Landlord Wins Lawsuit Due To Good Lease and Procedures – Tenant Barred From Relitigating Issues

Posted in Commercial, Retail & Industrial Real Estate

The New Jersey Appellate Division recently issued an unpublished decision that shows that good leases and procedures can help landlords prevent problems as well as make and save money. Rondell L. Thurman, Et Al vs. Lindenwold Center LLC., A-5364-12T4 (App. Div., March 9, 2015). The trial court dismissed claims of tenants because they were litigated in a prior action in which the landlord sought to collect past-due rents from the tenants.

The case was affirmed on appeal. The case is important for landlords to ensure successful collection and protection against defaulting tenants, especially ones that try to file claims against landlords.

This case involved a breach of a shopping center lease by tenants that failed to pay rent. The landlord filed a summary dispossess action seeking a judgment for possession against tenants due to their failure to pay rent. The landlord then obtained a consent judgment pursuant to which tenants agreed to the entry of a judgment of possession, to vacate the premises, to make a payment, and to surrender their security deposit. The tenants then vacated but failed to pay and the landlord filed a complaint in the Law Division.

The tenants filed an answer alleging that an eminent domain action caused the nullification of the lease and also asserted a counterclaim seeking the return of their security deposit and monetary claims. The landlord moved for summary judgment. The trial court granted the landlord’s motion and entered a judgment against the tenants.

The tenants then filed an action against the landlord seeking damages in the Law Division. The allegations of the tenants included claims that the landlord breached the lease and committed fraud by failing to inform the tenants of a taking or condemnation. The landlord moved to dismiss the complaint arguing that it was barred by res judicata, collateral estoppel, and the entire controversy doctrine. The trial court agreed with the landlord and dismissed the complaint. The trial court found that all of the allegations of the current action were conclusively determined in favor of the landlord in the prior action.

The Appellate Division also agreed with the landlord and affirmed the trial court. The Appellate Division added that “the entire controversy doctrine embodies the principle that the adjudication of a legal controversy should occur in one litigation in only one court”…and the entire controversy doctrine also “serves the purpose of providing finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness.” The Appellate Division then found that because the tenants had litigated the eminent domain issue, they were precluded from doing so again.

For landlords, this decision illustrates that the entire controversy doctrine is a powerful tool in New Jersey and also shows the importance and value of preparing good leases and following proper procedures, both before and during litigation. Although the decision does not reveal the lease or the consent judgment that were signed by the tenants, it is likely that both documents were properly prepared in order to persuade the court to grant the landlord summary judgment. And by quickly obtaining summary judgment, the landlord was able to make and save money.

Do you have the lease and procedures you need to win a lease dispute? Further, should your lease and procedures be improved and updated to maximize your opportunities for recovery for a breach and minimize your risks of loss if you breach? Evaluating your legal issues and addressing them correctly, requires careful review on an individual basis. It is also vital to have counsel familiar with these issues for your commercial, retail, industrial and/or residential property needs.

Are You Ready? New Jersey Supreme Court Sends Affordable Housing Oversight Back to Trial Courts

Posted in Real Estate

On March 10, 2015, setting aside the state’s “non-functioning” affordable housing process, the New Jersey Supreme Court issued a ruling removing executive branch jurisdiction over low- and moderate-income housing and sent enforcement and oversight back to the trial courts. The ruling is the most significant action in 40 years, when the court originally established the so-called Mount Laurel doctrine, which held that municipalities must provide their “fair share” of affordable housing.

In many ways, the recent decision turns back the clock to a time when individuals, developers, and advocates had to sue to prevent municipalities from blocking approval of zoning for affordable housing development. Although generally regarded as unlikely, the Council on Affordable Housing (COAH) – the executive branch body tasked with setting fair housing obligations and approving municipal plans for meeting those obligations – still has the opportunity, as spelled out in the court’s decision, to reverse their inaction and set new rules.

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Free Seminar to Ensure a Successful Estate Plan: “Prepare for Tomorrow by Acting Today”

Posted in News & Events, Trusts & Estates

Stark & Stark Shareholder Robert F. Morris, member of the firm’s Trusts & Estates Group, will be hosting the seminar “Prepare for Tomorrow By Acting Today: Tips for Ensuring a Successful Estate Plan.” This free seminar will be held from 7:00 – 8:00 PM on Tuesday, April 7, 2015 at the Princeton Elks Lodge #2129, 354 Route 518, Blawenburg, New Jersey 08504.

