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Recent Court Order Will Permit Commercial Evictions to Proceed in Certain Circumstances

February 12, 2021
Written by Robert L. Gutman, ESQ.

As I am sure most of you already know, all eviction actions (both residential and commercial) have been stayed since mid-March last year and there are approximately 60,000 cases waiting to be heard throughout the state.

There is no news as to when the Courts intend to reopen or how they intend to address the large backlog in evictions. However, since early last summer, the Court did permit certain applications to be made with regard to residential evictions where emergent issues (except for non-payment of rent) arose including the death of the tenant and intentional and significant damage to the premises.

The Landlord/Tenant bar has complained that consideration be given to removing the stay as to commercial evictions as the parties are normally represented by counsel and that commercial tenant lockouts are not stayed by Governor Murphy’s Executive Order 106. This past week the NJ Supreme Court agreed to open the door a bit by allowing commercial landlords to bring similar emergent applications:

1) Where the tenant has abandoned the premises or has ceased operating

OR

2) Where the landlord is “facing” a mortgage foreclosure or tax lien.

The second part is where I expect the majority of applications to focus and the distinction will be on the word “facing” in the Order itself versus “pending” which is used in the cover letter from the Court. While I assume the pendency of a foreclosure action and the issuance of a tax lien would easily satisfy the requirement, I anticipate that landlord counsel will argue that the landlord’s inability to pay its mortgage or real estate taxes as a result of the lack of payment of rent should satisfy the requirement that the landlord is “facing” foreclosure or tax lien and may depend on the amount owed by the tenant and what percentage the tenancy comprises of the total monthly rent paid to the landlord on the entire commercial premises.

Either way, I think this Order will open the flood gates to numerous commercial evictions and applications to the Court and I wanted to make sure you were aware in case your clients call you to discuss their matters. I have successfully prosecuted and defended many such applications in the residential context and I would be happy to assist your clients should the need arise.

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