(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 5, 1998 -- Decided July 20, 1998
COLEMAN, J., writing for a unanimous Court.
This appeal involves a summary proceeding to dispossess a tenant for non-payment of rent. The
appeal focuses on the adequacy of procedures to protect pro se tenants and considers whether the trial court
abused its discretion in failing to vacate a consent judgment for possession pursuant to Morristown v. Little,
135 N.J. 274 (1997), and whether Burlington County's summary dispossess procedures adequately protect pro
se tenants.
Nedra Harris and her two minor children reside in Wrightstown Arms Apartments, a housing
development constructed under the National Housing Act to provide low-income housing. As the owner,
Community Realty Management, Inc. (Community) receives federal subsidies enabling it to provide housing
at reduced rents, but obligating it to comply with federal housing regulations. Harris lived in the apartments
pursuant to a written lease.
When Harris failed to pay her monthly rent of $133 on June 1, 1995, Community served her with a
Notice to Quit, stating that her tenancy would be terminated on June 22, 1995 and that her eviction would be
sought should she remain in the premises beyond that date. Although Harris indicated that she could pay
her rent by June 23rd, Community filed a complaint for summary dispossess for non-payment of rent on
June 22nd. The complaint alleged back rent, prior late charges, late charges for non-payment of June rent,
amount in damages and an amount in contract costs. The complaint also requested an amount in attorney's
fees and in court costs for a grand total of $379.50.
On July 14, the return date of the summary dispossess proceeding, Harris appeared in court without
the assistance of an attorney. The trial court gave some general instructions to litigants prior to the docket
call, which did not include an instruction that a judgment for possession would be entered against the tenants
should they fail to pay their rent in full by 4:30 p.m. that day.
Following the docket call, the court recessed. During that recess, Harris informed Community's
attorney, Robert Weishoff, that she was unable to pay the back-due monies. Weishoff, in turn, informed the
court clerk who entered a judgment for possession. Harris told the clerk she would make the full payment
within eleven days. When she did so, she signed a consent agreement staying the issuance of a warrant for
removal until December 31, 1995. At the time she signed the consent agreement, she believed, based on her
conversations with Weishoff and his paralegal, that she would be able to remain in the apartment at the end
of the probationary period so long as she had met all of the required conditions under the stay. The trial
judge and Weishoff also signed the order.
On November 3, 1995, Community sent Harris a letter reminding her of her obligation under the
consent order to vacate the apartment by December 31, 1995. When she did not do so, Community obtained
a warrant for her removal with an execution date of January 12, 1996. Represented by counsel for the first
time, Harris filed an order to show cause, seeking to vacate the judgment for possession.
The trial court conducted an evidentiary hearing at which Harris, Weishoff, and his paralegal
testified. At the conclusion of the hearing, the trial court refused to vacate the judgment for possession,
finding the terms of the consent order to be clear. The court further determined that Little was inapplicable
to Harris's case because to find otherwise would in effect be characterizing every low-income family as
exceptional and because Community is not a public housing authority. The court, however, stayed the
warrant of removal until March 1, 1996.
The Appellate Division stayed the warrant of removal pending disposition of Harris's appeal.
Subsequently, on September 30, 1996, the Appellate Division affirmed in an unpublished opinion. Among
the findings made by the Appellate Division was the conclusion that Harris's individual financial and personal
circumstances did not satisfy the exceptional circumstance required to set aside the consent judgment
because there are many households that fall within those circumstances.
On October 4, 1996, a warrant of removal was issued with an execution date of October 10, 1996.
On October 8, 1996, Camden Regional Legal Services filed a petition for certification on behalf of Harris.
On October 10, 1996, the Appellate Division stayed the judgment and warrant of removal pending disposition
of the petition.
The Supreme Court granted Harris's petition for certification and the warrant for removal therefore
has not been executed.
HELD: The procedures followed by Burlington County did not adequately protect pro se tenants and the
trial court should have vacated the consent judgment for possession signed by Harris.
1. For a consent judgment to be valid, like a contract, the parties' consent must be knowing and informed
and there must be a proverbial “meeting of the minds.” (pp. 12-13)
2. Although the pronouncement of a judgment in open court on the record constitutes the jural act and the
entry of the written judgment is merely a ministerial memorialization thereof, there was no jural act in the
present case. The clerk's notation in the present case was insufficient and therefore no proper form of
judgment was ever entered. (pp. 14-16)
3. The trial court's finding that Harris understood that the warrant of removal would be executed at the end
of six months even if she complied with the terms of the stay is so wholly insupportable as to result in a
denial of justice. Consequently, Harris was entitled to relief from any execution of the warrant for removal.
(pp. 16-21)
4. When fees and charges not authorized by law or the parties' private agreements are included in the
arrearages that give rise to a judgment for possession, a pro se tenant's consent to judgment for possession
represents a mutual mistake. Therefore, Harris is not barred from challenging improper charges or fees.
(pp. 21-22)
5. Under federal regulation, Community was not permitted to include late charges in the amount it
demanded from Harris as additonal rent when it sought a judgment for possession. (pp. 22-23)
6. A written lease must expressly permit a landlord to recover reasonable attorneys' fees and damages in a
summary dispossess proceeding before a landlord/tenant court may consider those expenses as additional
rent. (pp. 23-25)
7. Given the continuing shortage of decent subsidized housing, leases such as the one involved in this case
are essentially contract of adhesion to the extent they are not controlled by applicable law and, therefore,
should be strictly enforced against the landlord who prepared them. (p. 25)
8. In the present case, no rule, statute or contractual agreement authorizes the landlord to collect attorney
fees in connection with the eviction proceedings. (pp. 26-27)
9. The excessive demand for payment in this case had the clear capacity to prejudice whether Harris would
have been able to avoid the entry of judgment for possession. (p. 27)
