RULE 4:18. DISCOVERY AND INSPECTION OF DOCUMENTS
AND PROPERTY; COPIES OF DOCUMENTS
4:18-1. Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes; Pre-Litigation Discovery
(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on behalf of that party, to inspect, copy, test, or sample any designated documents (including writings, drawings, graphs, charts, photographs, sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, by the respondent into reasonably usable form), or to inspect, copy, test, or sample any designated tangible things that constitute or contain matters within the scope of R. 4:10-2 and that are in the possession, custody or control of the party on whom the request is served; or
(2) to permit entry upon designated land or other property in the possession or control of the party on whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of R. 4:10-2.
(b) Procedure. The request may, without leave of court, be served on the plaintiff after commencement of the action and on any other party with or after service of the summons and complaint on that party. A copy of the request shall also be simultaneously served on all other parties to the action. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. The party on whom the request is served shall serve a written response within 35 days after the service of the request, except that a defendant may serve a response within 50 days after service of the summons and complaint on that defendant. On motion, the court may allow a shorter or longer time. The written response, without documentation annexed but which shall be made available to all parties on request, shall be served by the party to whom the request was made on all other parties to the action. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for objection. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information or if no form was specified in the request, the responding party shall state the form or forms it intends to use. The party submitting the request may move for an order of dismissal or suppression or an order to compel pursuant to R. 4:23-5 with respect to any objection to or other failure to respond to the request or any part thereof or any failure to permit inspection as requested. If a party who has furnished a written response to a request to produce or who has supplied documents in response to a request to produce thereafter obtains additional documents that are responsive to the request, an amended written response and production of such documents, as appropriate, shall be served promptly. Unless the parties otherwise agree, or the court otherwise orders: (1) A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request; (2) if a request does not specify the form or forms for producing electronically stored information, a responding party shall produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and (3) a party need not produce the same electronically stored information in more than one form.
(c) Persons Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land. Pre-litigation discovery within the scope of this rule may also be sought by petition pursuant to R. 4:11-1.
Wednesday, February 24, 2010
Sunday, February 14, 2010
2002 - 2004 REPORT OF THE SUPREME COURT COMMITTEE ON THE RULES OF EVIDENCE
2002 - 2004 REPORT OF THE
SUPREME COURT COMMITTEE ON
THE RULES OF EVIDENCE
January 30, 2004
i
TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION...............................1
A. Proposed Amendments to Eliminate Gender-Biased
Language..................................................................................................................1
II. RULE AMENDMENTS CONSIDERED AND REJECTED ...................................19
A. Proposed Amendment to N.J.R.E. 604 and Creation
Of a New Rule Governing Use of Approved
Interpreters for Certain Depositions.......................................................................19
B. Proposed Amendment to N.J.R.E. 803(c)(6) –
Business Records Exception to the Hearsay Rule .................................................20
C. Proposed Hearsay Exception for Domestic
Violence Cases.......................................................................................................21
III. MATTERS HELD FOR CONSIDERATION............................................................22
A. Uniform Mediation Act..........................................................................................22
IV. CONCLUSION .............................................................................................................23
1
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendments to Eliminate Gender-Biased Language
In 1984, the New Jersey Supreme Court Task Force on Women recommended that all
court rules be revised to use gender-neutral language. A similar recommendation was made by
the Supreme Court Committee on Women in the Courts in its 1990-92 rules report. In a letter
dated October 17, 1994, Chief Justice Robert Wilentz reported to the Committee on Women in
the Courts that many rules committees had proposed rule changes to eliminate gender-biased
language. He asked that if committee members came across any remaining problems, Marilyn
Slivka, Court Executive, Administrative Office of the Courts (“AOC”), call them to the
attention of staff of the appropriate rules committees.
In 2002, Ms. Slivka brought to the attention of the Supreme Court Committee on the
Rules of Evidence (“the Committee”) that many evidence rules still contain gender-biased
language. At the request of the Committee, Ms. Slivka proposed changes to the evidence rules
that substituted gender-neutral language for the biased language. The Committee recommends
that the Court adopt these proposed changes to the evidence rules, which eliminate genderbiased
language, without changing the substantive meaning of the rules. Changes are proposed
to the following rules: N.J.R.E. 101(b)(2); N.J.R.E. 303(c); N.J.R.E. 404(a) and (b); N.J.R.E.
602; N.J.R.E. 705; N.J.R.E. 801(a)(2); N.J.R.E. 803(c)(5)(B), (22), (26), (27)(a); 804(a),
(a)(2), (a)(3), (a)(4), (b)(6), and (b)(7).
The Committee is not recommending any revisions to the evidence rules found in
Article V, Privileges, because these rules merely restate New Jersey statutes that create
privileges.
2
Rule 101. Scope; definitions
(a) Applicability; exceptions.
(1) Privileges. The provisions of Rule 500 (privileges) shall apply, without relaxation,
to all proceedings and inquiries, whether formal, informal, public or private, and to all
branches and agencies of government.
(2) Court proceedings; relaxation. These rules of evidence shall apply in all
proceedings, civil or criminal, conducted by or under the supervision of a court. Except
as provided by Paragraph (a)(1) of this rule, these rules may be relaxed in the following
instances to admit relevant and trustworthy evidence in the interest of justice:
(A) actions within the cognizance of the Small Claims Section of the Special
Civil Part of the Superior Court, Law Division, and the Small Claims Division of
the Tax Court whether or not the action was instituted in a Small Claims Section
or Division;
(B) in accordance with a statutory provision;
(C) proceedings in a criminal or juvenile delinquency action in which
information is presented for the court's use in exercising a sentencing or other
dispositional discretion, including bail and pretrial intervention and other
diversionary proceedings;
(D) to the extent permitted by law, proceedings to establish probable cause,
including grand jury proceedings, probable cause hearings, and ex parte
applications;
(E) proceedings to determine the admissibility of evidence under these rules or
other law.
(3) Administrative proceedings. Except as otherwise provided by Paragraph (a)(1) of
this rule, proceedings before administrative agencies shall not be governed by these rules.
(4) Undisputed facts. If there is no bona fide dispute between the parties as to a
relevant fact, the judge may permit that fact to be established by stipulation or binding
admission. In civil proceedings the judge may also permit that fact to be proved by any
relevant evidence, and exclusionary rules shall not apply, except Rule 403 or a valid
claim of privilege.
(5) Affidavit in lieu of testimony. These rules shall not be construed to prohibit the use
of an affidavit in lieu of oral testimony to the extent permitted by law.
(b) Definitions. As used in these rules, the following terms shall have the meaning hereafter
set forth unless the context otherwise indicates:
(1) "Burden of persuasion" means the obligation of a party to meet the
requirements of a rule of law that the fact be proved either by a preponderance of
3
the evidence or by clear and convincing evidence or beyond a reasonable doubt,
as the case may be.
(2) "Burden of producing evidence" means the obligation of a party to introduce
evidence when necessary to avoid the risk of a judgment or peremptory finding
against [him] that party on an issue of fact.
(3) "Writing" has the meaning given in the definition contained in Rule 801(e).
(c) Repeal. The adoption of these rules of evidence shall not operate to repeal any
existing statute by implication. However, where an existing statute has been expressly
superseded pursuant to N.J.S.A. 2A:84A-40 by an official note heretofore or hereafter
appended to a rule of evidence, such statute shall have no further force or effect.
