A tenant can be evicted only if the landlord follows each of the steps in the eviction process and if a judge is convinced that there is cause for eviction under the Anti-Eviction Act. A tenant can defeat an eviction complaint by showing that the steps in the eviction process were not correctly followed, or that cause for eviction does not exist, or that the landlord has not met other duties under the law, particularly the duty to provide the tenant with safe and decent housing. This section explains the most common defenses used by tenants to defeat an eviction in court.
Tenants who have to defend themselves in an eviction case without a lawyer should read this section carefully. Acting as your own lawyer is called appearing pro se. Landlord-tenant law can be very complicated, so you should make every effort to get a lawyer. If you have to appear pro se, go through each of the defenses explained below and use the defenses that fit the facts of your case.
Unauthorized practice of law
The judge cannot hear an eviction case if your landlord is a corporation unless the corporation is represented in court by a lawyer. The letters “Inc.” after the landlord’s name mean that it is a corporation. The corporate landlord’s case must be dismissed if someone who is not a lawyer prepared the complaint and summons. Unfortunately, some courts may bend the court rules and allow property managers, stockholders, and others who are not lawyers to act for the corporate landlord. This is improper under New Jersey law (except that a partner in a general partnership may file papers and appear pro se). Cite: Rule 6:10 and Rule 1:21-1(c).
The Landlord Registration Act
The law requires landlords who rent houses, apartments, or buildings to register certain information with the clerk of the city or town where the building is located. If your building contains three or more apartments, the landlord also must register with the New Jersey Department of Community Affairs in Trenton. The law requires that the landlord list his or her name and address and the telephone number of someone—such as the superintendent, janitor, or other person—who can be reached at any time and who is responsible for ordering emergency repairs and receiving complaints from tenants. The landlord must display this information at the property in a place where tenants can see it, and the landlord must give this information in writing to each tenant. Cite: N.J.S.A. 46:8-28 and 29.
Failure to register
The registration law prevents a landlord from evicting you if the building is not properly registered. If your landlord has not registered the property or has not given you a copy of the registration, the court cannot enter a judgment to evict you in favor of the landlord. In most eviction cases where a landlord has not registered, the judge will postpone hearing the case to give the landlord time to register. Once the landlord registers, the court can then hear the case and enter a judgment for eviction. The postponement can give you extra time to move or to obtain the rent you may owe. Some judges do not follow this procedure and will enter a judgment anyway, if the landlord agrees to register the property later. This practice is clearly wrong. Cite: N.J.S.A. 46:8-33 and Iuso v. Capehart, 140 N.J. Super. 209 (App. Div. 1976).
If your landlord is not registered, you can file a complaint in Superior Court or municipal court. A landlord can be fined up to $500 for failing to register. Cite: N.J.S.A. 46:8-35.
Improper notice or no notice
You can get an eviction complaint dismissed if the landlord did not give you a proper notice to cease and/or a proper notice to quit before taking you to court. This is a very important and common defense. As explained in the section, The Nuts and Bolts of Fighting Evictions, these notices must specifically and in detail describe the conduct that is causing eviction and give you the correct amount of time before going to court. Notices must be very specific so that tenants know exactly what is expected of them and how to prepare for trial. Landlords must “strictly comply” with notice requirements and, if they do not, you should argue that the eviction action should be dismissed. See Notices required before an eviction suit. Remember that the landlord does not have to give you any notice to evict you for nonpayment of rent. Cite: N.J.S.A. 2A:18-61.2.
Carefully read the notice to cease and the notice to quit before you go to court. If you only received a notice to quit, find out if the Anti-Eviction Act requires the landlord to first serve you with a notice to cease.
Here are some common examples of improper notices. If you think the notice that you receive from your landlord is improper in these or other ways, or even if you are not sure, tell the judge, give him or her the notice to review, and ask that the eviction complaint be dismissed because you received improper notice.
You receive a notice to quit telling you that you have to move for playing loud music at night. You did not receive a notice to cease first. The notice is improper because you must receive both notices in their correct order.
You receive a notice to cease that tells you to stop playing loud music at night. The landlord then sends a notice to quit that tells you to move because you have too many visitors. The notice is improper because the notice to quit must relate to the same type of conduct complained about in the notice to cease.