10. The present case is more compelling than Little and requires vacating the judgment for possession. (pp.
28-30)
11. Summary dispossess proceedings based on late payment of rent are designed to secure performance of
the rental obligation and are not intended to be used to evict tentants for unrelated purposes. (p. 30)
12. There is a strong public policy of protecting tenants from improper evictions by requiring landlords to
established “good cause” before the court may assert jurisdiction to remove a tenant. (pp. 30-32)
13. To avoid unfair treatment of pro se tenants, the procedures for handling consent judgments or orders
should be standardized and the Special Civil Part Practice Committee is to propose appropriate out-of-cycle
changes to the Rules to require a landlord to submit an affidavit establishing the jurisdictional good cause
required by statute prior to the entry of a consent judgment or agreement in all non-tried summary
dispossession cases. (pp. 32-33)
14. Although Weishoff should be credited for performing a significant quasi-judicial function, that procedure
can no longer be tolerated, as it can raise ethical and public policy concerns. The better procedure is to
have landlord/tenant courts provide information to pro se tenants through instructions from the court written
notices explaining court procedures. Because the instructions should be standardized, the matter is referred
to the Special Civil Part Practice Committee to draft a set of proposed instructions to be submitted to the
Court along with the proposed rule amendments. Until then, each county shall prepare and implement a set
of plain-language instructions for tenants that generally convey the substantive information set forth by the
Court's opinion. (pp. 34-37)
The judgment of the Appellate Division is REVERSED and the judgment for possession and the
warrant of removal are VACATED. Community is directed to credit Harris's future rents in the sum of $295
for the overpayment.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
A-
82 September Term 1997
COMMUNITY REALTY MANAGEMENT, INC.,
FOR WRIGHTSTOWN ARMS APARTMENTS,
Plaintiff-Respondent,
v.
NEDRA HARRIS,
Defendant-Appellant.
Argued January 5, 1998 -- Decided July 20, 1998
On certification to the Superior Court,
Appellate Division.
Larry D. DeCosta, Supervising Attorney,
Camden Regional Legal Services, Inc., argued
the cause for appellant.
Robert P. Weishoff argued the cause for
respondent (Mr. Weishoff, attorney; Michael
S. Rothmel, of counsel and on the brief).
Melville D. Miller, Jr., argued the cause for
amicus curiae, Legal Services of New Jersey,
Inc. (Mr. Miller President, attorney; Mr.
Miller and Joseph Harris David, on the
brief).
The opinion of the Court was delivered by
COLEMAN, J.
This appeal involves summary proceedings to dispossess a
tenant for non-payment of rent. The appeal focuses on the
adequacy of procedures to protect pro se tenants. Two
significant issues raised are whether the trial court abused its
discretion in failing to vacate a consent judgment for possession
pursuant to Morristown v. Little,
135 N.J. 274 (1994), and
whether Burlington County's summary dispossess procedures
adequately protect pro se tenants.
The trial court refused to vacate the judgment for
possession and the Appellate Division affirmed in an unreported
decision. We granted certification,
151 N.J. 74 (1997), and now
reverse.
Defendant Nedra Harris resides in Wrightstown Arms
Apartments, a Section 8 housing development constructed under the
National Housing Act,
42 U.S.C.A.
§1437, to provide low-income
housing. As the owner, Community Realty Management, Inc.
(Community) receives federal subsidies enabling it to provide
housing at reduced rents, but obligating it to comply with
federal housing regulations.
Harris rents an apartment at Wrightstown Arms where she
resides with her two minor children. She entered into a lease
with Community for a term commencing April 19, 1993 and
terminating March 31, 1994. Although Harris and Community did
not execute a new lease at the expiration of the one year term,
the original lease provided that “after the initial term ends,
the Agreement will continue for successive terms of one month
each unless automatically terminated as permitted by paragraph 23
of this Agreement.” Thus, Harris remained in the apartment as a
month-to-month tenant under the same terms of the original lease.
When Harris failed to pay her monthly rent of $133 on June
1, 1995, Community served Harris with a Notice to Quit. The
Notice stated that Harris's tenancy was terminated effective June
22, 1995, and advised her that Community would seek eviction
proceedings if she remained in the premises after June 22. On
June 20, 1995, Community received a letter from Harris stating
that she would be unable to pay her rent until Friday, June 23,
1995. On June 22, 1995, Community nonetheless filed a complaint
for summary dispossess for non-payment of rent based on N.J.S.A.
2A:18-61.1a. The complaint alleged $236.50 in back rent,
representing $133 for June rent, $31 in prior late charges, $30
in late charges for non-payment of June rent, $17.50 in damages,
and $25 in contract costs. The complaint also requested $125 in
attorney's fees and $18 in court costs for a total of $379.50.
On July 14, 1995, the return date of the summary dispossess
proceeding, Harris appeared in court without the assistance of an
attorney. The
trial
court gave the following general
instructions to litigants prior to the docket call:
I should explain to you, ladies and
gentlemen, that the procedure will be I will
call the list and then we will take a recess
so that the cases where both parties are
present there will be an opportunity for the
folks to speak with one another and then
we'll recall the list to see which matters
actually have to be tried and then try them.
After I finish calling the list I will
explain the principles in a general way that
apply to the landlord and tenant law . . . .
Following the docket call, the court gave further
instructions regarding non-payment cases:
In the case of nonpayment of rent the
legislature has said that the tenant must pay
the rent on time and in full, and if the
tenant doesn't the landlord's entitled to a
judgment for possession.
It's important for you to realize that
we're all adults here, and we realize when
rent is not paid usually it's because a
person has run into a difficult situation . .
. . So, there's no moral criticism or we're
not saying people are bad persons, but on the
other hand, I have no choice but to enter a
judgment for possession.
The court also informed the tenants that
Some folks may be in a position where
certain agencies may be able to provide
assistance, and through the Department of
Consumer Affairs . . . there are
representatives from both the Welfare Board
and emergency services who can talk to people
who may feel . . . that they may be qualified
for some assistance.
Thereafter, the court recessed. During the recess, Harris
informed Community's attorney, Robert Weishoff, that she was
unable to pay the back-due monies. Weishoff, in turn, informed
the court clerk who entered a judgment for possession. Harris
told the clerk she would make the full payment within eleven
days. Eleven days later, on July 25, Harris paid the $379.50
demanded in the complaint as well as July rent of $133 plus $109
in late charges, totaling $621.50. She then signed a consent
agreement staying the issuance of a warrant for removal until
December 31, 1995. The agreement was a hardship stay pursuant to
N.J.S.A. 2A:42-10.6.
