Key Legal Developments


04/30/19: DCPP v. J.W.-D. and I.M., (A-1840-17T2)(A-1841-17T2) Decided April 23, 2019 (Per Curiam)

Facts: J.W.-D is the mother of three sons, IS.M. (Ian), J.M. (John), and E.W. (Eric).  I.M. is the father of the two oldest sons, Ian and John. Father of the youngest son, Eric, is unknown.

The oldest two children, Ian and John, were removed from the mother’s care and placed in a non-relative resource home in 2012. The mother had a history of mental illness, involuntary hospitalizations, repetitive drug use, and a psychotic episode in which she nearly drowned one of her sons. The father was incarcerated at the time of removal by the Division and will continue to be incarcerated until at least 2023.  In May 2013, Ian and John were placed in the care of C.W., the mother’s maternal grandmother. They remained with C.W. for the next year and half until December 2014. During this period, the mother gave birth to the youngest son, Eric, in November 2014. (Read More)

04/18/19: JSM at Edison Terrace LLC v Edison Fair Rental Housing Board et al. (Decided 4/5/19) - JSM is a mobile home park. For 24 years JSM did not charge tenants for water consumption. In 2009, JSM sent Defendant/Tenant Phyllis Hall a lease which added:
8. UTILITIES. Subject to local rent control regulations, at the inception of Residency, you shall pay for all utilities servicing the Site. Owner is not contractually obligated to pay for any utilities provided to the Site during Residency. . . . Utility charges improperly assessed to Owner subsequent to your taking occupancy shall be considered additional rent

9. WATER/SEWER SERVICE. Subject to local rent control regulations, you are responsible for the maintenance of your water and sewer lines from the Owner's connection to your Mobile Home, and in the event Owner elects to convert your unit to direct billing to the relevant water/sewer authority, you will then be responsible for payment of water and/or sewer service.
In 2017, JSM raised the rent by 5%, the maximum permitted by local ordinance, and installed water sub-meters. Ms. Hall then filed a complaint with the Edison Township Rental Housing Board (“Board”), alleging that the installation of the sub-meters was a reduction in services in violation of the township’s Housing Code and argued that such action constituted an increase of more than five percent allowed by the code. Section 17-4.11 of the Code states: "Landlords shall maintain the same standards of service and maintenance of all real and personal property and equipment in and around the housing spaces and dwellings in the same manner as was provided on the date of adoption of this section." The Board found JSM's installation of water sub-meters was effectively a method to pass through the cost of water to tenants and that this constituted a reduction in services, in violation of § 17- 4.11, because JSM now required tenants to pay for a service that was previously provided to them. The Board argued that since the inception of Ms. Hall’s tenancy the water was factored into rent. As a result, the Board ordered JSM to reimburse Hall and provide her water at no charge.

JSM filed a complaint in lieu of a prerogative writ in the Law Division. The judge found in favor of Hall and the Board. JSM appealed. The Appellate Division agreed with the Board that in effect, JSM's installation of water submeters was a method by which to pass through the cost of water to the tenants without offering a corresponding rent decrease. JSM kept attempting to argue that a “utility” was not a “service” under the township’s Housing Code. The Appellate Division deferred to the Board’s review and held that the direct water billing was really an unapproved rent increase in excess of the 5% limit.

04/18/19: Rainer v. Bartlow (Decided 3/26/19) - On September 11, 2011, Rainer rented an apartment to Michael Bartlow, his daughter Nicole and her boyfriend Matthew. Michael never lived there nor intended to live there and was not listed as an occupant.  The lease terms precluded Michael from residing in the premises  There was no language in the written lease agreement stating that Michael was signing the lease as a guarantor for his daughter and her boyfriend, though that apparently was the intention.

