Today, the New Jersey Supreme Court will hold a virtual public hearing on Maintaining Our Communities, Report of the Judiciary Special Committee on Landlord Tenant. The Special Committee released its report on April 21, 2021, responding to increasingly urgent calls to reform the landlord-tenant process before the post-pandemic wave of evictions hits the courts. The Supreme Court appointed Lowenstein to participate on the committee on behalf of a broad coalition of organizations, including the state’s leading advocates for housing stability, racial justice, and immigrants’ rights. 

Representing that same coalition, Lowenstein has partnered with others to submit comprehensive comments on the Special Committee Report. Members of the coalition will testify today about its recommendations for reform. 

The coalition commends the committee for its commitment to seeking the fair resolution of eviction matters and recognizing the critical benefits of dedicating significant additional judicial resources to this docket. The committee was convened in part in response to the threat of mass eviction in the wake of the COVID-19 pandemic. And the numbers of actual and potential eviction filings are staggering. As of April 2021, there were more than 54,000 pending landlord-tenant cases statewide, and the judiciary anticipates that an additional 194,000 cases will be filed before 2022. Rather than reacting to this crisis by making case-clearance its first priority, however, the Special Committee responded by making 18 recommendations that aim to enhance procedural fairness despite the overwhelming numbers. It is to the great credit of the judiciary that its first concern is the welfare and treatment of litigants and not the rushed disposition of cases. 

The goals of the committee are both especially important and particularly difficult to achieve in the landlord-tenant docket because of the number of unrepresented litigants involved. The Administrative Office of the Courts reports that 16.6 percent of landlords and 98.8 percent of tenants appeared without representation in 2019. Because unrepresented litigants are particularly in need of information about their rights, assistance in exercising these rights, and patience as they work to comply with technical procedural rules, the coalition’s comments focus on suggestions to ensure their needs are met to the greatest possible extent. 

Avoiding the mass displacement of neighborhoods and communities in New Jersey is also a racial justice issue. Communities of color have disproportionately faced both the health effects and the economic consequences of the pandemic. While many factors contribute to these disparities, the racial wealth gap is a primary factor and one that often reveals itself prominently in housing. In New Jersey, the racial wealth gap is among the starkest in the nation: As recently reported by the New Jersey Institute for Social Justice, “[T]he median net worth for white families is $352,000—the highest in the nation. But for New Jersey’s Black and Latina/Latino families, it is just $6,100 and $7,300, respectively.” As a result, for most Black and Hispanic New Jersey residents, owning a home is simply out of reach. Recognizing the particular harms of mass eviction to communities of color, the court has made improving the landlord-tenant process one pillar of its public commitment to equal justice

The coalition is grateful to be part of this larger effort and supports many of the recommendations of the Special Committee. In particular, the coalition supports proposals to require that court staff undertake enhanced initial review of eviction filings and that landlords submit basic proofs before trial. The coalition also supports the significant reduction in the misguided but currently pervasive requirement that tenants post all the overdue rent before the court will even hear their defenses based on unlivable and dangerous conditions in their homes. The coalition proposes further changes to the committee’s recommendations that we believe will help achieve shared goals, including additional assistance for parties who need support with technology to access virtual proceedings.

Conversely, the coalition opposes recommendations that we believe, as currently conceived, do not further fairness in the landlord-tenant process. Specifically, we urge the court to adopt an alternative form that tenants may use to identify potential defenses. Unlike the abbreviated form the Special Committee proposes, the coalition’s alternative includes a more complete list of defenses, stated as simply as possible. Overwhelmingly, unrepresented tenants cannot be expected to identify potential defenses without at least seeing what those defenses might be. 

The coalition also implores the court to eliminate from its stock settlement forms any term that would result in the immediate entry of an eviction judgment before any breach of the settlement. Currently, the court’s settlement form calls for the entry of eviction judgments at the time of settlement, with the rarely achieved hope that if the tenant complies with the settlement, the judgment will then be vacated. This is the opposite of how settlements normally work. In standard practice, when parties settle, no judgment is entered unless and until one of them violates the settlement. The practice should be no different for landlords and tenants. In particular, tenants should not be subject to the long-lasting harms of eviction judgments when they comply with the terms of a settlement, for example, by making all of the promised payments.

The members of the coalition submitting these comments include: American Civil Liberties Union of New Jersey, Anti-Poverty Network of New Jersey, Camden Coalition of Healthcare Providers, Central Jersey Legal Services, Community Health Law Project, Elizabeth Coalition to House the Homeless, Essex County Legal Aid Association, Fair Share Housing Center, Gibbons Fellowship at Gibbons P.C., Housing and Community Development Network of New Jersey, Ironbound Community Corporation, Latino Action Network, Latino Coalition of New Jersey, Lowenstein Center for the Public Interest at Lowenstein Sandler LLP, Make the Road New Jersey, NAACP New Jersey State Conference, New Jersey Citizen Action, New Jersey Coalition to End Homelessness, New Jersey Institute for Social Justice, New Jersey Tenants Organization, Rutgers Law School Pro Bono and Public Interest Program, Seton Hall Law School Center for Social Justice, Solutions to End Poverty Soon (STEPS), Volunteer Lawyers for Justice, and Wind of the Spirit.

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