On November 3, 1995, Community sent Harris a letter stating:
“On July 25, 1995 through the Burlington County Superior Court of
New Jersey a consent order was entered staying the order of
removal until December 31, 1995. This letter is a reminder that
per that order on December 31, 1995 you are to vacate the
premises.” When Harris failed to vacate the apartment by
December 31, 1995, Community obtained a warrant for her removal
on January 3, 1996, with an execution date of January 12, 1996.
Represented by counsel for the first time, Harris filed an order
to show cause, seeking to vacate the judgment for possession.
The trial court conducted an evidentiary hearing on January
12, 1996. At the hearing, Harris testified that she spoke with
Weishoff at the summary dispossess proceedings while the court
was in recess. Although Weishoff did not remember speaking with
Harris, he stated in an unsworn statement that he always follows
the same procedure. First, he calls the tenants who are present
to counsel's table. Then, he informs them that if they pay the
money they owe by 4:30 p.m., their cases will be dismissed. He
also informs the tenants that if they do not have the money they
owe, they can attempt to negotiate a deal with the landlord and
memorialize their agreement in writing. In particular, he stated
that he advises tenants to utilize the form of consent order
promulgated by the Burlington County Court, a copy of which has
not been provided to us.
Weishoff also stated that he tells tenants that if they are
unable to pay and are not able to negotiate an agreement with the
landlord, they will have eleven days to post the rent before a
lockout. In response to the trial court's requested explanation
of the meaning of a lockout, Weishoff explained that a lockout
occurs when a judgment for possession has been entered and a
landlord petitions the court for a warrant of removal. The
Special Civil Part then gives the warrant to a constable who
serves it on the tenant. Seventy-two hours later, the constable
is directed to lock out the tenant.
Weishoff also stated that he informs tenants that they may
be eligible to receive funds from public agencies. He stated
that he explains the terms of a hardship stay to tenants,
including that all back monies must be paid, all future rent must
be paid on the first calendar day of the month, the landlord's
property may not be destroyed, and the tenant may not disturb the
peace and quiet of the neighborhood. Finally, Weishoff stated
that he calls each tenant over to counsel's table individually
and informs the tenant of the amount he or she owes, including
late charges. He then asks the tenant if he or she has the money
at that time. If the tenant says no, he tells the tenant that
the landlord will take a judgment for possession that day.
Describing her recollection of the conversation with
Weishoff, Harris stated, “I told him I didn't have all the money
right then and there. He said I have eleven days to get it -- to
get it together so I left.” Harris stated that she gave her name
to the court clerk indicating that she would make payment within
eleven days. Thereafter, the court clerk noted a judgment for
possession by writing “7-14-95-J” on the court list.
Harris also explained that on July 25, 1995, eleven days
after the judgment for possession was entered by the clerk, she
went to the clerk's office to remit payment. It is undisputed
that while Harris was there, the clerk called Weishoff's office
to determine the amount due. Weishoff's paralegal informed the
clerk that Harris owed $621.50 as of that day, representing an
additional $242 that included Harris's July rent of $133 plus
$109 late fees for June and July. Harris paid the $621.50 and
received a receipt. The receipt given by the court clerk
informed Harris to go to Weishoff's office to sign a consent
agreement staying the warrant of removal.
Harris went to Weishoff's office and met with a paralegal,
Denise Yanzuk, who regularly prepares hardship stays. Yanzuk
prepared Harris's consent order to stay the warrant of removal.
At trial, Yanzuk testified that when a tenant comes into the
office she normally shows the order to the tenant and goes
“through paragraph by paragraph and, basically, read[s] it to
them or explain[s] each paragraph.” Additionally, Yanzuk,
explained that when a tenant asks about what happens at the end
of a hardship stay, she responds that “they're on a order to -- a
court order to pay the rent and at the end of the stay they'll go
back on their normal lease unless they are notified otherwise by
the complex.” When asked whether she told Harris that she would
go back on her lease at the end of the stay period, Yanzuk
stated, "[n]o, I would not say you will go back on your lease. I
don't have the authority to say that.”
Based on her conversation with Yanzuk, Harris testified that
she believed that once six months had passed under the stay and
she had met all the required conditions thereunder, her
probationary period would be up and she would be able to remain
in the apartment. Accordingly, she signed the consent order
staying the warrant of removal until December 31, 1995. The
trial judge and Weishoff also signed the order.
At the conclusion of the evidentiary hearing, the trial
court refused to vacate the judgment for possession; the court
did, however, stay the warrant of removal until March 1, 1996.
Based in part on the trial judge's personal knowledge of eviction
proceedings rather than on the record in this case, the court
concluded that the Landlord/Tenant Court adequately informs
tenants of their right to pay monies owed by 4:30 p.m. The trial
judge stated:
I've heard it myself. The Court says to
everybody who's sitting there, if you don't
have the money by 4:30 today a judgment for
possession will be entered. And I'm satisfied
after having heard the argument that the
procedure under these circumstances is
adequate to protect the rights of the tenant
if the tenant's paying attention. . . . And I
find as a fact that [Harris] understood that
day that she did not have all that was due
and that the Court did inform those people
present that the money would have to be paid
by 4:30 [p.m.] or a judgment would be
entered.
The trial court further found that the terms of the July 25
consent order were clear. Therefore, the court concluded that
Harris should have understood that the order merely stayed the
warrant of removal, neither renewing her lease nor permitting her
to remain in the premises. Furthermore, the court determined
that Little, supra, was inapplicable to Harris's case because to
find otherwise “would in effect be characterizing every low-income family as 'exceptional' to trigger the operation of Rule
4:50-1.” Moreover, the court noted that Community is not a
public housing authority and to apply Little in this case “would
be simply to say that the Supreme Court has told landlords that
if you grant a hardship stay to a tenant who is a low income
person where the rent is being somehow subsidized . . . you are
stuck with that tenant for as long as you own the building.”
Harris appealed, and the Appellate Division stayed the
warrant of removal pending disposition of the appeal. On
September 30, 1996, the Appellate Division affirmed in an
unpublished opinion. The panel concluded that Rule 4:42-1(d)
allows settlement of litigation by the entry of a consent
judgment. Although the panel recognized that that procedure
presents certain risks for pro se tenants, the court concluded
that those risks do not warrant placing every pro se settlement
on the record. The court also found that Community was not
required to present evidence that the rent was unpaid, due, and
owing before the trial court could enter a consent judgment in a
summary dispossess action.
