Tenant Defenses to Evictions in New Jersey

In New Jersey, a landlord can evict a tenant for a variety of reasons. This article will focus on evictions and tenant defenses based on nonpayment of rent, disorderly conduct and damage to the rental unit property, and lease violations. For a full list of the reasons tenants can be evicted in New Jersey and the notice required for each reason, see the New Jersey Anti-Eviction Act (New Jersey Stat. Ann. § § 2A:18-61.1 and 61.2).

Notice Requirements for Evicting a Tenant in New Jersey

The New Jersey Eviction Law sets out all the rules and regulations landlords must follow to evict a tenant. The notice requirements for different types of eviction (for example, nonpayment of rent versus disorderly conduct) are slightly different.

Notice Requirements for Not Paying Rent

If a tenant does not pay rent, the landlord is not required to give the tenant any notice before proceeding with an eviction lawsuit (see New Jersey Stat. Ann. § 2A:18-61.2). As soon as the rent is late, the landlord can proceed with filing an eviction lawsuit.

However, the law also states that if a tenant habitually pays rent late, the landlord is required to give the tenant a written warning, called a "Notice to Cease." If the tenant still continues to pay rent late, then the landlord must give the tenant one month's notice, called a "Notice to Quit," before filing the eviction lawsuit (see New Jersey Stat. Ann. § § 2A:18-61.1(j) and 2A:18-61.2(b)).

Notice Requirements for Disorderly Conduct and Damage to the Rental Unit

A landlord can evict a tenant from a rental unit in New Jersey for engaging in disorderly conduct, defined in the statute as "destroy[ing] the peace and quiet of the occupants or other tenants" of the rental unit (see New Jersey Stat. Ann. § 2A:18-61.1(b)). Examples of disorderly conduct include playing music too loud or fighting with the neighbors. If a tenant engages in disorderly conduct, the landlord is required to give the tenant a written Notice to Cease first. If the tenant continues the disorderly behavior, then the landlord must give the tenant a three days' Notice to Quit before filing the eviction lawsuit (see New Jersey Stat. Ann. § 2A:18-61.2(a)).

If the tenant damages the rental unit, the landlord must also give the tenant a three-days' Notice to Quit before filing the eviction lawsuit. No written notice to cease is required for proceeding with an eviction based on damaging the rental unit (see New Jersey Stat. Ann. 2A: 18-61.2(a)).

Notice Requirements for Lease or Rental Agreement Violations

A landlord can evict a tenant for violating any portion of the lease or rental agreement. The landlord must first give the tenant a written Notice to Cease that details the violation (see New Jersey Stat. Ann. § § 2A:18-61.1(d) and (e)). If the tenant continues to violate the lease, the landlord must then give the tenant one month's notice, in the form of a Notice to Quit, before filing the eviction lawsuit (see New Jersey Stat. Ann. § 2A:18-61.2(b)). Examples of lease violations include having a pet when none are allowed, parking in an unauthorized parking space, or having unauthorized guests.

Process for Filing and Defending an Eviction Lawsuit in New Jersey

If the tenant does not move out of the rental unit within the proper time frame, the landlord can then proceed to file an eviction lawsuit. To begin the lawsuit, the landlord must file a complaint in the Office of the Special Civil Part Clerk of the county where the rental unit is located. The tenant will receive a copy of the complaint and a date and time for the hearing. If the tenant chooses to challenge the eviction, the tenant must appear at the hearing. The judge will only consider the testimony made at the hearing when deciding whether the eviction is valid. Once the judge hears from both the landlord and the tenant, the judge will make a final decision about whether to evict the tenant.

For more information regarding evictions, see the Grounds for an Eviction Bulletin published by the New Jersey Department of Community Affairs and the Landlord/Tenant Section FAQ maintained by the New Jersey courts.

Eviction Defenses for Tenants in New Jersey

It might not always be worth it for a tenant to challenge an eviction. If the tenant loses, the tenant might have to pay for the landlord's court and attorney's fees. The tenant could also receive a negative credit rating. The best option for the tenant might be to try to talk to the landlord and negotiate a deal outside the court system. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website mediate. com and the American Arbitration Association. The mediation faqs on the Nolo site provide more information on the subject.

That said, there are often situations when tenants have a good reason to fight an eviction. This section describes various legal defenses available to tenants in New Jersey who are facing eviction for nonpayment of rent or lease violations.

Landlord Used "Self-Help" Procedures to Evict Tenant

It is illegal for a landlord in New Jersey to try to evict a tenant without going to court. A landlord must win an eviction lawsuit and obtain a judgment from the court in order to evict a tenant. It is illegal for a landlord to force a tenant out of the rental unit in any other way, including changing the locks on the rental unit or turning off the utilities. This is often called a "self-help" eviction, and in New Jersey, this type of offense is called unlawful entry or detainer (see New Jersey Stat. Ann. § 2A:39-1). If a landlord tries to gain an unlawful entry into the rental unit, the tenant will likely be able to sue the landlord for damages. See the Nolo article Illegal Eviction Procedures in New Jersey for more information.

Landlord Did Not Evict Tenant Properly

A landlord must carefully follow all the procedures set out in the New Jersey state laws when evicting a tenant. When giving notice to the tenant, the notice must include essential information, such as the date the tenant must be moved out of the apartment and a statement that if the tenant fails to move, an eviction lawsuit will be filed against them. If the notice is lacking required information, the court will consider it invalid and the time frame for the tenant to move out will not begin running (see AP Development Corp. v. Band, 550 A. 2d 1220 (1988)). The landlord would have to fix the deficiency in the notice and give it again to the tenant before being able to proceed to the eviction lawsuit.