4
Rule 303. Presumptions against the accused in criminal cases
(a) Scope. Except as otherwise provided by law, in criminal cases presumptions against an
accused, recognized at common law or created by statute, including statutory provisions that
certain facts are prima facie evidence of other facts or of guilt, are governed by this rule. As used
in this rule, the term "element of the offense" shall include any issue on which the prosecution
bears the burden of persuasion beyond a reasonable doubt.
(b) Submission to jury. The judge may not direct the jury to find a presumed fact against the
accused. If a presumed fact establishes an element of the offense, the judge may submit the
question of the existence of the presumed fact to the jury upon proof of the basic fact but only if
a reasonable juror on the evidence as a whole, including the evidence of the basic fact, could find
the presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the
question of its existence may be submitted to the jury provided the basic facts are supported by
sufficient evidence or are otherwise established, unless the judge determines that reasonable
jurors on the evidence as a whole could not find the existence of the presumed fact.
(c) Instructing the jury. Whenever the existence of a presumed fact against the accused is
submitted to the jury, the judge may instruct the jury that it may regard the basic fact as
sufficient evidence of the presumed fact but that it is not required to do so. In addition, if
the presumed fact establishes guilt or is an element of the offense, the judge shall instruct
the jury that its existence, on all of the evidence, must be proved beyond a reasonable
doubt. The judge shall not use the word “presumed" or “presumption" in [his] instructions
to the jury.
5
Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes;
evidence
(a) Character evidence generally. Evidence of a person's character or [a trait of his] character
trait, including a trait of care or skill or lack thereof, is not admissible for the purpose of
proving that the person acted in conformity therewith on a particular occasion except:
(1) Character of accused. Evidence of a pertinent trait of the accused's character
offered by the accused, which shall not be excluded under Rule 403, or by the
prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of
the crime offered by an accused or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the victim offered by the
prosecution in a homicide case to rebut evidence that the victim was the first
aggressor;
(3) Character of witness. Evidence of the character of a witness as provided in
Rule 608.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to
prove the disposition of a person in order to show that [he] such person acted in conformity
therewith. Such evidence may be admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident
when such matters are relevant to a material issue in dispute.
(c) Character and character trait in issue. Evidence of a person's character or trait of character is
admissible when that character or trait is an element of a claim or defense.
6
Rule 602. Lack of personal knowledge
Except as otherwise provided by Rule 703 (bases of opinion testimony by experts), a
witness may not testify to a matter unless evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the testimony of [the] that witness [himself].
7
Rule 705. Disclosure of facts or data underlying expert opinion; hypotheses not
necessary
The expert may testify in terms of opinion or inference and give reasons therefore
without prior disclosure of the underlying facts or data, unless the court requires
otherwise. The expert may in any event be required to disclose the underlying facts or
data on cross-examination. Questions calling for the opinion of an expert witness need
not be hypothetical in form unless [the judge in his discretion so requires] in the judge’s
discretion it is so required.
8
Rule 801. Definitions
For purposes of this article, the following definitions apply:
(a) Statement. A “statement" is (1) an oral or written assertion or (2) nonverbal
conduct of a person if [it is intended by him] the person intends it as an assertion.
(b) Declarant. A “declarant" is a person who makes a statement.
(c) Hearsay. “Hearsay" is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.
(d) Business. A “business" includes every kind of business, institution,
association, profession, occupation and calling, whether or not conducted for
profit, and also includes activities of governmental agencies.
(e) Writing. A “writing" consists of letters, words, numbers, data compilations,
pictures, drawings, photographs, symbols, sounds, or combinations thereof or
their equivalent, set down or recorded by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or electronic
recording, or by any other means, and preserved in a perceptible form, and their
duplicates as defined by Rule 1001(d).
(f) Public Official. A “public official" includes an official of the United States,
its territories, the District of Columbia and states, as well as political subdivisions,
regional and other governmental agencies thereof.
9
Rule 803. Hearsay exceptions not dependent on declarant's unavailability
The following statements are not excluded by the hearsay rule:
(a) Prior statements of witnesses. A statement previously made by a person who is a witness
at a trial or hearing, provided it would have been admissible if made by the declarant while
testifying and the statement:
(1) is inconsistent with the witness' testimony at the trial or hearing and is offered
in compliance with Rule 613. However, when the statement is offered by the
party calling the witness, it is admissible only if, in addition to the foregoing
requirements, it (A) is contained in a sound recording or in a writing made or
signed by the witness in circumstances establishing its reliability or (B) was given
under oath subject to the penalty of perjury at a trial or other judicial,
quasi-judicial, legislative, administrative or grand jury proceeding, or in a
deposition; or
(2) is consistent with the witness' testimony and is offered to rebut an express or
implied charge against the witness of recent fabrication or improper influence or
motive; or
(3) is a prior identification of a person made after perceiving that person if made
in circumstances precluding unfairness or unreliability.
(b) Statement by party-opponent. A statement offered against a party which is:
(1) the party's own statement, made either in an individual or in a representative
capacity, or
(2) a statement whose content the party has adopted by word or conduct or in
whose truth the party has manifested belief, or
(3) a statement by a person authorized by the party to make a statement
concerning the subject, or
(4) a statement by the party's agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of the relationship,
or
(5) a statement made at the time the party and the declarant were participating in
a plan to commit a crime or civil wrong and the statement was made in
furtherance of that plan.
In a criminal proceeding, the admissibility of a defendant's statement which is offered against
the defendant is subject to Rule 104(c).
(c) Statements not dependent on declarant's availability. Whether or not the declarant is
available as a witness:
10
(1) Present sense impression. A statement of observation, description or
explanation of an event or condition made while or immediately after the
declarant was perceiving the event or condition and without opportunity to
deliberate or fabricate.
(2) Excited utterance. A statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition and without opportunity to deliberate or fabricate.
(3) Then existing mental, emotional, or physical condition. A statement made in
good faith of the declarant's then existing state of mind, emotion, sensation or
physical condition (such as intent, plan, motive, design, mental feeling, pain, or
bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment. Statements made
in good faith for purposes of medical diagnosis or treatment which describe
medical history, or past or present symptoms, pain, or sensations, or the inception
or general character of the cause or external source thereof to the extent that the
statements are reasonably pertinent to diagnosis or treatment.
(5) Recorded recollection. A statement concerning a matter about which the
witness is unable to testify fully and accurately because of insufficient present
recollection if the statement is contained in a writing or other record which (A)
was made at a time when the fact recorded actually occurred or was fresh in the
memory of the witness, and (B) was made by the witness [himself] or under the
witness' direction or by some other person for the purpose of recording the
statement at the time it was made, and (C) the statement concerns a matter of
which the witness had knowledge when it was made, unless the circumstances
indicate that the statement is not trustworthy; provided that when the witness does
not remember part or all of the contents of a writing, the portion the witness does
not remember may be read into evidence but shall not be introduced as an exhibit
over objection.
(6) Records of regularly conducted activity. A statement contained in a writing
or other record of acts, events, conditions, and, subject to Rule 808, opinions or
diagnoses, made at or near the time of observation by a person with actual
knowledge or from information supplied by such a person, if the writing or other
record was made in the regular course of business and it was the regular practice
of that business to make it, unless the sources of information or the method,
purpose or circumstances of preparation indicate that it is not trustworthy.
(7) Absence of an entry in records of regularly conducted activity. Evidence that
a matter is not included in a writing or other record kept in accordance with the
provisions of Rule 803(c)(6), when offered to prove the nonoccurrence or
11
nonexistence of the matter, if the matter was of a kind of which a writing or other
record was regularly made and preserved, unless the sources of information or
other circumstances indicate that the inference of nonoccurrence or nonexistence
is not trustworthy.