The Appellate Division further concluded that although the
Tenant Hardship Act, N.J.S.A. 2A:42-10.6, grants the trial court
the power to stay an eviction for up to six months, the statute
has not been interpreted to restrict the court's power to grant
further relief pursuant to Rule 4:50-1(f) in exceptional
circumstances. The Appellate Division found that the facts that
Harris has two children, ages five and six, works and earns $123
every fifteen days, and receives $371 in welfare do not satisfy
the exceptional circumstance requirement of Rule 4:50-1(f)
because there are many households that fall within those
circumstances.
On October 4, 1996, a warrant of removal was issued with an
execution date of October 10, 1996. On October 8, 1996, Camden
Regional Legal Services filed a petition for certification on
behalf of Harris. On October 10, 1996, the Appellate Division
stayed the judgment and warrant of removal pending disposition of
the petition that was granted July 11, 1997. Consequently, the
warrant has not been executed.
Harris and amicus, Legal Services of New Jersey, argue that
Burlington County Landlord/Tenant Court's eviction procedures
violate the law and are unfair to pro se tenants. Specifically,
Harris asserts that the eviction proceedings are contrary to the
law because (1) landlords do not have to plead and prove “good
cause,” a requirement for eviction under the Anti-Eviction Act,
N.J.S.A. 2A:18-61.1, or provide an affidavit to evict pro se
tenants; (2) the court permits judgments for possession to be
entered without first requiring the landlord to establish the
court's jurisdiction; (3) the court does not require the
submission of a form of judgment or order containing "the recital
that all parties have in fact consented to the entry of judgment
or order in the form submitted” as required by Rule 4:42-1(d) and
(e); and (4) the court clerk enters judgments for possession
against pro se tenants without an affidavit required by Rule 6:6-3(b).
Harris also argues that the court's procedures are
inherently unfair to pro se tenants. First, Harris contends that
at the eviction proceeding on July 14, 1995, the court failed to
inform tenants that they had until 4:30 p.m. that day to pay the
landlord all rent due and owing. Second, the court permits the
landlord's attorney to explain court procedures and the meaning
of court terms to pro se tenants. Third, the court clerk directs
pro se tenants to go to the office of their adversary and sign
consent orders regarding stays of warrants of removal. Harris
maintains that it is unfair for the clerk not to explain to pro
se tenants that they have a right to apply for relief from the
judgment for possession.
Harris insists that because she did not understand the
meaning of the terms “judgment for possession” or “hardship stay”
she could not have consented to a judgment. Even assuming there
was some degree of consent, Harris urges this Court to invalidate
the judgment because Weishoff incorrectly advised her regarding
the amount necessary to avoid a judgment for possession.
Finally, Harris argues that the judgment for possession entered
against her was invalid and that the lower courts erred in
refusing to vacate the judgment for possession under Little.
In response, Community alleges that it acted in good faith
and complied with all applicable regulations when evicting
Harris. Community rejects defendant's argument that Weishoff
improperly instructed Harris regarding the amount due and
maintains that all the fees and charges demanded in its complaint
were proper. Additionally, Community argues that the consent
judgment for possession was proper because Harris fully
understood her rights and chose to seek a hardship stay.
Community maintains that Harris's situation is unexceptional and
distinguishable from the circumstances in Little.
The current summary dispossess procedures allow a landlord
to obtain a judgment for possession in three ways: (1) by
default judgment, R. 6:6-3(b); (2) by judicial decree after a
trial, R. 6:6-4; or (3) by consent, R. 4:42-1(d), made applicable
to the Special Civil Part by Rule 6:6-1.
As noted previously, the present case involves two consent
judgments. A consent judgment has been characterized as being
both a contract and a judgment[;] it is not
strictly a judicial decree, but rather in the
nature of a contract entered into with the
solemn sanction of the court. A consent
judgment has been defined as an agreement of
the parties under the sanction of the court
as to what the decision shall be. Fidelity
Union Trust Co. v. Union Cemetery Ass'n,
136 N.J. Eq. 15, 25-26 (Ch. 1944), aff'd o.b.
137 N.J. Eq. 455 (E. & A. 1946). A consent
judgment has equal adjudicative effect as one
entered after trial or other judicial
determination. Pope v. Kingsley,
40 N.J. 168, 173 (1963). As such, a consent judgment
may only be vacated in accordance with R.
4:50-1. Middlesex Concrete, etc., Corp. v.
Carteret,
35 N.J. Super. 226, 235 (App. Div.
1955); Stawicky v. Stawicky,
12 N.J. Super. 72, 78-79 (App. Div. 1951).
[Stonehurst at Freehold v. Township Comm. of
Freehold,
139 N.J. Super. 311, 313 (Law Div.
1976).]
Thus, for a consent judgment to be valid, like a contract, the
parties' consent must be knowing and informed. Johnson & Johnson
v. Charmley Drug Co.,
11 N.J. 526, 538-39 (1953). There must be
the proverbial “meeting of the minds.” In the area of
landlord/tenant law, when a question arises concerning the
validity of an agreement between landlord and tenant, trial
courts are directed to “generally favor the tenant rather than
the landlord.” Carteret Properties v. Variety Donuts, Inc.,
49 N.J. 116, 127 (1967) (citations omitted); see 447 Associates v.
Miranda,
115 N.J. 522, 529 (1989) (stating courts should
liberally construe Anti-Eviction Act and utilize it to ensure
that evictions are based on reasonable grounds); see also Jijon
v. Custodio,
251 N.J. Super. 370, 372 (Law Div. 1991) (stating
Anti-Eviction Act should be liberally construed and all doubts
resolved in tenant's favor). In addition, the “entry of a consent
judgment is inappropriate and the judgment itself is
unenforceable when the agreement it encompasses or the relief it
grants is illegal.” First National State Bank v. Gray,
232 N.J.
Super. 368, 372 (Law Div. 1989), overruled on other grounds by
State v. Cruse,
275 N.J. Super. 324 (App. Div. 1994); Stonehurst,
supra, 139 N.J. Super. at 314; Midtown Properties, Inc. v.