This defense does not stop an eviction entirely, if the eviction is justified. Once the landlord fixes the mistake, the eviction will proceed as normal. However, this defense will give the tenant more time to remain in the rental unit before being evicted.

Landlord is Evicting Tenant for Not Paying Rent

There may be a few legal defenses available to a tenant who is being evicted for not paying rent.

Tenant Has Paid Rent in Full

If the landlord has given the tenant a written Notice to Cease for paying rent late and the tenant pays the rent before receiving an eviction notice, then the landlord cannot proceed with the eviction. If the landlord has already filed the eviction lawsuit for nonpayment of rent, the tenant can pay the rent and all the court costs any time before the judge makes a final decision about the case (see New Jersey Stat. Ann. § 2A:18-55). If the tenant does this, the eviction proceeding will be dismissed.

Landlord Failed to Make the Utility Payment

If the landlord is responsible for paying the utilities for the rental unit and the tenant receives notice from the utility company that the payments have not been made, the tenant can pay the utility company the required amount and then deduct that payment from the rent (see New Jersey Stat. Ann. § 2A: 18-61.1(a)). As a defense to the eviction, the tenant can use evidence that the utilities would have been turned off if the tenant had not made the payment in place of the landlord.

Landlord Failed to Make Necessary Repairs

In New Jersey, landlords are required to provide safe and sanitary rental units. This means the rental unit must have heat, running water, electricity, and adequate sewage disposal facilities, in addition to fulfilling all state and local housing or health codes (see New Jersey Stat. Ann. § 2A:42-88). If the landlord fails to keep the rental unit maintained to this standard, the tenant can bring an action against the landlord and the court would likely order the landlord to use the rent payments to make the required repairs (see New Jersey Stat. Ann. § 2A:42-87).

The tenant could also choose to make the repairs and then deduct the amount of the repair from the rent. The tenant would first need to provide the landlord adequate notice that a repair needs to be made. If the landlord fails to make the repair within a reasonable time, the tenant could then arrange to have the problem repaired and deduct the amount of the repair from the rent (see Marini v. Ireland, 265 A. 2d 526 (1970)). The tenant could use the landlord's failure to make the repair as a defense against not paying the full amount of rent.

See the Nolo article New Jersey Tenant Rights to Withhold Rent or "Repair and Deduct for more information.

Landlord Evicts Tenant for Violating the Lease or Rental Agreement

Before a landlord can proceed to evict a tenant for violating a portion of the lease, the landlord must provide the tenant with a written Notice to Cease. The notice must contain a description of the lease violation and give the tenant an opportunity to correct the violation. If the tenant corrects the lease violation, the landlord must not proceed with the eviction lawsuit (see New Jersey Stat. Ann. § § 2A: 18-61.1(d) and (e)). The tenant can use evidence that the lease violation stopped as a defense against an eviction.

Landlord Evicts the Tenant in Retaliation

New Jersey law makes it illegal for a landlord to evict a tenant within ninety days after the tenant has exercised certain rights. In most states, this is referred to as "retaliation." In New Jersey, this type of retaliation is referred to as "reprisal law." New Jersey law specifically protects a tenant from being evicted for exercising the following rights:

• enforcing rights allowed to the tenant under the lease or rental agreement or under New Jersey law
• complaining to a government agency about the landlord's violation of any health or safety codes, and
• organizing or participating in any lawful organization.

See New Jersey Stat. Ann. § 2A:42-10.10.

If the landlord files an eviction lawsuit after the tenant has exercised any of these rights, the tenant can use retaliation as a defense against the eviction. See the Nolo article New Jersey State Laws Prohibiting Landlord Retaliation for more information.

Landlord is Evicting the Tenant Based on Discrimination

The federal Fair Housing Act makes it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. If a landlord evicts a tenant based on any of these characteristics, the tenant can use the discrimination as a defense against the eviction. See the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.

Tenant Resources for Fighting an Eviction in New Jersey

The New Jersey court system provides helpful information on the eviction process at its Landlord/Tenant Frequently Asked Questions section. The New Jersey Department of Community Affairs also provides a helpful bulletin entitled Grounds for an Eviction. Legal Services of New Jersey (LSNJ) is another useful resource, particularly their extensive online section on Defenses to Eviction. LSNJ is New Jersey's legal aid division that offers legal help for economically disadvantaged people. Tenants who live in federally assisted housing should also check out the tenant resource page at HUD.gov.

Eviction lawsuits must be filed in the county where the rental property is located. The New Jersey court system maintains an online directory for all the county courthouses in the state.

When to Hire an Experienced Lawyer

If you have questions about your eviction case or defense or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney.

Also check out Nolo's Lawyer Directory for New Jersey lawyers who specialize in landlord-tenant law.

More Information on Evictions and Terminations

For more articles on the subject, see the Evictions and Terminations section of Nolo.com. If you want to learn about how tenant bankruptcy affects an eviction, see the Nolo article Bankrupt Tenants.

For more information on tenant rights, see Every Tenant's Legal Guide, by Janet Portman and Marcia Stewart (Nolo).