(8) Public records, reports, and findings. Subject to Rule 807, (A) a statement
contained in a writing made by a public official of an act done by the official or an
act, condition, or event observed by the official if it was within the scope of the
official's duty either to perform the act reported or to observe the act, condition, or
event reported and to make the written statement, or (B) statistical findings of a
public official based upon a report of or an investigation of acts, conditions, or
events, if it was within the scope of the official's duty to make such statistical
findings, unless the sources of information or other circumstances indicate that
such statistical findings are not trustworthy.
(9) Records of vital statistics. Subject to Rule 807, a statement contained in any
form such as records of births, fetal deaths, deaths, or marriages, if the report
thereof was made to a public office pursuant to requirements of law.
(10) Absence of public record or entry. Subject to Rule 807, a certification in
accordance with Rule 902 stating that diligent search failed to disclose a public
record, report, writing, or entry when offered to prove (A) the absence of a public
record, report, writing, or entry, or (B) the nonoccurrence or nonexistence of a
matter of which a record, report, writing, or entry is regularly made and preserved
by a public office or agency, unless the sources of information or other
circumstances indicate that the inference of nonoccurrence or nonexistence is not
trustworthy.
(11) Records of religious organizations. Subject to Rule 807, statements of
births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or
marriage, or other similar facts of personal or family history, contained in a
regularly kept record of a religious organization.
(12) Marriage, baptismal, and similar certificates. Subject to Rule 807,
statements of fact contained in a certificate that the maker performed a marriage or
other ceremony or administered a sacrament, made by a clergyman, public
official, or other person authorized by the rules or practices of a religious
organization or by law to perform the act certified, and purporting to have been
issued at the time of the act or within a reasonable time thereafter.
12
(13) Family records. Subject to Rule 807, statements of fact concerning a
personal or family history contained in family Bibles, genealogies, charts,
engravings on rings, inscriptions on family portraits, engravings on urns, crypts,
or tombstones, or the like.
(14) Records of documents affecting an interest in property. Subject to Rule 807,
the record of a document purporting to establish or affect an interest in property,
as proof of the content of the original recorded document and its execution and
delivery by each person by whom it purports to have been executed, if the record
is a record of a public office and an applicable statute authorized the recording of
documents of that kind in that office.
(15) Statements in documents affecting an interest in property. Subject to Rule
807, a statement contained in a document purporting to establish or affect an
interest in property if the matter stated was relevant to the purpose of the
document, unless dealings with the property since the document was made have
been inconsistent with the truth of the statement or the purport of the document.
(16) Statements in ancient documents. Statements in a document in existence 30
years or more whose authenticity is established.
(17) Market reports, commercial publications. Market quotations, tabulations,
lists, directories, or other published compilations, generally used and relied upon
by the public or by persons in particular occupations.
(18) Learned treatises. To the extent called to the attention of an expert witness
upon cross-examination or relied upon by the expert in direct examination,
statements contained in published treatises, periodicals, or pamphlets on a subject
of history, medicine, or other science or art, established as a reliable authority by
testimony or by judicial notice. If admitted, the statements may not be received as
exhibits but may be read into evidence or, if graphics, shown to the jury.
(19) Reputation concerning personal or family history. Evidence of a person's
reputation, among members of the person's family by blood, adoption, or
marriage, or among that person's associates, or in the community, concerning a
person's birth, adoption, marriage, divorce, death, legitimacy, ancestry,
relationship by blood, adoption, or marriage, or other similar fact of the person's
personal or family history.
(20) Reputation concerning boundaries or general history. Evidence of reputation
in a community, arising before the controversy, as to boundaries of or customs
affecting lands in the community, and as to events of general history important to
the community or state or nation in which the community is located.
(21) Reputation as to character. Evidence of reputation of a person's character at
a relevant time among the person's associates or in the community.
13
(22) Judgments of previous conviction of crime. In a civil proceeding, except as
otherwise provided by court order on acceptance of a plea, evidence of a final
judgment against a party adjudging [him] the party guilty of an indictable offense
in New Jersey or of an offense which would constitute an indictable offense if
committed in this state, as against that party, to prove any fact essential to sustain
the judgment.
(23) Judgment as to personal, family, or general history, or boundaries.
Judgments as proof of matters of personal, family or general history, or
boundaries, essential to the judgment, if those matters would be provable by
evidence of reputation.
(24) Other exceptions. [Not Adopted]
(25) Statement against interest. A statement which was, at the time of its making,
so far contrary to the declarant's pecuniary, proprietary or social interest, or so far
tended to subject declarant to civil or criminal liability, or to render invalid
declarant's claim against another, that a reasonable person in declarant's position
would not have made the statement unless the person believed it to be true. Such a
statement is admissible against an accused in a criminal action only if the accused
was the declarant.
(26) Judgments against persons entitled to indemnity. Subject to Rule 807 and
except in a proceeding brought under the Joint Tortfeasors Contribution Law,
N.J.S.A. 2A:53A-1 et seq., the record of a final judgment is admissible if offered
by the judgment debtor in an action in which [he] the debtor seeks to recover
partial or total indemnity or exoneration for money paid or a liability incurred
because of the judgment, as evidence of the liability of the judgment debtor, of the
facts on which the judgment is based, and of the reasonableness of the damages
recovered. If the defendant in the second action had notice of and opportunity to
defend the first action, the judgment is conclusive evidence.
(27) Statements by a child relating to a sexual offense. A statement by a child
under the age of 12 relating to sexual misconduct committed with or against that
child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent
of the statement makes known to the adverse party [his] an intention to offer the
statement and the particulars of the statement at such time as to provide [him] the
adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a
hearing conducted pursuant to Rule 104(a), that on the basis of the time, content
and circumstances of the statement there is a probability that the statement is
trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child
is unavailable as a witness and there is offered admissible evidence corroborating
the act of sexual abuse; provided that no child whose statement is to be offered in
evidence pursuant to this rule shall be disqualified to be a witness in such
proceeding by virtue of the requirements of Rule 601.
14
Rule 804. Hearsay exceptions: declarant unavailable
(a) Definition of unavailable. Except when the declarant's unavailability has been procured or
wrongfully caused by the proponent of [his] declarant’s statement for the purpose of
preventing [him] declarant from attending or testifying, a declarant is "unavailable" as a
witness if [he] declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the statement; or
(2) persists in refusing to testify concerning the subject matter of [his] the
statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of [his] the statement; or
(4) is absent from the hearing because of death, physical or mental illness or
infirmity, or other cause, and the proponent of the statement is unable by process
or other reasonable means to procure the declarant's attendance at trial, and, with
respect to statements proffered under Rules 804(b)(4) and (7), the proponent is
unable, without undue hardship or expense, to obtain [his]declarant’s deposition
for use in lieu of testimony at trial.
(b) Hearsay exceptions. Subject to Rule 807, the following are not excluded by the hearsay
rule if the declarant is unavailable as a witness.
(1) Testimony in prior proceedings.
(A) Testimony given by a witness at a prior trial of the same or a different matter,
or in a hearing or deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the testimony is now
offered had an opportunity and similar motive in the prior trial, hearing or
proceeding to develop the testimony by examination or cross-examination.