Township of Madison,
68 N.J. Super. 197, 206-08 (Law Div. 1961),
aff'd,
78 N.J. Super. 471 (App. Div. 1963). When the foregoing
principles are applied to the present case, the two consent
judgments are problematic in several respects.
First, we address whether the consent judgment for
possession complied with the required court procedures. When
defendant admitted that she could not pay the $379.50 demanded by
Community by 4:30 p.m. on July 14, the court clerk entered
judgment for possession. We will treat separately whether that
sum was the proper amount due. In any event, when a tenant
consents to a judgment for possession, Rule 4:42-1(d) authorizes
the court to
enter a consent judgment or order without the
signatures of all counsel of record and
parties pro se who have filed a responsive
pleading or who have otherwise entered an
appearance in the action, provided the form
of judgment or order contains the recital
that all parties have in fact consented to
the entry of the judgment or order in the
form submitted. (Emphasis supplied).
On the return date of the summary dispossess proceedings, the
clerk entered a consent judgment for possession by noting “7-14-95-J” on the court list. No form of judgment or order was ever
entered, as required by the Rule, or at least no such judgment or
order has been presented to us.
Rule 1:6-8 allows the Special Civil Part clerk to enter
judgments in "proceedings which do not require allowance or order
of the court." The Legislature contemplated the entry of a
judgment for possession in appropriate cases when it granted a
grace period of three days before a warrant of removal could
issue. The grace period commences "3 days after entry of
judgment for possession," N.J.S.A. 2A:18-57, and a judge may also
grant a hardship stay of up to six months from the entry of
judgment. N.J.S.A. 2A:42-10.6.
We recognize "that the oral pronouncement of a judgment in
open court on the record constitutes the jural act and that the
entry of the written judgment is merely a ministerial
memorialization thereof." Mahonchak v. Mahonchak,
189 N.J.
Super. 253, 256 (App. Div. 1983) (citation omitted). There was
no jural act in the present case. Furthermore, a person should
be able to read a judgment required by Rule 4:42-1 and glean what
relief was granted, thereby avoiding future disputes. J.S. v.
D.M.,
285 N.J. Super. 498, 500 (App. Div. 1995). All of the
foregoing safeguards were breached in the present case.
We are therefore persuaded that the Legislature and Rule
4:42-1(d) contemplated the filing of a document designated as a
judgment for possession or an order for judgment. That document,
pursuant to Rule 4:42-1(d), must contain a recital that all
parties have consented to both the entry and the form of the
judgment or order. Because the clerk's notation in the present
case was insufficient, no proper form of judgment was ever
entered. For that reason, defendant as the prevailing party
below may not "be allowed to rely confidently on the
inviolability of [its] judgment." Hodes v. Oak Flooring Co.,
43 N.J. 359, 362 (1964).
Second, we examine whether defendant understood that payment
of the $621.50 within eleven days of July 14 would only postpone
the date of execution for the warrant of removal. Although the
trial court found that Harris understood and consented to the
entry of a judgment for possession, it did not consider in the
weighing process the strong evidence negating a knowing and
intelligent understanding of what transpired.
Defendant thought that if she paid in eleven days she would
remain in possession. The following colloquy demonstrates the
confusing evidence presented at the evidentiary hearing that
could reasonably have led Harris to that conclusion.
THE COURT: So they consent to a
judgment for
possession.
MR. WEISHOFF: They consent to a
judgment for
possession and then
they leave. When we
--
THE COURT: And, what's the
understanding that
they have when they
leave?
MR. WEISHOFF: The understanding is
that they have up to
ten days to post the
rent.
THE COURT: And, if they don't
do it within the ten
days what happens?
MR. WEISHOFF: Then I tell them
that the 11th day or
thereafter a lockout
may occur.
THE COURT: . . . So, the
idea that they
leave with is
that they have
given up -
they've given a
judgment for
possession, --
MR. WEISHOFF: And, --
THE COURT: --and if they
don't pay the
rent within the
11
days that
they're going
to be locked
out.
MR. WEISHOFF: They can be
locked out.
THE COURT: And, if they do
pay the rent
within the 11
days then what?
MR. WEISHOFF: Then one of two
things can
happen: either
they make a
deal with the
landlord and
the matter is
dismissed or
they have to
apply to the
Board for a
hardship stay.
THE COURT: Okay.
MR. WEISHOFF: Now, in this
particular case
this lady
apparently came
to the Court
and applied for
a hardship
stay.
Harris also testified regarding her understanding of her
conversation with Weishoff:
A. What I understood was I didn't have all
the money right then and there and I had
11 days with which to pay it, and I did
that. That was my understanding.
Q. Well, didn't somebody say that they were
getting a
judgment
for
possession
?
A. I didn't know what that was. I didn't
know. The way I
understood
it was I
had 11
days
within to
pay all
the money
up or I'd
have a
lockout.
That's
what I
understood
.
Q. Oh you did understand that there would be a
lockout?
A. If I didn't have the money by 11 days, yes.
Also, regarding the July 25 consent order staying the warrant of
removal, Harris testified that:
Q. What did you understand that consent
order to mean?
A. Okay. When they explained it to me
before I
even
signed it,
I asked
questions.
I said
does that
mean that
I can
still
stay. They
said, well
once your
six months
is up and
you do
everything
that
you're
supposed
to, you're
probation'
s up, and
you can
still
stay.
Weishoff admitted that generally, if a tenant complies with the
terms of the stay as Harris did, the tenant is permitted to
remain in possession at the end of the six month stay. Weishoff
also admitted that, when a tenant consents to payment, Weishoff
utilizes a form of consent agreement promulgated by the
Burlington County Special Civil Part, which provides for the
dismissal of a judgment for possession upon payment of arrears or
the expiration of six months, whichever is earlier. (See
Appendix A). In addition, Yanzuk testified that “I tell them
[tenants] that they're on a order to -- an court order to pay the
rent and at the end of the stay they'll go back on their normal
lease unless they're notified otherwise by the complex.”
