Landlord Victory - New Jersey Anti-Eviction Act

By: Eric S. Kapnick

Dateline: July, 2001

The New Jersey Anti-Eviction Act, NJSA 2A:18-61.1 et seq. (the “Act”) provides extensive protections to residential tenants in the State of New Jersey. The Act specifically sets forth the grounds upon which an eviction action can be commenced and the amount of notice a landlord is required to give a tenant prior to the commencement of the action. Except for the non-payment of rent, no legal action can be commenced without the landlord first serving upon the tenant a Notice to Quit, which notice sets forth the statutory basis for said eviction and the statutory notice provisions.

The statute does contain certain exceptions which are specifically set forth in the first paragraph of 2A:18-61.1. One exception is for an “owner -occupied premises with not more than two (2) rental units or a hotel, motel or other guest house or part thereof rented to a transient guest or seasonal tenant.” In the recently decided case of McQueen v. Brown (Docket No. A-1978-99T2, A-3102-99T2) the New Jersey Appellate Division expanded the definition of “owner-occupied” and thus gave the residential landlords of this State a rare victory. Specifically the Court held that for the owner occupied exception to the Anti-Eviction Statute to apply the owner need not reside in the premises permanently as their principal residence, but only that the owner resides in the unit “for some time.” The Court further held that there is no exact numerical formula for making the determination of “some time” and the determinative time period should be case sensitive. In McQueen, the Court determined that where the landlord had owned the property for 20 years, and had occupied it frequently on weekends and holidays for an average of 8 or 9 days a month, that this was sufficient time to fall under the exception to the Anti-Eviction Act.

Thus, if an owner of a building in New Jersey (where the building contains not more than two (2) rental units) in good faith maintains and personally occupies the unit on a part time basis, the unit will qualify as “owner-occupied” and the protections awarded to tenants by the Anti-Eviction Act will not apply. It is important to remember that the Court did not set forth an exact numerical formula and thus each case will be decided on a case to case basis.

This Article is a service of the Foreclosure Practice Area of Fein, Such, Kahn & Shepard, P.C.  It does not constitute legal advice nor create an attorney-client relationship.  For more information contact Eric S. Kapnick at ekapnick@feinsuch.com. 

© 2001, Fein, Such, Kahn & Shepard, P.C., all rights reserved.  Permission is granted to reproduce and redistribute this article so long as (i) the entire article, including all headings and the copyright notice are included in the reproduction, and (ii) no fee or other charge is imposed.