(B) In a civil action or proceeding, and only when offered by the defendant in a
criminal action or proceeding, testimony given in a prior trial, hearing or
deposition taken pursuant to law to which the party against whom the testimony is
now offered was not a party, if the party who offered the prior testimony or
against whom it was offered had an opportunity to develop the testimony on
examination or cross-examination and had an interest and motive to do so which
is the same or similar to that of the party against whom it is now offered. Expert
opinion testimony given in a prior trial, hearing, or deposition may be excluded,
however, if the judge finds that there are experts of a like kind generally available
within a reasonable distance from the place in which the action is pending and the
interests of justice so require.
(2) Statement under belief of imminent death. In a criminal proceeding, a
statement made by a victim unavailable as a witness is admissible if it was made
15
voluntarily and in good faith and while the declarant believed in the imminence of
declarant's impending death.
(3) [Statement against interest -- adopted as Rule 803(c)(25) ]
(4) Statement of personal or family history. A statement: (A) concerning the
declarant's own birth, adoption, marriage, divorce, legitimacy, ancestry,
relationship by blood, adoption, or marriage, or other similar fact of personal or
family history, even though declarant had no means of acquiring personal
knowledge of the matter stated or (B) concerning the foregoing matters, and the
death also, of another person, if the declarant was related to the other by blood,
adoption, or marriage or was so intimately associated with the other's family as to
be likely to have accurate information concerning the matters declared.
(5) [Other exceptions--not adopted]
(6) Trustworthy statements by deceased declarants. In a civil proceeding, a
statement made by a person unavailable as a witness because of [his] death if the
statement was made in good faith upon [his] declarant’s personal knowledge in
circumstances indicating that it is trustworthy.
(7) Voters' statements. A statement by a voter concerning his or her
qualifications to vote or the fact or content of [his] the vote.
16
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Proposed Amendment to N.J.R.E. 604 and Creation of a New Rule Governing Use
of Approved Interpreters for Certain Depositions
The Committee considered a request from the AOC to amend N.J.R.E. 604,
“Interpreters,” and to create a new rule requiring the use of approved interpreters for certain
depositions.
The AOC requested that N.J.R.E. 604 be amended to eliminate the requirement that
interpreters take an oath before each proceeding. The primary purpose of the proposed change
was to increase efficiency in the courtroom by saving time. The AOC proposed the following
language: [additions to the current rule are underscored and deletions are placed in [brackets]]:
The judge shall determine the qualifications of a person [testifying as
an interpreter] interpreting on the record. A[n] person interpreting the
testimony of a witness [interpreter] shall be subject to all provisions of
these rules relating to witnesses [and shall take an oath or make an
affirmation or declaration to interpret accurately] except that an
interpreter employed by the Administrative Office of the Courts, listed
in the Judiciary’s Registry of Free-lance Interpreters and
Interpretation/ translation Agencies, or contracted through an approved
interpreting agency need not take an oath or make an affirmation or
declaration at the beginning of a proceeding.
The Committee decided to reject the proposed change. It noted that the interpreter’s
oath takes up little courtroom time and that the oath emphasizes to all participants the
seriousness and importance of the interpreter’s role in the proceeding.
17
The AOC also proposed the following text for a new evidence rule mandating that
approved interpreters be used, whenever reasonably possible, for de bene esse depositions:
Use of Interpreters at Deposition:
A party taking a deposition that is intended to be used as substantive
evidence at trial shall, whenever reasonably possible, use only
interpreters or agencies included in the Judiciary’s Registry of Freelance
Interpreters and Interpretation/translation Agencies. When such
a deposition is offered into evidence its proponent should place on the
record (1) that the interpreter or agency was included in the registry at
the time of the deposition, or (2) that despite reasonable efforts to
obtain one, no interpreter from the registry or an approved agency was
available, or (3) that the circumstances of the deposition made it
infeasible to use an interpreter from the registry or an approved
agency. This rule should not be read to interfere with the requirement
that a judge shall determine the qualifications of an interpreter set forth
in Rule 604.
The Committee rejected this proposal. After discussion, it decided that the AOC’s goals
could more appropriately be accomplished through amending the court rules on depositions or
through a directive from the Director of the AOC.
B. Proposed Amendment to N.J.R.E. 803(c)(6) – Business Records Exception to the
Hearsay Rule
The Committee considered whether it should amend N.J.R.E. 803(c)(6) to explicitly
allow the admission of business records by certification. The Committee decided such an
amendment was unnecessary, because the current rule allows for such admission. The 1991
comments of the Committee on the business exception rule make clear that live testimony is
not always necessary:
In contrast to its federal counterpart, Rule 803(c)(6) follows the 1967 New
Jersey rule in not requiring testimony of the custodian or other qualified
witness as a condition for admission of business records. The requirement
that a foundation be laid establishing the criteria for admissibility may be met
by the kind of proof that would satisfy a trial judge in a hearing under Rule
104(a), including proof presented in affidavit form, such as in the case of
hospital records. Gunter v. Fischer Scientific American, 193 N.J. Super. 688,
691-692 (App. Div. 1984).
[Biunno, Current N.J. Rules of Evidence, 1991 Supreme Court Committee
Comment on N.J.R.E. 803(c)(6).]
18
C. Proposed Hearsay Exception for Domestic Violence Cases
At the request of a citizen, the Committee considered whether it should recommend the
creation of an exception to the hearsay rule for use solely in domestic violence cases. Many
cases of domestic violence are never prosecuted because the victim refuses to testify against the
batterer in court. Proponents of such an exception argue that if a victim’s out-of-court
statements could be introduced as evidence, more domestic violence cases could be successfully
prosecuted. On the other hand, opponents of the exception fear that it would dangerously
impinge on the rights of defendants. In order to address this complex issue, a subcommittee
was formed, chaired by Committee member, Professor Sherry Colb.
The consensus of the subcommittee was that the current evidence rules, if properly
applied, are adequate to permit the successful prosecution of domestic violence cases, even in
the absence of the victim’s testimony. The Committee agrees with its subcommittee and
recommends against the adoption of such an exception.
19
III. MATTERS HELD FOR CONSIDERATION
A. Uniform Mediation Act
The New Jersey Law Revision Commission (“Commission”) asked the Committee for
comment on the Uniform Mediation Act (“the Act”), which creates a mediation
communication privilege. The Committee, though it generally favored the privilege, asked that
it be modified slightly so that mediators will be required to testify if all parties to an agreement
waive the privilege. John Cannel, Executive Director of the Commission and member of the
Committee, agreed to draft an appropriate modification to the Act. The Committee recently
received the proposed modification and will consider it in the next term.
20
IV. CONCLUSION
The members of the Supreme Court Committee on the Rules of Evidence appreciate
the opportunity to serve the Supreme Court in this capacity.
Respectfully submitted,
Hon. Philip S. Carchman, J.A.D., Chair
Hon. Sylvia B. Pressler, P.J.A.D., Vice-Chair
Wanda M. Akin, Esq.
Robert E. Bonpietro, Esq.
Hon. Theodore I. Botter, P.J.A.D. (ret.)
Hon. Warren Brody, J.A.D. (ret.)
Edward M. Callahan, Jr., Esq.
John M. Cannel, Esq.
Professor Sherry F. Colb
Hon. Marina Corodemus, J.S.C.
Hon. William M. D’Annunzio, P.J.A.D. (ret.)
Hon. William A. Dreier, P.J.A.D. (ret.)
Hugh P. Francis, Esq.
Joel M. Harris, Esq.
Sherry Hutchins Henderson, Esq.
Hon. Paul Innes, J.S.C.
Cynthia M. Jacob, Esq.