The consent agreement utilized in Burlington County
generally corroborates Harris's understanding. The form requires
the tenant to specify the amount of arrearages in rent owed the
landlord, and requires the tenant to consent to a judgment for
possession. It allows the tenant to pay the amount due in
installments over a period of six months. Significantly, the
agreement provides that if the tenant does not default on any
installment payment, "the judgment for possession shall be
dismissed" at the end of six months.
The trial court did not refer to the standardized consent
agreement form used in Burlington County when rendering its
decision. For reasons that are not clear from the record, that
form was not used in the present case. A "Consent Order Staying
Warrant of Removal," however, was signed by a judge, Weishoff,
and defendant. That order stayed execution of the warrant until
December 31, 1995, conditioned upon defendant (1) paying the
$621.50 owed and paying her future rent on the first of each
month, (2) not disturbing the peace and quiet of other neighbors,
and (3) not destroying Community's property. The consent order,
however, did not inform defendant, as N.J.S.A. 2A:42-10.7
provides, that payment of the rent during the stay would not
create a new tenancy.
The record of the court proceedings that were conducted on
July 14 was available in cassette form. Rather than referring to
that tape to determine what advice was given tenants in open
court by the judge who presided, the trial court relied on its
own recollection of what it thought was the common practice.
Contrary to the trial judge's recollection, on July 14 tenants
were not informed by the court that they had until 4:30 p.m. to
pay the rent to avoid entry of a judgment for possession.
Moreover, there is no evidence that either Weishoff or his
paralegal made clear to defendant what the phrases “hardship
stay,” “judgment for possession,” or “warrant for removal” meant
in her case. Harris was left with the understanding that under
the terms of the stay, if she paid the back rent plus the added
charges, paid her rent on time, and otherwise complied with the
required conditions during the six month stay, she would be
allowed to remain in possession thereafter.
Defendant's understanding is consistent with an observation
made by this Court in an habitual late payment of rent case.
There, the Court stated that in the case of an uninformed tenant,
against whom eviction was sought despite the payment of late
charges and overdue rent, there was a reasonable basis for the
tenant to "assume that the payment of the late charge was
sufficient to avoid eviction." A.P. Dev. Corp. v. Band,
113 N.J. 485, 499 (1988). Although the landlord concedes that Harris's
expectations were consistent with its general practices in
Burlington County, it nonetheless sought enforcement of the
warrant for removal because of an undefined problem with
defendant's son.
Based on the nearly overwhelming evidence presented, we
conclude that the trial court's finding that Harris understood
that the warrant of removal would be executed at the end of six
months even if she complied with the terms of the stay is "so
wholly insupportable as to result in a denial of justice." Rova
Farms Resort, Inc. v. Investors Ins. Co.,
65 N.J. 474, 483-84
(1974). The trial court's factual findings are unsupported by,
and are inconsistent with, the credible evidence. Ibid.
Consequently, Harris was entitled to relief from any execution of
the warrant for removal.
We turn next to Legal Services' contention that the judgment
for possession was invalid because it was based in part on a
demand for payment of impermissible charges included in the
$379.50 demanded in the complaint and in the additional $242
demanded on July 25. Although Harris failed to question the
reasonableness of the $379.50 demanded in the complaint when the
consent judgment for possession was entered on July 14, that
failure occurred when she was unrepresented by counsel.
Moreover, her challenges relate to the jurisdiction of the court
in a summary dispossess action to consider charges or fees as
additional rent claimed to be part of the basis for eviction.
"Absent some direction from [the trial court], . . . tenants in
[Harris's] circumstances cannot be expected to appreciate what,
if any, recourse is available to them, or what constitutes a
legally-acceptable method of challenging the reasonableness" of
items included as late charges and fees. 447 Associates, supra,
115 N.J. at 533. Landlords that lease subsidized housing such as
that involved here must be charged with the knowledge of the
substantial impact a few extra dollars for late charges will have
on their tenants' budgets and consequent abilities to avoid
eviction for non-payment of rent. See Carteret Properties,
supra, 49 N.J. at 127-28. Harris earned only $123 every fifteen
days. When fees and charges not authorized by law or the
parties' private agreements are included in the arrearages that
give rise to a judgment for possession, a pro se tenant's consent
to judgment for possession represents a mutual mistake. We hold
that Harris is not barred from challenging improper charges or
fees.
Community's complaint alleged damages totaling $379.50.
This amount included $133 for June rent, prior late charges of
$31, late charges for June of $30, damages of $17.50, contract
costs of $25, court costs of $18, and attorney's fees of $125.
Weishoff stated that during court recesses he informs tenants
what they owe “including late charges.” Therefore, it can be
inferred that Weishoff informed Harris that she owed $379.50
during the recess since that was the sum demanded in the
complaint.
By virtue of owning and operating a Section 8 housing
development, Community is subject to regulations promulgated by
the Department of Housing and Urban Development (HUD).
42 U.S.C.A.
§1437f(a); 24 C.F.R. § 881; Community Lease, section
23. HUD Handbook 4350.3, entitled Occupancy Requirements of
Subsidized Multifamily Housing Programs, provides that “[a]n
owner may not evict a tenant for failure to pay late charges.”
Section 4-15(d). Instead, “the owner may deduct accrued, unpaid
late charges from the tenant's security deposit at the time of
move-out if such deduction is permitted under State and local
law.” Ibid. Thus, under the federal regulations, Community was
not permitted to include late charges in the amount it demanded
from defendant as additional rent when it sought a judgment for
possession.
In addition to late charges, the HUD Handbook addresses the
other fees Community sought from Harris. Section 4-16(a)(2)
permits a landlord to charge a tenant for “[d]amages to the unit
or common areas caused by any household member, pet or visitor.”
Provision (a)(4) of this same section authorizes a landlord to
collect “Court filing, Attorney, and Sheriff Fees . . . from
tenants who wish to avoid or settle an eviction suit, provided:
(a) this is permitted under local and State law: and (b) these
fees are reasonable and do not exceed actual costs incurred.”
It is clear that a tenant in New Jersey may contractually
agree to pay reasonable legal fees related to an eviction.
