Landlords Know Thyself; Know Thy Occupants

By Hon. Mahon L. Fast, JSC (Ret) of Counsel, Ehrlich Petriello Gudin & Plaza

The Fourteenth Amendment to the United States Constitution includes the following statement:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Resorting to the courts for evictions or similar relief constitutes “State Action” and that means that “due process” must be afforded to any person whose life or rights to property may be denied or abridged. “Rights to property” includes not only the right of a tenant to continue living according to law and the lease with a landlord, but also the rights of any person lawfully occupying the premises owned by another (the landlord, or “prime tenant”).

WHAT MAKES THAT IMPORTANT TO YOU IS THAT WHEN YOU WANT TO EVICT A TENANT, YOU ALSO HAVE TO EVICT ALL OTHER ADULT OCCUPANTS WHO ARE NOT TRESPASSERS.

Who is an “adult occupant”? In my opinion, an adult occupant is a person over the age of 18 (or who is an emancipated minor) who lives in the premises “with permission”, and who has no residence elsewhere.

“Permission” (for these purposes) may be given by you (the owner/landlord/manager) or your tenant. Even if your lease prohibits unauthorized occupants, the permission given by the tenant means that the unauthorized occupant is not a trespasser – even though that tenant may have breached the lease by permitting the unauthorized occupant. And that breach provides a ground for eviction of the tenant and the unauthorized occupant – if you make that person an additional defendant in the eviction case and if you have served both the tenant and the unauthorized occupant with the required notices to cease and to quit. N.J.S.A. 2A:18-61.1e(1).

What makes this critical is that if you failed to properly join the unauthorized occupant in the complaint and summons, and even if you get a judgment for possession against the tenant, the unauthorized occupant may come to court when the warrant of removal has been served, and apply for post-judgment relief (and probably get that relief). That will cause you additional time, effort and costs.

And so, you may ask, how are you supposed to know when there is an unauthorized occupant living in your building? That is a management issue, to know who is occupying your building and how it is being used. Various ways would be by sign-in sheets, testimony from a super or security person, other tenant, surveillance camera, or inspection of the apartment and finding (for example) two beds in an apartment rented for occupancy by a single person.

Another “need to know” factor is that if you have failed to include a known adult occupant as a defendant, and the defendant that you did name offers to sign a settlement in the eviction case, that settlement agreement is NOT binding on the non-party occupant – even if the named defendant claims to have been authorized to enter into the agreement in behalf of the non-party occupant.

Honorable Mahlon L. Fast, JSC (Retired) is Of Counsel with the firm of Ehrlich Petriello Gudin and Plaza.  Judge of the Superior Court of New Jersey, April 1986 — February, 2014 (Special Civil Part, 24+/- years; Criminal Division, 2 years, 8 months) Former Chair, Special Civil Part Judges Conference. He can be reached at 973/643-0040.

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