Hon. Michael Patrick King, P.J.A.D.
Joseph Krakora, Esq.
Hon. Laura M. LeWinn, J.S.C.
Brian J. Litten, Esq.
Hon. Thomas M. McCormack, J.S.C.
James H. Martin, Esq.
Antonio Martinez, Esq.
John L. Molinelli, Prosecutor
Hon. Amy O’Connor, J.S.C.
Jacqueline M. Printz, Esq.
Professor D. Michael Risinger
Aletha R. Sheppard, Esq.
Jose P. Sierra, Esq.
William B. Smith, Esq.
Hon. Edwin H. Stern, P.J.A.D.
Hon. Mark A. Sullivan, Jr., J.S.C.
Carol Ann Welsch, Esq., AOC Staff
SUPREME COURT COMMITTEE ON
THE RULES OF EVIDENCE
January 30, 2004
i
TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION...............................1
A. Proposed Amendments to Eliminate Gender-Biased
Language..................................................................................................................1
II. RULE AMENDMENTS CONSIDERED AND REJECTED ...................................19
A. Proposed Amendment to N.J.R.E. 604 and Creation
Of a New Rule Governing Use of Approved
Interpreters for Certain Depositions.......................................................................19
B. Proposed Amendment to N.J.R.E. 803(c)(6) –
Business Records Exception to the Hearsay Rule .................................................20
C. Proposed Hearsay Exception for Domestic
Violence Cases.......................................................................................................21
III. MATTERS HELD FOR CONSIDERATION............................................................22
A. Uniform Mediation Act..........................................................................................22
IV. CONCLUSION .............................................................................................................23
1
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendments to Eliminate Gender-Biased Language
In 1984, the New Jersey Supreme Court Task Force on Women recommended that all
court rules be revised to use gender-neutral language. A similar recommendation was made by
the Supreme Court Committee on Women in the Courts in its 1990-92 rules report. In a letter
dated October 17, 1994, Chief Justice Robert Wilentz reported to the Committee on Women in
the Courts that many rules committees had proposed rule changes to eliminate gender-biased
language. He asked that if committee members came across any remaining problems, Marilyn
Slivka, Court Executive, Administrative Office of the Courts (“AOC”), call them to the
attention of staff of the appropriate rules committees.
In 2002, Ms. Slivka brought to the attention of the Supreme Court Committee on the
Rules of Evidence (“the Committee”) that many evidence rules still contain gender-biased
language. At the request of the Committee, Ms. Slivka proposed changes to the evidence rules
that substituted gender-neutral language for the biased language. The Committee recommends
that the Court adopt these proposed changes to the evidence rules, which eliminate genderbiased
language, without changing the substantive meaning of the rules. Changes are proposed
to the following rules: N.J.R.E. 101(b)(2); N.J.R.E. 303(c); N.J.R.E. 404(a) and (b); N.J.R.E.
602; N.J.R.E. 705; N.J.R.E. 801(a)(2); N.J.R.E. 803(c)(5)(B), (22), (26), (27)(a); 804(a),
(a)(2), (a)(3), (a)(4), (b)(6), and (b)(7).
The Committee is not recommending any revisions to the evidence rules found in
Article V, Privileges, because these rules merely restate New Jersey statutes that create
privileges.
2
Rule 101. Scope; definitions
(a) Applicability; exceptions.
(1) Privileges. The provisions of Rule 500 (privileges) shall apply, without relaxation,
to all proceedings and inquiries, whether formal, informal, public or private, and to all
branches and agencies of government.
(2) Court proceedings; relaxation. These rules of evidence shall apply in all
proceedings, civil or criminal, conducted by or under the supervision of a court. Except
as provided by Paragraph (a)(1) of this rule, these rules may be relaxed in the following
instances to admit relevant and trustworthy evidence in the interest of justice:
(A) actions within the cognizance of the Small Claims Section of the Special
Civil Part of the Superior Court, Law Division, and the Small Claims Division of
the Tax Court whether or not the action was instituted in a Small Claims Section
or Division;
(B) in accordance with a statutory provision;
(C) proceedings in a criminal or juvenile delinquency action in which
information is presented for the court's use in exercising a sentencing or other
dispositional discretion, including bail and pretrial intervention and other
diversionary proceedings;
(D) to the extent permitted by law, proceedings to establish probable cause,
including grand jury proceedings, probable cause hearings, and ex parte
applications;
(E) proceedings to determine the admissibility of evidence under these rules or
other law.
(3) Administrative proceedings. Except as otherwise provided by Paragraph (a)(1) of
this rule, proceedings before administrative agencies shall not be governed by these rules.
(4) Undisputed facts. If there is no bona fide dispute between the parties as to a
relevant fact, the judge may permit that fact to be established by stipulation or binding
admission. In civil proceedings the judge may also permit that fact to be proved by any
relevant evidence, and exclusionary rules shall not apply, except Rule 403 or a valid
claim of privilege.
(5) Affidavit in lieu of testimony. These rules shall not be construed to prohibit the use
of an affidavit in lieu of oral testimony to the extent permitted by law.
(b) Definitions. As used in these rules, the following terms shall have the meaning hereafter
set forth unless the context otherwise indicates:
(1) "Burden of persuasion" means the obligation of a party to meet the
requirements of a rule of law that the fact be proved either by a preponderance of
3
the evidence or by clear and convincing evidence or beyond a reasonable doubt,
as the case may be.
(2) "Burden of producing evidence" means the obligation of a party to introduce
evidence when necessary to avoid the risk of a judgment or peremptory finding
against [him] that party on an issue of fact.
(3) "Writing" has the meaning given in the definition contained in Rule 801(e).
(c) Repeal. The adoption of these rules of evidence shall not operate to repeal any
existing statute by implication. However, where an existing statute has been expressly
superseded pursuant to N.J.S.A. 2A:84A-40 by an official note heretofore or hereafter
appended to a rule of evidence, such statute shall have no further force or effect.
4
Rule 303. Presumptions against the accused in criminal cases
(a) Scope. Except as otherwise provided by law, in criminal cases presumptions against an
accused, recognized at common law or created by statute, including statutory provisions that
certain facts are prima facie evidence of other facts or of guilt, are governed by this rule. As used
in this rule, the term "element of the offense" shall include any issue on which the prosecution
bears the burden of persuasion beyond a reasonable doubt.
(b) Submission to jury. The judge may not direct the jury to find a presumed fact against the
accused. If a presumed fact establishes an element of the offense, the judge may submit the
question of the existence of the presumed fact to the jury upon proof of the basic fact but only if
a reasonable juror on the evidence as a whole, including the evidence of the basic fact, could find
the presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the
question of its existence may be submitted to the jury provided the basic facts are supported by
sufficient evidence or are otherwise established, unless the judge determines that reasonable
jurors on the evidence as a whole could not find the existence of the presumed fact.
(c) Instructing the jury. Whenever the existence of a presumed fact against the accused is
submitted to the jury, the judge may instruct the jury that it may regard the basic fact as
sufficient evidence of the presumed fact but that it is not required to do so. In addition, if
the presumed fact establishes guilt or is an element of the offense, the judge shall instruct
the jury that its existence, on all of the evidence, must be proved beyond a reasonable
doubt. The judge shall not use the word “presumed" or “presumption" in [his] instructions
to the jury.