The seminar will outline how individuals can make sure their estate plan is adequate to protect their family’s financial security. Mr. Morris will discuss topics including estate planning strategies, gift and death taxes, credit shelters, estate planning under a will or revocable trust, as well as inter vivos trusts.

Limited space is available for each session and pre-registration is mandatory. Attendees can RSVP to TJ Mohin by calling 609.945.7610 or emailing tmohin@stark-stark.com.

Mercer County Bar Association 2015 Bench Bar Luncheon and Ethics Seminar

Posted in News & Events

Stark & Stark Shareholder John Eory, Co-Chair of the firm’s Divorce Group, will co-chair the Mercer County Bar Association (MCBA)’s 15th Annual Bench Bar Luncheon and Ethics Seminar. Seminar is being held on Wednesday, March 25, 2015, from 12:00 – 2:00 PM at the Trenton War Memorial George Washington Ball Room in Trenton, NJ.

The interactive seminar uses a series of skits to help identify ethical pitfalls, emerging traps and other professional considerations in the practice of law. Attendees will earn 2.0 Ethics/Professionalism Credit Hours.

For more information, or to register to attend, please click here.

Does Equitable Distribution of a Pension Allow for Termination of Alimony Upon Retirement?

Posted in Divorce

It has long been held that in order to equitably distribute a State pension (or other defined benefit pension), you apply a percentage of the coverture fraction to determine what the non-employed spouse shall receive upon the employed spouse’s retirement. The coverture fraction is determined with the numerator being the number of years and months the spouse was employed during the marriage, and the denominator is the number of years and months that the spouse is employed in total. Then, the equitable distribution percentage is applied to that fraction.

For example, if the Husband worked for the State of New Jersey during the marriage for 11 years, but works an additional 25 years after the marriage, the numerator would be 11 and the denominator would be 36 (11+ 25). If the ex-Wife is entitled to 50% of this fraction, she would be entitled to 15% (11/36 x 50%) of the Husband’s ultimate monthly pension benefit upon retirement.

A question has arisen in the case of Krupinski v. Krupinski as to whether the ex-Husband still has to pay alimony once he retires and his ex-Wife starts receiving her portion of his pension. Under the facts of this case, the Husband was earning $46,000 at the date of the divorce and was obligated to pay the Wife $100 per week in alimony. Twenty years later, when the Husband retired, he was earning over $132,000 based on his further education and experience over those post-marital years. His monthly pension benefit is based on his highest three years of salary which came well after the divorce. As a result of applying the coverture fraction, the ex-Wife was entitled to $1,871 per month from the ex-Husband’s pension. The Husband applied to the court to terminate his alimony obligation, and the lower court denied his application, stating that he had to continue to pay the alimony.

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NJ Institute for Continuing Legal Education – 2015 Land Use Update

Posted in News & Events, Real Estate

Stark & Stark Shareholder Gary S. Forshner, member of the firm’s Real Estate, Zoning & Land Use Group and Chair of the New Jersey State Bar Association (NJSBA) Land Use Section, will moderate and present at the New Jersey Institute for Continuing Legal Education (NJICLE)’s “2015 Land Use Update.” The event is being held on Wednesday, March 18, 2015, from 9:00 AM – 4:00 PM at the New Jersey Law Center in New Brunswick. Attendees can earn up to 6.7 NJ CLE credits including 1.0 ethics/professionalism credits.

This full-day event will help you keep abreast of the past year’s judicial decisions – both reported and unreported – as well as regulatory, legislative and ethical issues that impact this constantly evolving area of practice. By the end, you’ll walk away with the essential information and strategies you need to handle the latest and most challenging land use issues in your practice with confidence.

For more information, or to register to attend, please click here.

CLE International Eminent Domain Conference: Preparing Yourself for the Future of Condemnation

Posted in Condemnation, News & Events

Stark & Stark Shareholder Timothy P. Duggan, Chair of the firm’s Eminent Domain Group, will present at the CLE International’s “Eminent Domain Conference: Preparing You for the Future of Condemnation,” which will be held on March 26-27, 2015, at The Westin in San Diego, CA. Mr. Duggan will be Key Note Speaker on the “Featured Panel Presentation” where he will present the segment titled, “What You Could Learn from Our States – and What We Can Learn from You.”