On March 31, your landlord sends you a notice to quit stating that you must leave your apartment in one month, or by April 30, because she claims that you have not obeyed her notice to cease, which told you to stop violating the rules in your lease. The landlord does not wait until April 30 to start the eviction case. Instead, she files an eviction complaint on April 20, and you are served with the summons and complaint saying that you must appear in court on May 3. This notice is improper because you did not get the full one-month notice to quit. The landlord cannot start the eviction case until the time stated in the notice to quit has run out.
You receive a notice to quit that tells you to move because you broke one of the rules in the lease. The notice does not describe the specific rule that you broke and specifically what you did to break the rule. This notice is improper because the notice must tell you exactly what rules were broken and how you broke them (dates, times, description). Cite: A.P. Development Corp. v. Band, 113 N.J. 485 (1988).
Failure to follow federal notice requirements and procedures
Tenants who live in public housing or in other subsidized buildings may be entitled to certain notice and procedural rights over and above what is required by state law. For state law notices, see Grounds for eviction (N.J.S.A. 2A:18-61.1).
If you are being evicted from public housing or other subsidized buildings, or you are being denied Section 8 assistance, or you are being terminated from Section 8, you should check with a Legal Services attorney to make sure that you have received the proper notice.
Public housing notice requirements
If you live in public housing, you are entitled to the following notices before the housing authority terminates your lease.
The housing authority must give you a 14-day notice before it terminates a lease for nonpayment of rent. Cite: 24 C.F.R. § 966.4(l)(3)(i)(A).
In three other types of cases, the housing authority must give you a reasonable notice of up to 30 days, depending on how serious the situation is. These are cases where a housing authority seeks to end a lease for criminal activity, threats, or having a felony conviction. In any other case, a housing authority must give you 30 days’ notice before it can try to evict you in court, unless state law allows for a shorter notice. Cite: 24 C.F.R. § 966.4(l)(3)(i)(B)(C).
The notice of lease termination must:
state the reasons for eviction,
inform you of your right to reply, and
inform you of your right to examine housing authority documents related to the termination or eviction before trial.
When the housing authority is required to give you the opportunity for a grievance hearing, the notice must also inform you of your right to request formal or informal hearings with the housing authority. Cite: 24 C.F.R. § 966.4 (l)(3)(ii).
You may not always have a right to a grievance hearing before the housing authority, such as in cases involving criminal activity. In those cases, the notice of lease termination shall also state:
that you are not entitled to a grievance hearing,
that the housing authority must go to court to try to evict you,
that the government (HUD) has approved this court procedure,
the reasons for the eviction, and
that you have the right to examine documents related to the termination or eviction before trial. Cite: 24 C.F.R. § 966.4(l)(3)(v); 24 C.F.R. § 966.4(m).
It is important that you contact a Legal Services attorney to make sure that your rights are protected and that you have received the proper notice.
Subsidized housing notice requirements
If your building receives a subsidy, but you have a private landlord (not a housing authority, and not a Section 8 voucher), you may have the following rights.
Tenants who live in most subsidized buildings are entitled to a notice that:
specifies the date the tenancy will be terminated;
states in detail the reasons for termination;
advises the tenant that he or she has 10 days to discuss the proposed termination with the landlord; and
advises the tenant that if the tenant does not leave, the landlord may file suit to evict, at which time the tenant may present a defense. Cite: HUD Handbook 4350.3 REV-1, Section 8-13, B2, p. 8-14; Family Model Lease, Section 23e, Appendix 4-A, p. 12.
In certain cases, tenants may be entitled to a 30-day notice of termination of tenancy. Cite: HUD Handbook 4350.3 REV-1, Section 8-16, B2, 3, p. 8-20; Family Model Lease, Section 23e, Appendix 4-A, p. 12. In other cases, the notice of termination is the time period required by state law.
The above rights to notice should be written in your lease. Unless the housing authority or other subsidized landlord gives you the proper notice, you cannot be evicted, and the case must be dismissed. Cite: Housing Authority of Newark v. Raindrop, 287 N.J. Super. 222 (App. Div. 1996); Riverview Towers Associates v. Jones, 358 N.J. Super. 85 (App. Div. 2003).
If you are not sure what type of housing you live in, you may check the Guide to Affordable Housing in New Jersey (from the New Jersey Department of Community Affairs ).