5
Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes;
evidence
(a) Character evidence generally. Evidence of a person's character or [a trait of his] character
trait, including a trait of care or skill or lack thereof, is not admissible for the purpose of
proving that the person acted in conformity therewith on a particular occasion except:
(1) Character of accused. Evidence of a pertinent trait of the accused's character
offered by the accused, which shall not be excluded under Rule 403, or by the
prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of
the crime offered by an accused or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the victim offered by the
prosecution in a homicide case to rebut evidence that the victim was the first
aggressor;
(3) Character of witness. Evidence of the character of a witness as provided in
Rule 608.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to
prove the disposition of a person in order to show that [he] such person acted in conformity
therewith. Such evidence may be admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident
when such matters are relevant to a material issue in dispute.
(c) Character and character trait in issue. Evidence of a person's character or trait of character is
admissible when that character or trait is an element of a claim or defense.
6
Rule 602. Lack of personal knowledge
Except as otherwise provided by Rule 703 (bases of opinion testimony by experts), a
witness may not testify to a matter unless evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the testimony of [the] that witness [himself].
7
Rule 705. Disclosure of facts or data underlying expert opinion; hypotheses not
necessary
The expert may testify in terms of opinion or inference and give reasons therefore
without prior disclosure of the underlying facts or data, unless the court requires
otherwise. The expert may in any event be required to disclose the underlying facts or
data on cross-examination. Questions calling for the opinion of an expert witness need
not be hypothetical in form unless [the judge in his discretion so requires] in the judge’s
discretion it is so required.
8
Rule 801. Definitions
For purposes of this article, the following definitions apply:
(a) Statement. A “statement" is (1) an oral or written assertion or (2) nonverbal
conduct of a person if [it is intended by him] the person intends it as an assertion.
(b) Declarant. A “declarant" is a person who makes a statement.
(c) Hearsay. “Hearsay" is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.
(d) Business. A “business" includes every kind of business, institution,
association, profession, occupation and calling, whether or not conducted for
profit, and also includes activities of governmental agencies.
(e) Writing. A “writing" consists of letters, words, numbers, data compilations,
pictures, drawings, photographs, symbols, sounds, or combinations thereof or
their equivalent, set down or recorded by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or electronic
recording, or by any other means, and preserved in a perceptible form, and their
duplicates as defined by Rule 1001(d).
(f) Public Official. A “public official" includes an official of the United States,
its territories, the District of Columbia and states, as well as political subdivisions,
regional and other governmental agencies thereof.
9
Rule 803. Hearsay exceptions not dependent on declarant's unavailability
The following statements are not excluded by the hearsay rule:
(a) Prior statements of witnesses. A statement previously made by a person who is a witness
at a trial or hearing, provided it would have been admissible if made by the declarant while
testifying and the statement:
(1) is inconsistent with the witness' testimony at the trial or hearing and is offered
in compliance with Rule 613. However, when the statement is offered by the
party calling the witness, it is admissible only if, in addition to the foregoing
requirements, it (A) is contained in a sound recording or in a writing made or
signed by the witness in circumstances establishing its reliability or (B) was given
under oath subject to the penalty of perjury at a trial or other judicial,
quasi-judicial, legislative, administrative or grand jury proceeding, or in a
deposition; or
(2) is consistent with the witness' testimony and is offered to rebut an express or
implied charge against the witness of recent fabrication or improper influence or
motive; or
(3) is a prior identification of a person made after perceiving that person if made
in circumstances precluding unfairness or unreliability.
(b) Statement by party-opponent. A statement offered against a party which is:
(1) the party's own statement, made either in an individual or in a representative
capacity, or
(2) a statement whose content the party has adopted by word or conduct or in
whose truth the party has manifested belief, or
(3) a statement by a person authorized by the party to make a statement
concerning the subject, or
(4) a statement by the party's agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of the relationship,
or
(5) a statement made at the time the party and the declarant were participating in
a plan to commit a crime or civil wrong and the statement was made in
furtherance of that plan.
In a criminal proceeding, the admissibility of a defendant's statement which is offered against
the defendant is subject to Rule 104(c).
(c) Statements not dependent on declarant's availability. Whether or not the declarant is
available as a witness:
10
(1) Present sense impression. A statement of observation, description or
explanation of an event or condition made while or immediately after the
declarant was perceiving the event or condition and without opportunity to
deliberate or fabricate.
(2) Excited utterance. A statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition and without opportunity to deliberate or fabricate.
(3) Then existing mental, emotional, or physical condition. A statement made in
good faith of the declarant's then existing state of mind, emotion, sensation or
physical condition (such as intent, plan, motive, design, mental feeling, pain, or
bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment. Statements made
in good faith for purposes of medical diagnosis or treatment which describe
medical history, or past or present symptoms, pain, or sensations, or the inception
or general character of the cause or external source thereof to the extent that the
statements are reasonably pertinent to diagnosis or treatment.
(5) Recorded recollection. A statement concerning a matter about which the
witness is unable to testify fully and accurately because of insufficient present
recollection if the statement is contained in a writing or other record which (A)
was made at a time when the fact recorded actually occurred or was fresh in the
memory of the witness, and (B) was made by the witness [himself] or under the
witness' direction or by some other person for the purpose of recording the
statement at the time it was made, and (C) the statement concerns a matter of
which the witness had knowledge when it was made, unless the circumstances
indicate that the statement is not trustworthy; provided that when the witness does
not remember part or all of the contents of a writing, the portion the witness does
not remember may be read into evidence but shall not be introduced as an exhibit
over objection.
(6) Records of regularly conducted activity. A statement contained in a writing
or other record of acts, events, conditions, and, subject to Rule 808, opinions or
diagnoses, made at or near the time of observation by a person with actual
knowledge or from information supplied by such a person, if the writing or other
record was made in the regular course of business and it was the regular practice
of that business to make it, unless the sources of information or the method,
purpose or circumstances of preparation indicate that it is not trustworthy.
(7) Absence of an entry in records of regularly conducted activity. Evidence that
a matter is not included in a writing or other record kept in accordance with the
provisions of Rule 803(c)(6), when offered to prove the nonoccurrence or
11
nonexistence of the matter, if the matter was of a kind of which a writing or other
record was regularly made and preserved, unless the sources of information or
other circumstances indicate that the inference of nonoccurrence or nonexistence
is not trustworthy.
(8) Public records, reports, and findings. Subject to Rule 807, (A) a statement
contained in a writing made by a public official of an act done by the official or an
act, condition, or event observed by the official if it was within the scope of the
official's duty either to perform the act reported or to observe the act, condition, or
event reported and to make the written statement, or (B) statistical findings of a
public official based upon a report of or an investigation of acts, conditions, or
events, if it was within the scope of the official's duty to make such statistical
findings, unless the sources of information or other circumstances indicate that
such statistical findings are not trustworthy.
(9) Records of vital statistics. Subject to Rule 807, a statement contained in any
form such as records of births, fetal deaths, deaths, or marriages, if the report
thereof was made to a public office pursuant to requirements of law.
(10) Absence of public record or entry. Subject to Rule 807, a certification in
accordance with Rule 902 stating that diligent search failed to disclose a public
record, report, writing, or entry when offered to prove (A) the absence of a public
record, report, writing, or entry, or (B) the nonoccurrence or nonexistence of a
matter of which a record, report, writing, or entry is regularly made and preserved
by a public office or agency, unless the sources of information or other
circumstances indicate that the inference of nonoccurrence or nonexistence is not
trustworthy.
(11) Records of religious organizations. Subject to Rule 807, statements of
births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or
marriage, or other similar facts of personal or family history, contained in a
regularly kept record of a religious organization.