Satellite Gateway Communication v. Musi Dining Car Co.,
110 N.J. 280, 286 (1988); Alcoa Edgewater No. 1 Fed. Credit Union v.
Carroll,
44 N.J. 442, 448 (1965). It is equally clear that New
Jersey courts are required to enforce the provisions of a lease
in the absence of contravening public policy. Marini v. Ireland,
56 N.J. 130, 143 (1970). Courts generally uphold provisions in
leases calling for the payment of reasonable attorneys' fees.
Mury v. Tublitz,
151 N.J. Super. 39, 44 (App. Div. 1977); Center
Grove Assocs. v. Hoerr,
146 N.J. Super. 472, 474 (App. Div.
1977). Courts also generally enforce provisions that define rent
to include damages in the absence of contravening public policy.
Fargo Realty, Inc. v. Harris,
173 N.J. Super. 262, 266 (App. Div.
1980). The written lease, however, must expressly permit a
landlord to recover reasonable attorneys' fees and damages in a
summary dispossess proceeding before a landlord/tenant court may
consider those expenses as additional rent. Ibid; University
Court v. Mahasin,
166 N.J. Super. 551, 553-554 (App. Div. 1979);
Trenton Housing Auth. v. Green,
118 N.J. Super. 544, 545 (App.
Div.), certif. denied,
61 N.J. 159 (1972). Absent a lease or
other agreement making damages and attorney fees additional rent,
it is unlikely that the parties contemplated the issue.
Section 11(a) and (c) of Community's Lease provide for the
recovery of “the cost of all repairs” and “reasonable attorneys'
fees and court costs,” respectively, when “damage is caused by
carelessness, misuse or neglect on the part of the Tenant,
his/her family or visitors” and “the court awards these fees and
costs.” Section 11(c) of the lease also provides that monies due
the landlord for damages, reasonable attorney fees, and costs
connected with the damage claims "become charges due in addition
to rent." The reasonable interpretation of that language is that
the parties contemplated that the reasonable cost of repairing
damages to the rental unit would be considered additional rent
that may be collected in a summary dispossess proceeding.
Community included in its demands from Harris $125 as
attorney fees and $18 in court costs. As noted, Section 4-16(a)(4) of the HUD Handbook permits landlords to collect
"[c]ourt filings, attorney and sheriff fees . . . from tenants
who wish to avoid or settle an eviction suit." The lease,
however, does not contain a provision requiring the tenant to pay
eviction costs or attorney fees associated with an eviction.
Given the continuing shortage of decent subsidized housing,
leases such as the one involved here are essentially contracts of
adhesion to the extent they are not controlled by applicable law.
Such contracts should be strictly enforced against the landlord
who prepared them. Trentacost v. Brussel,
82 N.J. 214, 226
(1980). Because the lease comprised the contractual agreement
between the parties, and it does not obligate the tenant to pay
legal fees if eviction is sought, the landlord is not entitled to
collect the fees associated with eviction as additional rent in
the summary dispossess action. Vineland Shopping Center, supra,
35 N.J. at 470; Trenton Housing Auth., supra, 118 N.J. Super. at
545.
Nonetheless, the HUD Handbook, the Anti-Eviction Act,
N.J.S.A. 2A:18-61.1, the Summary Dispossess Act, N.J.S.A. 2A:18-55, and N.J.S.A. 2A:42-9 all provide that when a tenant, before
the entry of final judgment, pays the outstanding rent together
with the accrued costs of the proceedings, he or she may have the
proceedings dismissed. Housing Auth. of Wildwood v. Hayward,
81 N.J. 311, 315 (1979). Those provisions are inapplicable here
because Harris did not pay the rent before the judgment for
possession was entered. The law in this State is clear that
court filing and service of process fees are taxed as part of the
costs associated with the entry of judgment. R. 4:42-8(a); R.
6:6-4. Attorney fees, however, may not be assessed as part of
taxed costs unless permitted by court rule, R. 4:42-9(a)(7),
Florczak v. United Jersey Bank,
248 N.J. Super. 651, 653 (App.
Div. 1991); statute, R. 4:42-9(a)(8); or contractual agreement.
Satellite, supra,
110 N.J. 285. "[W]e accept, as do most other
courts, the premise of the American Rule that ordinarily society
is best served when the parties to litigation each bear their own
legal expenses." Coleman v. Fiore Bros., Inc.,
113 N.J. 594, 596
(1989) (citations omitted). We find no reason in this case to
deviate from our previously well-established rule. In the
present case, no rule, statute or contractual agreement
authorizes the landlord to collect attorney fees in connection
with the eviction proceedings. University Court, supra, 166 N.J.
Super. at 553. The only attorney fee permitted here is that
associated with collecting the $17.50 for damage to the rental
unit. The record, however, does not establish that a reasonable
demand for payment of the damages was made prior to filing the
complaint.
We hold that of the $379.50 demanded as payment of rent,
fees, and charges that had to be paid on July 14 before 4:30 p.m.
pursuant to N.J.S.A. 2A:18-55 in order to obtain a dismissal of
the proceeding, Harris was obligated to pay rent for June of
$133, $17.50 in damages, $18 in court costs and $25 "contract
cost," which amounts to $193.50. Obviously, the requested
overpayment of $186 had a substantial impact on Harris's budget
since the overpayment represented more than three weeks of work.
There is no question but that the excessive demand for payment
had the clear capacity to prejudice whether Harris would have
been able to avoid the entry of judgment for possession. She
testified that she "didn't have all the money right then and
there."
We now consider whether, under the controlling factual and
legal conclusions, the trial court abused its discretion in
failing to vacate the judgment for possession under Morristown v.
Little, supra,
135 N.J. 274, and Rule 4:50-1(f). In Little, the
Morristown Housing Authority (“Authority”) filed a complaint
against defendant, Cathy Little, for non-payment of rent. 135
N.J. at 277. When Little failed to appear at the eviction
proceeding, the court entered a default judgment. Id. at 278.
The Authority then filed a request for a warrant of removal and
the warrant was executed. Ibid. Although Little offered to pay
the rent three days later, the Authority refused to accept it.
Ibid. Thereafter, Little sought to vacate the judgment for
possession. Ibid.
