EVICTING AN OCCUPANT WHO IS NOT ON THE LEASE

It is critical for landlords to identify within their residential leases all persons who are permitted to occupy the premises. Otherwise, the tenant could create an overcrowding situation for which the landlord could be liable. Or the landlord may have to deal with an unauthorized tenant.

For this reason, also, it is crucial for a buyer of rental property to insist upon the production of all residential leases for review as a contract contingency. And if there is no written lease, then the buyer should insist on a written memorandum of the lease terms signed by the seller and the tenant, as a condition of the purchase transaction.

In a recent unpublished Appellate Division decision, the court was faced with a situation where a landlord had entered into a written lease for an apartment, after which the tenant’s son moved in without the landlord’s knowledge or consent. Later, the tenant moved out but her son remained. The tenant continued to pay the rent by her checks, and her son gave her cash to cover the checks.

The landlord later sold the building to a new owner who gave the son a notice to cease his unauthorized occupancy, followed by the filing of an eviction action when the son failed to vacate. The son opposed the eviction action, claiming he was an authorized co-tenant.

In order to remain in the apartment, the son needed to prove his continuous occupancy, substantial contribution to the tenancy’s financial obligation, and the landlord’s acknowledgment of and acquiescence to his financial contribution. The trial judge found that there was no proof that the son had made any payment to the landlord and that the landlord had no idea that the son was giving rent money to his mother. Further, the court held that there was no proof that either the landlord or the new owner had any knowledge of the son’s occupancy of the apartment. The Appellate Division agreed with the trial judge.

The New Jersey Anti-Eviction Act provides sweeping rights to residential occupants with the legal status of “tenants”. It is important to establish who and who is not legally residing in an apartment because later eviction could (as in the above case) become fraught with difficulty. Putting an experienced real estate litigation attorney on your team will make a big difference.

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