(12) Marriage, baptismal, and similar certificates. Subject to Rule 807,
statements of fact contained in a certificate that the maker performed a marriage or
other ceremony or administered a sacrament, made by a clergyman, public
official, or other person authorized by the rules or practices of a religious
organization or by law to perform the act certified, and purporting to have been
issued at the time of the act or within a reasonable time thereafter.
12
(13) Family records. Subject to Rule 807, statements of fact concerning a
personal or family history contained in family Bibles, genealogies, charts,
engravings on rings, inscriptions on family portraits, engravings on urns, crypts,
or tombstones, or the like.
(14) Records of documents affecting an interest in property. Subject to Rule 807,
the record of a document purporting to establish or affect an interest in property,
as proof of the content of the original recorded document and its execution and
delivery by each person by whom it purports to have been executed, if the record
is a record of a public office and an applicable statute authorized the recording of
documents of that kind in that office.
(15) Statements in documents affecting an interest in property. Subject to Rule
807, a statement contained in a document purporting to establish or affect an
interest in property if the matter stated was relevant to the purpose of the
document, unless dealings with the property since the document was made have
been inconsistent with the truth of the statement or the purport of the document.
(16) Statements in ancient documents. Statements in a document in existence 30
years or more whose authenticity is established.
(17) Market reports, commercial publications. Market quotations, tabulations,
lists, directories, or other published compilations, generally used and relied upon
by the public or by persons in particular occupations.
(18) Learned treatises. To the extent called to the attention of an expert witness
upon cross-examination or relied upon by the expert in direct examination,
statements contained in published treatises, periodicals, or pamphlets on a subject
of history, medicine, or other science or art, established as a reliable authority by
testimony or by judicial notice. If admitted, the statements may not be received as
exhibits but may be read into evidence or, if graphics, shown to the jury.
(19) Reputation concerning personal or family history. Evidence of a person's
reputation, among members of the person's family by blood, adoption, or
marriage, or among that person's associates, or in the community, concerning a
person's birth, adoption, marriage, divorce, death, legitimacy, ancestry,
relationship by blood, adoption, or marriage, or other similar fact of the person's
personal or family history.
(20) Reputation concerning boundaries or general history. Evidence of reputation
in a community, arising before the controversy, as to boundaries of or customs
affecting lands in the community, and as to events of general history important to
the community or state or nation in which the community is located.
(21) Reputation as to character. Evidence of reputation of a person's character at
a relevant time among the person's associates or in the community.
13
(22) Judgments of previous conviction of crime. In a civil proceeding, except as
otherwise provided by court order on acceptance of a plea, evidence of a final
judgment against a party adjudging [him] the party guilty of an indictable offense
in New Jersey or of an offense which would constitute an indictable offense if
committed in this state, as against that party, to prove any fact essential to sustain
the judgment.
(23) Judgment as to personal, family, or general history, or boundaries.
Judgments as proof of matters of personal, family or general history, or
boundaries, essential to the judgment, if those matters would be provable by
evidence of reputation.
(24) Other exceptions. [Not Adopted]
(25) Statement against interest. A statement which was, at the time of its making,
so far contrary to the declarant's pecuniary, proprietary or social interest, or so far
tended to subject declarant to civil or criminal liability, or to render invalid
declarant's claim against another, that a reasonable person in declarant's position
would not have made the statement unless the person believed it to be true. Such a
statement is admissible against an accused in a criminal action only if the accused
was the declarant.
(26) Judgments against persons entitled to indemnity. Subject to Rule 807 and
except in a proceeding brought under the Joint Tortfeasors Contribution Law,
N.J.S.A. 2A:53A-1 et seq., the record of a final judgment is admissible if offered
by the judgment debtor in an action in which [he] the debtor seeks to recover
partial or total indemnity or exoneration for money paid or a liability incurred
because of the judgment, as evidence of the liability of the judgment debtor, of the
facts on which the judgment is based, and of the reasonableness of the damages
recovered. If the defendant in the second action had notice of and opportunity to
defend the first action, the judgment is conclusive evidence.
(27) Statements by a child relating to a sexual offense. A statement by a child
under the age of 12 relating to sexual misconduct committed with or against that
child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent
of the statement makes known to the adverse party [his] an intention to offer the
statement and the particulars of the statement at such time as to provide [him] the
adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a
hearing conducted pursuant to Rule 104(a), that on the basis of the time, content
and circumstances of the statement there is a probability that the statement is
trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child
is unavailable as a witness and there is offered admissible evidence corroborating
the act of sexual abuse; provided that no child whose statement is to be offered in
evidence pursuant to this rule shall be disqualified to be a witness in such
proceeding by virtue of the requirements of Rule 601.
14
Rule 804. Hearsay exceptions: declarant unavailable
(a) Definition of unavailable. Except when the declarant's unavailability has been procured or
wrongfully caused by the proponent of [his] declarant’s statement for the purpose of
preventing [him] declarant from attending or testifying, a declarant is "unavailable" as a
witness if [he] declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the statement; or
(2) persists in refusing to testify concerning the subject matter of [his] the
statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of [his] the statement; or
(4) is absent from the hearing because of death, physical or mental illness or
infirmity, or other cause, and the proponent of the statement is unable by process
or other reasonable means to procure the declarant's attendance at trial, and, with
respect to statements proffered under Rules 804(b)(4) and (7), the proponent is
unable, without undue hardship or expense, to obtain [his]declarant’s deposition
for use in lieu of testimony at trial.
(b) Hearsay exceptions. Subject to Rule 807, the following are not excluded by the hearsay
rule if the declarant is unavailable as a witness.
(1) Testimony in prior proceedings.
(A) Testimony given by a witness at a prior trial of the same or a different matter,
or in a hearing or deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the testimony is now
offered had an opportunity and similar motive in the prior trial, hearing or
proceeding to develop the testimony by examination or cross-examination.
(B) In a civil action or proceeding, and only when offered by the defendant in a
criminal action or proceeding, testimony given in a prior trial, hearing or
deposition taken pursuant to law to which the party against whom the testimony is
now offered was not a party, if the party who offered the prior testimony or
against whom it was offered had an opportunity to develop the testimony on
examination or cross-examination and had an interest and motive to do so which
is the same or similar to that of the party against whom it is now offered. Expert
opinion testimony given in a prior trial, hearing, or deposition may be excluded,
however, if the judge finds that there are experts of a like kind generally available
within a reasonable distance from the place in which the action is pending and the
interests of justice so require.
(2) Statement under belief of imminent death. In a criminal proceeding, a
statement made by a victim unavailable as a witness is admissible if it was made
15
voluntarily and in good faith and while the declarant believed in the imminence of
declarant's impending death.
(3) [Statement against interest -- adopted as Rule 803(c)(25) ]
(4) Statement of personal or family history. A statement: (A) concerning the
declarant's own birth, adoption, marriage, divorce, legitimacy, ancestry,
relationship by blood, adoption, or marriage, or other similar fact of personal or
family history, even though declarant had no means of acquiring personal
knowledge of the matter stated or (B) concerning the foregoing matters, and the
death also, of another person, if the declarant was related to the other by blood,
adoption, or marriage or was so intimately associated with the other's family as to
be likely to have accurate information concerning the matters declared.
(5) [Other exceptions--not adopted]
(6) Trustworthy statements by deceased declarants. In a civil proceeding, a
statement made by a person unavailable as a witness because of [his] death if the
statement was made in good faith upon [his] declarant’s personal knowledge in
circumstances indicating that it is trustworthy.
