A coalition of 29 housing and racial justice advocates have signed a letter to the Administrative Director of the New Jersey Courts requesting that the courts enforce compliance with federal law in all eviction filings and ensure constitutional due process in court-ordered mediation and settlement conferences in the midst of the COVID-19 pandemic.
These advocates warn that mass eviction threatens further harm to communities already devastated by the coronavirus, especially communities of color. Failure to take proper measures will cause mounting displacement and homelessness, in addition to risking vulnerable residents’ due process rights. Already deprived of economic resources, a political voice, and easy access to legal representation, such communities face widespread devastation. The coalition’s letter identifies more than 30 jurisdictions across the country that have taken additional steps to protect the rights of tenants. The advocates urge the New Jersey courts to adopt similar measures.
The letter focuses on two main areas of concern:
- Ensuring eviction filings are compliant with the federal CARES Act.
In a move protective of tenants’ rights, the New Jersey Supreme Court has suspended landlord-tenant trials since March due to the coronavirus, but the court has allowed landlords to file eviction actions even while cases are not being set for trial. As a result, eviction filings have been accumulating rapidly. New Jersey does not currently impose specific requirements to ensure that these filings comply with federal law.
The federal CARES Act prohibits landlords from filing eviction actions against tenants:
- when the landlord holds a federally backed mortgage or a federally backed multifamily mortgage; and
- in most federally subsidized housing, including public housing; Section 8 housing (whether project-based or voucher-based); and certain housing programs for seniors, people with disabilities, people with HIV/AIDS, and people at risk of homelessness, among others.
According to federal law, no landlord may file an eviction action against a tenant in a covered property for nonpayment of rent, or charge fees (such as late fees or attorney’s fees) related to nonpayment of rent, for 120 days from March 27, 2020 (or through July 25, 2020). After July 25, a landlord must give tenants in covered properties 30 days’ notice before filing an eviction action.
Fourteen states and two counties (Arkansas; Georgia; Idaho; Illinois; Iowa; Jackson County, Missouri; Maryland; Michigan; New Hampshire; North Carolina; Oklahoma; Palm Beach County, Florida; Rhode Island; South Carolina; Tennessee; Texas) have taken action to require landlords to certify compliance with the CARES Act before filing an eviction complaint. In addition, 19 states and the District of Columbia have suspended eviction filings in certain circumstances: for nonpayment; except in emergencies; for COVID-related hardship; or on several of these bases.
New Jersey has neither suspended filings nor taken steps to ensure that eviction complaints are in compliance with the CARES Act. Of the thousands of eviction actions pending throughout the state, a significant percentage may have been filed in violation of federal law. The coalition urgently requests that the New Jersey courts require landlords to submit certifications and associated evidence showing that their filings comply with the CARES Act, and dismiss those filings that are non-compliant.
- Protecting the due process rights of tenants in mandatory settlement conferences.
Tenants summoned to mandatory settlement conferences are constitutionally entitled to notice, accurate information about their substantive and procedural rights, and access to legal representation. The coalition lists the essential steps necessary to protect tenants’ right to due process.
- Tenants must be served with the complaint at least 10 days before the settlement conference, and the notice must include contact information for legal services.
- Tenants need to be informed of their rights before and during each settlement conference, including that:
- The Governor has issued an Executive Order that prevents them from being locked out of their homes until two months after the Governor lifts the state of emergency. This will not happen before September, at the earliest.
- The New Jersey Supreme Court has suspended landlord-tenant trials indefinitely. This suspension will last until the court orders that such trials be resumed.
- Although lockouts and trials are not happening right now, tenants still owe the rent.
- Settlement is voluntary. Even if landlords and tenants may be required to show up for a settlement conference, the parties cannot be forced to settle.
- In many rent-controlled, subsidized, and CARES Act-covered properties, the landlord is not allowed to collect certain fees, including attorney’s fees, late fees, or other charges to avoid eviction, and a landlord may not collect such fees unless a written lease designates them as “additional rent.”
- Assistance is available. The court should provide contact information for legal services, including organizations that will assist undocumented immigrants.
- There must be mechanisms in place to allow tenants and landlords to take advantage of future sources of rental assistance or relief as laws continue to change.
- The courts should restrict mandatory settlement conferences to those cases in which both parties are represented by counsel.
- Any electronic settlement conference should proceed only if the tenant has access to video.
The full text of the coalition’s letter may be found here.
The members of the coalition and signatories to the letter include Catherine Weiss, Partner and Chair, Lowenstein Center for the Public Interest; Frank Argote-Freyre, Director, Latino Coalition of New Jersey; Staci Berger, President and CEO, Housing & Community Development Network of NJ; Lori Outzs Borgen, Associate Director, Center for Social Justice, Seton Hall University School of Law; Alfred Donnarumma, Assistant Director and Director of Litigation, Central Jersey Legal Services, Inc.; Christian Estevez, President, Latino Action Network; Jill Friedman, Associate Dean, Pro Bono and Public Interest, Rutgers Law School; Paula A. Franzese, Peter W. Rodino Professor of Law, Seton Hall University School of Law; Yvette Gibbons, Executive Director, Essex County Legal Aid Association; Adam Gordon, Executive Director, Fair Share Housing Center; Norrinda Brown Hayat, Associate Professor of Clinical Law, Rutgers Law School - Newark; Ryan P. Haygood, President & CEO, New Jersey Institute for Social Justice; Lauren Herman, Supervising Attorney, Make the Road New Jersey; Cathy Keenan, Executive Director, Volunteer Lawyers for Justice; Erika Kerber, Director of Litigation, Community Health Law Project; Renee Koubiadis, Executive Director, Anti-Poverty Network of New Jersey; Jeanne LoCicero, Legal Director, ACLU of New Jersey; Maria Lopez-Nunez, Deputy Director for Organizing and Advocacy, Ironbound Community Corporation; Mike McNeil, State Housing Chairman, NAACP New Jersey State Conference; Gladys Moriarty, Senior Attorney, Essex County Legal Aid Association; Ayesha Mughal, Co-chair, Central Jersey Democratic Socialists of America (DSA); Stacy Noonan, Managing Attorney – Mercer and Burlington Counties, Community Health Law Project; Connie Pascale, Board Member, STEPS (Solutions to End Poverty Soon); Matt Shapiro, President, New Jersey Tenants Organization; Richard T. Smith, President, NAACP New Jersey State Conference; Meena Song, Managing Attorney − Union and Hudson Counties, Community Health Law Project; and Jeff Wild, President, NJ Coalition to End Homelessness.
About Lowenstein Sandler LLP
Lowenstein Sandler is a national law firm with over 350 lawyers based in New York, Palo Alto, New Jersey, Utah, and Washington, D.C. The firm represents leaders in virtually every sector of the global economy, with particular emphasis on investment funds, life sciences, and technology. Recognized for its entrepreneurial spirit and high standard of client service, the firm is committed to the interests of its clients, colleagues, and communities.
