changed to orders for orderly eviction because removal is an archaic term. Judge Fast disagrees with this language change because orderly removal is not an eviction. Although throughout this revision, the Commission has replaced archaic terms with more updated terms, (including the terms warrant of removal with the terms warrant of eviction ), Staff also agrees with Judge Fast on this point. Changing the terms orderly removal to orderly eviction would only confuse both landlords and tenants without serving any constructive purpose. 3 Judge Fast writes that in cases that have come before him, even after the expiration of the 7 days, and if a tenant has not removed all personalty of any value and makes an additional application, landlords customarily and voluntarily agree to give tenants additional time to remove their property (although not to resume possession) because landlords do not want the personalty to remain in the apartment. 4 Judge Fast also said that all post-judgment relief is discretionary and that he has always imposed at least two conditions which were acceptable to both landlords and tenants: (1) finality to the order (unless judgment later shown to be void or the landlord does not honor first order for orderly removal); and (2) wavier of the protections for the abandonment of personal property (the order spells out that the court officer will be there at a specific date and time and any personal property that the tenant has that has no value may be removed by the landlord without the landlord bearing any responsibility for it). Mr. Cannel said Staff had difficulty harmonizing the statutory language with the Abandoned Property Act, which Staff did not feel at liberty to change. A battered couch, which may have no value to a landlord but some value to a tenant, presents a problem. Staff will attempt to draft around this issue. Excerpt from Commission meeting minutes of February 18, 2010. 6