This two-day event will focus on Southern California, but feature a variety of speakers from across the country. Attendees will all gain valuable insights into the inner-workings of the eminent domain field and can earn up to 12 hours of MCLE Credit, including one hour of Ethics, or 12 hours of Appraiser Credit.

To register for the event, click here. For more information about the conference, please click here.

Can Parents Agree to Waive Child Support in Consideration for a Waiver of Visitation?

Posted in Divorce

I have encountered this question, or variations of it, with some frequency over the years. My answer, while surprising to some, is always “no.” This is not to say that parties are barred from entering into settlement agreements concerning their children; on the contrary, New Jersey law strongly favors such settlements and will not interfere with them as a matter of course. There are exceptions to the general rule, however, especially in situations where the parties make an agreement which violates New Jersey public policy.  Nowhere is this more obvious than in when children are involved.

This troublesome issue was recently addressed by the Appellate Division of the Superior Court in the case of E.C. v. C.W., decided on February 25, 2015. The facts, while somewhat convoluted, are that after many rounds of contentious proceedings involving custody of their young son, the parties entered into an agreement which was memorialized by a Consent Order signed by the trial judge stating that E.C. would get full custody of the child in consideration for C.W. never having to pay child support and forfeiting all future visitation. After further reflection, C.W. concluded that he had erred and filed an appeal seeking to set aside the agreement. The Appellate Division agreed.

The crux of the appellate court’s decision was that a trial court cannot, as a matter of law, uphold an agreement which violates New Jersey’s public policy on two fronts; first, the polestar legal issue of a child’s best interests and secondly, the legal doctrine that the right to child support belongs to the child, not to the parent. The appellate court emphasized that a parent’s right to visitation and the duty to support the child are not dependant and cannot be traded off.

The case is a good synopsis of New Jersey law on the subject of a court’s inherent authority to protect the best interest of a child. It is strongly recommended that a family law attorney be consulted before one enters into a settlement concerning his or her child(ren) in order to avoid later legal problems.

Do You Have the Property Management Agreement You Need?

Posted in News & Events, Stark News

Stark & Stark Shareholder Jerry A. Nelson, member of the Commercial, Retail Industrial, and Multi-Family Real Estate Group, authored the article “Do You Have the Property Management Agreement You Need?” which was published on February, 27 2015 in the Mid Atlantic Real Estate Journal.

The article discusses the importance of having the right property management agreements to help you quickly make and save money. “However, one size does not fit all,” Mr. Nelson says, “It is imperative that your management agreement be tailored for your specific needs and comply with appropriate laws in your particular state.”

If you want to make sure that you have the property management and related agreements you need to be successful, it is important that you speak with experienced counsel.

You can read the full article by clicking here.

New Jersey Creditor Responsibility Law

Posted in Community Associations
As of July, 2014, a change was made to an existing statute, NJSA 46:10B-51, that requires all creditors initiating a mortgage foreclosure proceeding against residential property to provide the municipality information related to that action. Creditors must provide the following information:
  • The name and contact information for the representative of the creditor responsible for receiving complaints of violations of code or property maintenance;
  • Street address, block and lot number of the residential property;
  • Name and contact information of an individual located in the state of New Jersey authorized to accept service on behalf of the foreclosing creditor; and,
  • Whether or not the residential property is subject to the Fair Housing Act.
Additionally, creditors must provide each municipality’s clerk a listing of all residential properties in that municipality for which the particular creditor has commenced foreclosure proceedings. “Creditor” is defined in Assembly Bill A347 as a federal or State chartered bank, savings bank, savings and loan association or credit union, any person required to be licensed under the provisions of the “New Jersey Licensed Lenders Act,” P.L.1996, c.157 (C.17:11C-1 et seq.), and any entity acting on behalf of the creditor named in the debt obligation including, but not limited to, servicers.

The thrust of this statute is to require a foreclosing creditor to abate nuisances or code violations if a residential property is abandoned or vacated after the foreclosure proceeding has been initiated. If a foreclosing creditor has been advised by a municipality to abate nuisances or code violations, and fails to do so within 30 days, substantial fines or imprisonment may occur.

Although the responsibility for maintenance of the outside of Condominium Associations belongs to the Associations, this law can be especially helpful to homeowner associations where the units are owned in fee simple. However, maintenance or code violations within a condominium unit should also be reported to the municipality to force the foreclosing creditor to address these issues.