The first year lapsed, and no new written lease agreement was signed thereafter. Nicole and Matthew later fell behind on rent, and an eviction judgment entered in 2017. Rainer filed a small claims action alleging that Michael was responsible for the back rent as a co-signor of the lease. The court found in favor of Rainer on this issue and Michael appealed. The Appellate Division reversed.
Contrary to well-established settled authority, however, the parties did not execute a guaranty agreement memorializing their intention. See Peoples Nat'l Bank v. Fowler, 73 N.J. 88, 101 (1977) ("It has long been settled law that a [guaranty] is chargeable only according to the strict terms of its undertaking and its obligation cannot and should not be extended either by implication or by construction beyond the confines of its contract."). Further, pursuant to the statute of frauds, "[a] promise to be liable for the obligation of another person, in order to be enforceable, shall be in a writing signed by the person assuming the liability . . . ." N.J.S.A. 25:1-15.
The Appellate Division reasoned that while the intention was for Michael to guarantee rent for the duration of the lease agreement, that obligation ceased when the lease agreement expired in 2012. If Rainer wanted Michael to be personally liable for rent beyond that time, then Rainer should have had him sign a guaranty agreement. The Appellate Division did not address whether Michael might have been liable for rent during the initial lease term, even though the agreement did not contain the guarantee language, because that rent was paid. Rainer also tried to argue that Michael was liable for rent as a holdover tenant. However, the Appellate Division found that he could not be a holdover tenant within the meaning of 46:8-10 when he was never permitted to occupy the premises.

04/18/19: VOADV Property Inc., v. Warren (Decided 3/21/19) – VOADV under its Moving Forward program enters into lease agreements with landlords subleases the units, with rental subsidies attached, to program participants. Ms. Warren fell behind on her portion of the rent after her daughter moved out. The parties through counsel negotiated and entered into a consent judgment for possession relying on the representation that Ms. Warren would be able to use the subsidy at another place. It was only after the consent judgment was entered that defendant's counsel was advised that the subsidy attached to the specific unit, and not to defendant, and that she only permitted her to occupy the property because of her daughter’s disability. The court denied subsequent order to show cause to vacate the consent judgment and motion for reconsideration.

The Appellate Division found that the consent judgment should be vacated pursuant to R. 4:50-1(c) (fraud . . . ,misrepresentation, or other misconduct of an adverse party) because the record supported that VOADV misrepresented the status of her voucher as an inducement to have defendant sign the consent order and agree to vacate the premises.

04/08/19: Under a legislative policy to avoid voter disenfranchisement, in 1974 N.J.S.A. 19:23-22.4 was amended to include Spanish as a primary language in sample ballots for 10% of registered voters for the election district in that county. In Correa v. Gross (Decided 4/8/19), the Appellate Division had the novel issue before them of whether sample primary ballots must be printed in Spanish and English for mail-in ballots and the larger question of whether the sample ballot intended to mirror the official ballot requires the official ballot to conform to the bilingual sample ballot. The Appellate Division noted the confusion between the various voting statutes but looked at the legislative intent and found that “it is clear that the Legislature has expressed a strong policy interest in protecting Spanish-speaking voters from being disenfranchised” and has “adopted a panoply of protections in voting districts where the primary language of at least ten percent of registered voters is Spanish.” The Appellate Division agreed with the plaintiff that there would be an absurd result if the sample ballot was accessible to Spanish-speaking voters but the official ballot was not. If the Appellate Division’s interpretation of the legislative intent was incorrect, the Court noted that the Legislature is free to amend the statutes to clarify its intent. The matter was remanded to the trial court for an order conforming with this opinion.

02/11/19: New Jersey Division of Child Protection and Permanency v. A.S.K. (A-50-17) (079700) (Per Curiam)—New Jersey Supreme Court affirmed the Appellate Division’s affirmance of the trial court. The trial court terminated the parental rights of the Defendant, who is the biological father of the child. The child alternated his residence between his mother and father during the first 4 years of his life. The Division became involved with the family due to allegations of medical neglect of the child under the mother’s care. When the child began living with Defendant, the medical neglect was remedied and the Division found Defendant was capable of caring for the child. Due to family conflicts, Defendant returned the child to the care of the mother. The Division removed the child from the mother soon thereafter. During the next three years while the child was in the Division’s custody, Defendant did not provide his current contact information to the Division and did not seek contact with the Division, despite the fact that he knew the child was in the Division’s custody. During the course of the three years, Division had changed its goal from reunification to adoption and filed a guardianship complaint. Although Defendant appeared for the first time in the guardianship litigation in January of 2016, he missed subsequent court-ordered evaluations several times.