This Court vacated the judgment for possession pursuant to
Rule 4:50-1(f). That rule authorizes a court to “relieve a party
or the party's legal representative from a final judgment or
order for . . . any . . . reason justifying relief from the
operation of the judgment or order.” We cautioned in Little,
however, that “[c]ourts should use Rule 4:50-1 sparingly, in
exceptional situations; the Rule is designed to provide relief
from judgments in situations in which, were it not applied, a
grave injustice would occur.” 135 N.J. at 289. At the same
time, we emphasized that Rule 4:50-1's boundaries “'are as
expansive as the need to achieve equity and justice.'” Id. at
290 (quoting Palko v. Palko,
73 N.J. 395 (1977) (quoting Court
Inv. Co. v. Perillo,
48 N.J. 334, 341 (1966))). We reasoned that
because Little paid all monies due within three days after
execution of the warrant of removal, had minor children, and the
Authority was a publicly-subsidized housing provider who is
“subject to public-policy responsibilities not generally imposed
on private landlords,” her exceptional circumstances warranted
relief under Rule 4:50-1(f). Id. at 291.
The present case is more compelling than Little and requires
vacating the judgment for possession. Wrightstown Arms is a
Section 8 housing complex constructed under the National Housing
Act specifically to provide low income housing. The majority of
tenants within the complex receive federal rent subsidies. It
is, therefore, governed by federal housing regulations.
Furthermore, Harris has two minor children and an eviction would
visit the same hardship envisioned in Little. She paid the
excessively demanded rent and fees within eleven days after
judgment for possession had been entered and the warrant for
removal had not been executed. Since she was entitled to a grace
period of five days, N.J.S.A. 2A:42-6.1, she was twenty days late
paying the rent.
Apart from the factors expressed in Little, there are other
equitable considerations that also require us to vacate the
judgment for possession. First, Harris may have avoided a
consent judgment on July 14 if she had been informed that she
could pay $193.50 by 4:30 p.m. Instead, Weishoff told her to pay
$379.50. To make matters worse, the judge failed to announce
that she could pay the rent due by 4:30 p.m. and have the
complaint dismissed. Additionally, although Harris appeared pro
se on July 14, the judge never explained to her, or any other pro
se tenant, the legal effect of a consent judgment, hardship stay,
or warrant for removal.
Finally, Community sought execution of the warrant for
removal because of problems with Harris's son, a reason totally
unrelated to the good cause for invoking the court's jurisdiction
and Harris's understanding of the hardship stay, the nonpayment
of rent, or breach of any condition upon which the stay was
granted. Weishoff conceded that the real reason for seeking
execution of the warrant was "not provable in a court of law."
We condemn Community's conduct because it is contrary to our
public policy embedded in the Anti-Eviction Act and the Landlord
Tenant Anti-Reprisal Law, N.J.S.A. 2A:42-10.9. To permit
execution of the warrant of removal in this case would permit a
landlord to use the Anti-Eviction Act as a tool for retaliation.
Les Gertrude Assocs. v. Walko,
262 N.J. Super. 544, 550 (App.
Div. 1993). Summary dispossess proceedings based on late payment
of rent are "designed to secure performance of the rental
obligation." Vineland Shopping Center, supra, 35 N.J. at 469.
They are not intended to be used to evict tenants for unrelated
purposes. We hold that the judgment for possession should have
been vacated pursuant to Rule 4:50-1(f) and Little.
We are persuaded by the arguments advanced by Harris and
Legal Services that the Burlington County Landlord/Tenant Court
eviction procedures are unfair to pro se tenants and require
some revisions in the areas of consent judgments or orders and
information dissemination. We believe it is appropriate to
create statewide procedures for landlord/tenant courts based on
this Court's exclusive jurisdiction to regulate the practice and
procedures in the various courts. Winberry v. Salisbury,
5 N.J. 240, cert. denied,
340 U.S. 877,
71 S. Ct. 123,
95 L. Ed. 638
(1950).
Currently, the rule governing the entry of consent judgments
states:
No supporting papers shall be required for
the entry of a consent judgment unless the
court specifically finds good cause to
require the filing of such submissions.
Consent judgments may be entered in
accordance with this rule at anytime
following service of the complaint, whether
or not an answer or any other responsive
pleading has been served or filed.
It is clear from that rule that no supporting documentation, such
as an affidavit, is required unless the court for good cause or
otherwise requires. Summary dispossess actions are unlike other
types of cases in which consent judgments are utilized.
As a matter of jurisdictional prerequisite, one of the
enumerated statutory "good causes" in the Anti-Eviction Act must
be pleaded and established. Marini, supra, 56 N.J. at 138;
Carteret, supra, 49 N.J. at 125; Chau v. Cardillo,
250 N.J.
Super. 378, 385 (App. Div. 1990). Here, non-payment of rent was
the jurisdictional basis alleged. Absent a default or a legally
correct judgment, a landlord must prove the statutory good cause
by a preponderance of the evidence. “[T]he clear purpose and
spirit of the Anti-Eviction Act [is] to ensure that evictions are
based on 'reasonable grounds.'” 447 Associates, supra, 115 N.J.
at 529. Although Marini predated the Anti-Eviction Act, it is
nevertheless representative of the strong public policy of
protecting tenants from improper evictions by requiring landlords
to establish “good cause” before the court may assert
jurisdiction to remove a tenant. The need for protection is
heightened because the majority of tenants facing eviction and
consequently involved in consent judgments for possession are
unrepresented by counsel.
As we previously noted, judgments may also be entered after
a trial and based on a default. Although tenants involved in
summary dispossess judgments entered after trial, by default or
by consent may be unrepresented by counsel, tenants who enter
into consent judgments are at greater risk. If a trial is
required, the court generally provides assistance to pro se
tenants. The good cause basis for a judgment must be established
by a preponderance of the evidence. The landlord must prove, in
a non-payment of rent case, the amount of unpaid rent that is due
and owing. Thus, a tenant's evidence to substantiate a defense
or to dispute the reasonableness of fees and charges is also
presented.
When a judgment is entered by default based on a tenant's
failure to appear, plead, or otherwise defend, Rule 6:6-3
requires that an affidavit be filed with the court before the
clerk may enter a judgment for possession. In contrast, when a
consent judgment for possession is entered pursuant to Rule 4:41-1(d), no affidavit or substitute is required. The presence of a
tenant who appears, but has not been informed by the court about
his or her rights and obligations, provides the court with