Section 8 voucher notice requirements
If you are a Section 8 voucher holder, you are entitled to the notices that you would receive under state law. For state law notices, see Grounds for Eviction (N.J.S.A. 2A:18-61.1). You are not entitled to any notices over and above what you would receive under state law.
If you are a Section 8 voucher holder, and you receive an eviction notice from your landlord, you must promptly give the public housing authority a copy of the eviction notice. Cite: 24 C.F.R. § 982.551(g). Your landlord must give the public housing authority a copy of any eviction notice that the landlord gives you. Cite: 24 C.F.R. § 982.310(e)(2)(ii).
Improper eviction complaint
An eviction suit can be dismissed by the judge if the eviction complaint was not prepared in the correct way. This often happens, and you should read the complaint you received to make sure it is correct. Here are some examples of an improper eviction complaint.
The complaint does not say why the landlord wants you out or does not describe the cause for eviction under the Anti-Eviction Act.
In a nonpayment of rent eviction, the complaint must include only the amount of rent legally due. The landlord cannot add charges that are not legally part of the “rent.” See pages Late Charges
, Attorney's Fees
, and Grounds for eviction (N.J.S.A. 2A:18-61.1) part a
. for more information about charges that cannot be included in the rent.
The reason stated in the complaint for your eviction is not one of the causes for eviction in the Anti-Eviction Act. (See Causes for Eviction
in the section, The Nuts and Bolts of Fighting Eviction)
The reason stated in the complaint why the landlord wants you out is not the same as the one in the landlord’s notice to cease and/or notice to quit. The cause for eviction in the complaint must match the cause given in the notice to cease and/or notice to quit.
The judge should dismiss an improper eviction complaint because eviction cases are set up to be quick, and the landlord can always start the eviction process over again. Some judges will incorrectly allow a landlord to amend or change the complaint in court, so that the complaint is proper and the case can proceed to hearing. You should object if the judge allows an on-the-spot change to the complaint. If the judge allows the amendment anyway, ask to postpone the hearing so that you have time to prepare a defense to the amended or changed complaint.
Paying the rent
A common defense to an eviction for nonpayment of rent is to show that the rent has already been paid. This is why it is very important to get a rent receipt (signed by the landlord) for each rent payment, even if you pay by check or money order. You can prove that the rent has been paid by bringing receipts to court to show the judge. What if you agree that you owe the rent or you have a hearing and the judge finds that you owe rent? You can still have the eviction dismissed by paying the rent and court costs to the court before the court closes on the day of the hearing. Cite: N.J.S.A. 2A:18-55.
For example, at the end of your hearing, the judge finds that you owe $500 and enters a judgment for possession for nonpayment of rent. You immediately leave the court and call a relative or friend who agrees to lend you the money. The case against you can still be dismissed, and you will not be evicted if you can get the money (including court costs) to the courthouse and pay it to the court clerk before the court closes for the day, usually at 3:30 or 4:00 p.m.
The rent money and court costs are paid to the clerk of the Special Civil Part of the Superior Court. The clerk does not take personal checks. Cashier's checks or money orders are best and should be made out to Treasurer, State of New Jersey. The court clerk will give you a receipt and send the money to your landlord. The court clerk also will dismiss the eviction complaint against you. If you pay all of the rent to the court clerk before the hearing on your complaint, you should go to the hearing anyway to make sure that the judge knows you have paid the rent and dismisses the complaint.
Paying for utility bills
If your landlord is supposed to pay for utilities and does not pay the bill, you may be in danger of having your utilities shut off. If you receive a notice from an electric, gas, water, or sewer public utility that your service is in danger of being shut off, you may pay the utility to keep the service going. You may then deduct this amount from your rent, and the landlord cannot evict you because you have not paid that amount as rent. Cite: N.J.S.A. 2A:18-61.1(a).
If you pay for utility bills, keep the notices and your receipts from the utilities because the landlord may still try to evict you for nonpayment of rent.