The trial court conducted a four-pronged analysis of best interests of the child, as codified in NJSA 30:4C-15. The first prong, “The child’s safety, health, or development has been or will continue to be endangered by the parental relationship;” and the second prong, “The parent’s unwillingness or inability to eliminate that harm.” were met by the court’s finding that the Defendant voluntarily withdrew from the child’s life for substantial periods of time, while the child was in danger of medical neglect and while the child was under the care of the Division. The third prong, “Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child’s placement outside the home and the court has considered alternatives to termination of parental rights,” was met by the Division’s attempts to contact the Defendant, Defendant’s failure to appear at appointments, and the Division’s consideration of alternative placements. Although Defendant was never served with the Title 9 complaint due to the Division’s mistake, the trial court ruled, as affirmed by the Appellate Division and the Supreme Court, that the Division’s search for his address was adequate, that Defendant had actual knowledge, and that no prejudice is attributed to the Defendant due to the delay in service. The fourth prong, “Termination of parental rights will not do more harm than good,” was met by the psychologist’s testimony regarding the emotional attachment between the child and resource parent. The Supreme Court further noted that the proceeding was “needlessly drawn out” due to the Division’s errors and delay in service and urged the Division to conduct a new search for a parent for each phase of the litigation and implement procedures that retain a party’s past contact information.

01/28/19: The New Jersey Supreme Court recently ordered the dismissal of more than 780,000 minor municipal court matters older than 15 years, including parking tickets and some minor traffic violations. The effort was designed in part to help address the problem of mounting court debt or fines and fees which have created access to justice issues for many, most particularly those of low-income statewide.

01/08/19: In the Matter of Expungement of the Arrest/Charge Records of T.B., (A-18/19/20-17) (079813) (decided January 8, 2019), the New Jersey Supreme Court held that successful drug court graduates presumptively meet the “public interest” when the court considers their expungement applications under N.J.S.A. 2C:35-14(m). Additionally, they are not required to provide copies of all relevant transcripts and reports otherwise required under In re Kollman for those convicted of third or fourth degree drug sale or distribution offenses. (Read more)

01/04/19: J.G. v. J.H. (Published App. Div decision by J. Koblitz). In this case, LSNWJ persuaded Judge Koblitz and the other Appellate Division panel members that ”Because the welfare of children is paramount whether the parents are married, divorced or never-married,” they must be provided (most of) the procedures required for custody and parenting time in a divorce litigation. Specifically, the court held:

“[Prior to [an FD] plenary hearing, the parties should have been sent to mediation, Rules 1:40-5 and 5:8-1, and, if they were unable to resolve the issues, they should have been required to submit a Custody and Parenting Time/Visitation Plan pursuant to N.J.S.A. 9:2-4(e), Rule 5:8-5(a) and Luedtke v. Shobert (Luedtke), 342 N.J. Super. 202, 218 (App. Div. 2001). The required procedures for custody and parenting time cases are outlined in Administrative Directive #01-02, ‘Standards for Child Custody and Parenting Time Investigation Reports’ (Apr. 2, 2002), and include use of alternate dispute resolution, followed by an investigation report when ‘conflicting information from the parties make it difficult to make a determination in the best interest of the child regarding custody/shared parenting time.’ A Social Investigation Report should be ordered where ‘conflicting information regarding which parent can serve the long term best interest of the child is presented before the court but the psychological fitness of both parties is not in question.’ Ibid.”

Additionally, the court detailed how court appearance in this non-dissolution case failed to provide required hearing procedures, including an opportunity for each side to present evidence, cross-examine witnesses, and make legal arguments.