Let’s Get Real-When Dealing With Leases

By Mahlon L. Fast, J.S.C., Ret

After 60 years in the profession, and striving towards my “semi-retirement,” I’m going to “let it all out.” And, after 60 years, you might well think that I’ve become “hardened” in my ways. In a sense, that’s true – my ways have been ways to change, to “get with the program” and to be “real.” What do I have in mind, you might ask. Simply, make it simple, make it workable and understandable. 

So many leases include old phrases, for example, exonerating a landlord for the landlord’s acts of negligence, waiving certain defenses by a tenant, “laying it on” (i.e., committing) a tenant to some commitment without an affirmation by the tenant, and including “rules and regulations” that can be changed unilaterally by a landlord – sometimes, just by “posting” the new (or revised) rules (and maybe, gratuitously, after 30 days). None of these examples are enforceable, so why not establish good faith with a tenant – and perhaps of greater significance – with a judge, by being “real.” 

Exculpation (exoneration) for a landlord’s negligence: see, for example, Kuzmiak v. Brookchester, Inc. 33 N.J. Super. 575 (App. Div. 1955) which held that a lease provision exculpating a landlord from liability to a tenant for injuries caused by the landlord’s own negligence was void as against public policy. 

A tenant waiving defenses: see, for example, N.J.S.A. 2A:18-61.4 (Waiver of rights by provision in lease; unenforceability): Any provision in a lease whereby any tenant covered by [61.1] agrees that his tenancy may be terminated or not renewed for other than good cause as defined in [61.1], or whereby the tenant waives any other rights under this act shall be deemed against public policy and unenforceable. [Italics added.] 

Lack of affirmation by a tenant: see, for example, 447 Associates v. Miranda, 115 N.J. 522 (1989) which suggests that a landlord cannot presume acceptance, and that a tenant can later challenge the reasonableness of a proposed change to a lease when holding over after the expiration of a prior lease term. To the same effect, see Gamble v. Connolly, 399 N.J. Super. 130 (Law Div., 2007). Therefore, as suggested by case law, spell out how a tenant should respond to a proposed change – in plain language. 

Rules and regulations: How do they differ from the provisions of a lease? They don’t – I do NOT, repeat, NOT, believe in R&R. They are archaic and date back before the AEA, and relate to a time when landlords could simply serve tenants with notice of a change in the R&R. However, when the AEA (N.J.S.A. 2A:18-61.1d) was enacted and gave an “additional” ground to evict for breach of a R&R, that subsection provided that: 

d.The person has continued, after written notice to cease, to substantially violate or breach any of the landlord’s rules and regulations governing said premises, provided such rules and regulations are reasonable and have been accepted in writing by the tenant or made a part of the lease at the beginning of the lease term. 

The emphasized words are essentially the same as those required in 61.1e, for the breach of a lease – – nothing more or less! So, why have the provisions that fit into a lease as requirements by a tenant in something called R&R rather than simply where they belong, i.e., in a lease with all other requirements on the part of a tenant? Even though I am an old geezer (as a losing litigant once – even long ago – wrote in a “Robe probe” comment), I do not believe in continuing archaic concepts. 

So, now you ask, how does a landlord incorporate what would be revised rules and regulations in a proposed renewal of a lease? The answer is governed by New Jersey Statute NJSA 2A:18-61.1i: 

The landlord or owner proposes, at the termination of a lease, reasonable changes of substance in the terms and conditions of the lease, including specifically any change in the term thereof, which the tenant, after written notice, refuses to accept; … the landlord or owner shall have the burden of proving that any change in the terms and conditions of the lease, rental or regulations both is reasonable and does not substantially reduce the rights and privileges to which the tenant was entitled prior to the conversion. 

That includes “regulations,” but so what? Go back to point one. The subject does not have to be made any more complicated than it already is.  Have I made a convert of you? 

And, while I’m at it, in the event that you want to make some provision conditional, why not simply say, “if”? 

Changing ways is not easy. After all, we’ve “always done it like this” and lived with most of these landlord/tenant laws, regulations, decisions and customs for decades. If the legislature doesn’t change them, rhetorically I ask, why should you? My answer – for your own integrity. Keep it simple, keep it real.

Mahlon L. Fast, J.S.C.,Retired and of counsel to the firm Ehrlich, Petriello, Gudin and Plaza, P.C. located in Newark, NJ.  He is the author of the Landlord/Tenant and Related Actions in the Superior Court of New Jersey -as well as A Judge’s Primer for Small Claims Practice in the Special Civil Part Of the  Superior Court of New Jersey and has  over 40 published judicial opinions .  He served as Judge of the Superior Court of New Jersey and was a member of the  Supreme Court Committee on Special Civil Part Practice (Chair of Landlord/Tenant Subcommittee). Prior to that he was a partner with Fast & Fast, Esqs specializing in general civil practice emphasizing: estate planning and administration; all aspects relating to real estate .  He can be reached at (973) 951-2160 or via email at mfast@epgprlaw.com. 

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