Failure to obtain a certificate of occupancy
A municipality may have an ordinance that requires a landlord to obtain a certificate of occupancy (also known as a “C.O.”) before the landlord can rent a unit. The certificate of occupancy, issued by the municipality, ensures that apartments meet code standards before they are rented. Failure by a landlord to obtain a certificate of occupancy can be used to show that the conditions in the apartment are poor and that this violates the landlord’s duty to provide habitable housing. The conditions of the apartment determine how much rent is due. Cite: McQueen v. Brown and Cook, 342 N.J. Super. 120, aff’d 175 N.J. 2000 (2002). The court in this case said that if a landlord does not have a C.O., he or she must apply for one before trying to evict a tenant.
Failure to provide safe and decent housing
The Section Repairs and Habitability explains the landlord’s duty to provide safe and decent housing. It also explains the various ways you can use your rent to force your landlord to make repairs in your apartment or house. These ways include repair and deduct—using rent to make repairs yourself and then deducting the cost of the repair from the rent. Another way is rent withholding—keeping your rent payments from the landlord until he or she makes needed repairs.
Both repair and deduct and rent withholding involve not paying the landlord the rent when it is due. This means that if you take these steps, your landlord could take you to court for nonpayment of rent. In court, your defense to the landlord’s claim for rent will be that he or she failed to provide you with safe and decent housing. You should review those sections that explain repair and deduct, rent withholding, and rent abatement. It is important to remember that if you use repair and deduct and rent withholding as a defense to nonpayment of rent, you will have to show the court how serious the problems are in your apartment. For rent withholding, you may also be required to deposit with the court the full amount of rent you have withheld before you can get a hearing on your defense that your housing is unsafe and in need of repair. The judge does not have to do this, however, and can simply adjourn the case without requiring you to deposit the rent. To be safe, when you go to court after not paying the rent, you should take with you the full amount of rent you have withheld in cash, a certified check, or a money order. The court will not accept personal checks.
The landlord is wrong or is lying
If what the landlord says in the complaint is not true, you have the right to deny it. The landlord then has to prove that what he or she says is true. The law requires the landlord to prove that the complaint is based on facts. But be careful: sometimes a judge will believe the landlord over a tenant, so you should be ready to prove that you are right and that the landlord is wrong. You can do this by taking with you to court witnesses, photos, letters to or from the landlord, receipts, and anything else that might help prove your case.
Waiver—the landlord knew about it but continued the tenancy
The landlord waives, or gives up, his or her right to evict you if he or she knows that you have been breaking the lease or any rules of the tenancy but still accepts your rent payment during this period. Cite: N.J.S.A. 46:8-10. Here are some examples of a waiver:
The landlord sends you a notice to cease playing loud music and then sends you a notice to quit by March 31. If the landlord accepts your April rent payment, the landlord has waived the notice to quit. Cite: Royal Associates v. Concannon, 200 N.J. Super. 84 (App. Div. 1985). While the acceptance of rent is a very important factor in determining whether the landlord has waived the notice to quit, it may not be sufficient, depending upon the facts of a particular case.
Your lease says that no pets are allowed, but the landlord has allowed you to have a pet since you moved in, and other tenants have also been allowed to have pets.
The landlord sends a notice to cease but then later sends you other notices that contradict the notice to cease or that do not threaten the tenant with eviction. Cite: A.P. Development Corp. v. Band, 113 N.J. 485 (1988).
Retaliation—the landlord wants to get even
The law does not allow a landlord to evict you to get even for asserting your rights under the law or for enforcing your rights under the lease. The landlord also cannot evict you to get even for your complaining about conditions in your house or apartment to the board of health, building inspector, housing authority, or any other government agency. Finally, the landlord cannot evict you to get even for your involvement with a tenants association or any lawful organization. Each of these types of getting even (retaliation) are defenses to the eviction action. If you can prove that your landlord is trying to evict you in retaliation, the case will be dismissed. Cite: N.J.S.A. 2A:42-10.10 and 10.11. Be prepared to prove retaliation before you go to court.
If one of the landlord’s reasons for evicting you is that you have complained to a government agency, you are protected from eviction by law. This is true even if the landlord has other reasons for trying to evict you, such as wanting to get a higher rent from a new tenant. Cite: Silberg v. Lipscomb, 117 N.J. Super. 491 (1971); Les Gertrude Associates v. Walko, 262 N.J. Super. 544 (App. Div. 1993).
For information about citations, and how to get more information about a particular law, see Finding the Law in the Landlord-Tenant section.