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Landlords Can Only Sue For What Is Owed Now

by | Jan 9, 2017 | Uncategorized


A December 12 2016 decision by an Appeals Court Judge considered a trial judge’s dismissal of a landlord’s lawsuit against its tenant for nonpayment of rent. The property owner claimed that the trial judge should not have denied its application to correct the lawsuit papers to include rent that was not due and owing at the time the lawsuit was first filed. It also disputed the judge’s decision to award legal fees to tenant’s attorney, who worked for a legal aid society. The higher court ultimately decided that the decision to dismiss the nonpayment of rent claim was correct, but the counsel fees award as a punishment of the landlord was not.

The landlord filed a complaint using the form approved by the NJ Supreme Court. It claimed that it possessed the property under a written lease since March 1, 2014 and that rent was unpaid for the month of February 2015 for $850 and asked for $60 in court fees. The form also said that “the date that the next rent is due is 3/1/15…If this case is scheduled for trial on or after that date, the total amount you must pay to have this complaint dismissed is $1760.”

The trial happened on March 26, 2015. The landlord appeared representing itself and the tenant brought an attorney from a legal aid organization. The judge dismissed the case and awarded attorney’s fees against the landlord. The judge said that since February’s rent was paid by the time of trial, continuing the claim was an abuse of the legal process even though the landlord wanted to amend the lawsuit to include March’s unpaid rent. The judge said that it must bring a separate claim for March. It was clear that the judge wasn’t very happy and he told the lawyer that he was allowed to file for an award of fees.

The Defendant’s attorney submitted an application to the court for an award of fees in the amount of $1,160, representing 5.8 billable hours at $200 an hour. On April 7th, the trial judge awarded that amount. A failure to pay within 30 days would and indeed did result in a default judgment against the landlord.

On appeal, the landlord submitted a letter from February that said that the tenant would not longer receive emergency assistance with rent as of February 28th. The trial judge refused to acknowledge the letter, even though it was brought up at the trial.

The law is very clear, however, that someone cannot bring a claim for something that is not yet legally owed; even if there is proof that it will be owed, in a rent dispute. So the complaint was properly dismissed.

But the Appeal Judge disagreed with the counsel fees award. In this state, a court may only award attorney’s fees in specific actions, (i.e. family court cases, foreclosure, or actions expressly defined by statute). “Here, the trial judge decided…to award counsel fees to defendant as a [penalty] against [the landlord] for ‘abuse of process’.”

That was not allowed in landlord-tenant cases. The award was reversed and vacated. But all landlords must keep in mind that they can only bring a claim for rent that is due and owing when the lawsuit is filed. A new case must be brought for each and every subsequent unpaid month of rent. Or, a claim can be brought for several months of unpaid back rent. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.

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