(7) Voters' statements. A statement by a voter concerning his or her
qualifications to vote or the fact or content of [his] the vote.
16
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Proposed Amendment to N.J.R.E. 604 and Creation of a New Rule Governing Use
of Approved Interpreters for Certain Depositions
The Committee considered a request from the AOC to amend N.J.R.E. 604,
“Interpreters,” and to create a new rule requiring the use of approved interpreters for certain
depositions.
The AOC requested that N.J.R.E. 604 be amended to eliminate the requirement that
interpreters take an oath before each proceeding. The primary purpose of the proposed change
was to increase efficiency in the courtroom by saving time. The AOC proposed the following
language: [additions to the current rule are underscored and deletions are placed in [brackets]]:
The judge shall determine the qualifications of a person [testifying as
an interpreter] interpreting on the record. A[n] person interpreting the
testimony of a witness [interpreter] shall be subject to all provisions of
these rules relating to witnesses [and shall take an oath or make an
affirmation or declaration to interpret accurately] except that an
interpreter employed by the Administrative Office of the Courts, listed
in the Judiciary’s Registry of Free-lance Interpreters and
Interpretation/ translation Agencies, or contracted through an approved
interpreting agency need not take an oath or make an affirmation or
declaration at the beginning of a proceeding.
The Committee decided to reject the proposed change. It noted that the interpreter’s
oath takes up little courtroom time and that the oath emphasizes to all participants the
seriousness and importance of the interpreter’s role in the proceeding.
17
The AOC also proposed the following text for a new evidence rule mandating that
approved interpreters be used, whenever reasonably possible, for de bene esse depositions:
Use of Interpreters at Deposition:
A party taking a deposition that is intended to be used as substantive
evidence at trial shall, whenever reasonably possible, use only
interpreters or agencies included in the Judiciary’s Registry of Freelance
Interpreters and Interpretation/translation Agencies. When such
a deposition is offered into evidence its proponent should place on the
record (1) that the interpreter or agency was included in the registry at
the time of the deposition, or (2) that despite reasonable efforts to
obtain one, no interpreter from the registry or an approved agency was
available, or (3) that the circumstances of the deposition made it
infeasible to use an interpreter from the registry or an approved
agency. This rule should not be read to interfere with the requirement
that a judge shall determine the qualifications of an interpreter set forth
in Rule 604.
The Committee rejected this proposal. After discussion, it decided that the AOC’s goals
could more appropriately be accomplished through amending the court rules on depositions or
through a directive from the Director of the AOC.
B. Proposed Amendment to N.J.R.E. 803(c)(6) – Business Records Exception to the
Hearsay Rule
The Committee considered whether it should amend N.J.R.E. 803(c)(6) to explicitly
allow the admission of business records by certification. The Committee decided such an
amendment was unnecessary, because the current rule allows for such admission. The 1991
comments of the Committee on the business exception rule make clear that live testimony is
not always necessary:
In contrast to its federal counterpart, Rule 803(c)(6) follows the 1967 New
Jersey rule in not requiring testimony of the custodian or other qualified
witness as a condition for admission of business records. The requirement
that a foundation be laid establishing the criteria for admissibility may be met
by the kind of proof that would satisfy a trial judge in a hearing under Rule
104(a), including proof presented in affidavit form, such as in the case of
hospital records. Gunter v. Fischer Scientific American, 193 N.J. Super. 688,
691-692 (App. Div. 1984).
[Biunno, Current N.J. Rules of Evidence, 1991 Supreme Court Committee
Comment on N.J.R.E. 803(c)(6).]
18
C. Proposed Hearsay Exception for Domestic Violence Cases
At the request of a citizen, the Committee considered whether it should recommend the
creation of an exception to the hearsay rule for use solely in domestic violence cases. Many
cases of domestic violence are never prosecuted because the victim refuses to testify against the
batterer in court. Proponents of such an exception argue that if a victim’s out-of-court
statements could be introduced as evidence, more domestic violence cases could be successfully
prosecuted. On the other hand, opponents of the exception fear that it would dangerously
impinge on the rights of defendants. In order to address this complex issue, a subcommittee
was formed, chaired by Committee member, Professor Sherry Colb.
The consensus of the subcommittee was that the current evidence rules, if properly
applied, are adequate to permit the successful prosecution of domestic violence cases, even in
the absence of the victim’s testimony. The Committee agrees with its subcommittee and
recommends against the adoption of such an exception.
19
III. MATTERS HELD FOR CONSIDERATION
A. Uniform Mediation Act
The New Jersey Law Revision Commission (“Commission”) asked the Committee for
comment on the Uniform Mediation Act (“the Act”), which creates a mediation
communication privilege. The Committee, though it generally favored the privilege, asked that
it be modified slightly so that mediators will be required to testify if all parties to an agreement
waive the privilege. John Cannel, Executive Director of the Commission and member of the
Committee, agreed to draft an appropriate modification to the Act. The Committee recently
received the proposed modification and will consider it in the next term.
20
IV. CONCLUSION
The members of the Supreme Court Committee on the Rules of Evidence appreciate
the opportunity to serve the Supreme Court in this capacity.
Respectfully submitted,
Hon. Philip S. Carchman, J.A.D., Chair
Hon. Sylvia B. Pressler, P.J.A.D., Vice-Chair
Wanda M. Akin, Esq.
Robert E. Bonpietro, Esq.
Hon. Theodore I. Botter, P.J.A.D. (ret.)
Hon. Warren Brody, J.A.D. (ret.)
Edward M. Callahan, Jr., Esq.
John M. Cannel, Esq.
Professor Sherry F. Colb
Hon. Marina Corodemus, J.S.C.
Hon. William M. D’Annunzio, P.J.A.D. (ret.)
Hon. William A. Dreier, P.J.A.D. (ret.)
Hugh P. Francis, Esq.
Joel M. Harris, Esq.
Sherry Hutchins Henderson, Esq.
Hon. Paul Innes, J.S.C.
Cynthia M. Jacob, Esq.
Hon. Michael Patrick King, P.J.A.D.
Joseph Krakora, Esq.
Hon. Laura M. LeWinn, J.S.C.
Brian J. Litten, Esq.
Hon. Thomas M. McCormack, J.S.C.
James H. Martin, Esq.
Antonio Martinez, Esq.
John L. Molinelli, Prosecutor
Hon. Amy O’Connor, J.S.C.
Jacqueline M. Printz, Esq.
Professor D. Michael Risinger
Aletha R. Sheppard, Esq.
Jose P. Sierra, Esq.
William B. Smith, Esq.
Hon. Edwin H. Stern, P.J.A.D.
Hon. Mark A. Sullivan, Jr., J.S.C.
Carol Ann Welsch, Esq., AOC Staff
Uniform Enforcement of Foreign Judgments Act 2A:49A-25
Uniform Enforcement of Foreign Judgments Act 2A:49A-25 Short title
1. This act shall be known and may be cited as the "Uniform Enforcement of Foreign Judgments Act."
L.1997,c.204,s.1.
2A:49A-26 "Foreign judgment" defined
2. In this act "foreign judgment" means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this State.
L.1997,c.204,s.2.
2A:49A-27 Filing of copy of foreign judgment
3. A copy of any foreign judgment authenticated in accordance with an act of Congress or the statutes of this State may be filed in the office of the Clerk of the Superior Court of this State. The clerk shall treat the foreign judgment in the same manner as a judgment of the Superior Court of this State. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a Superior Court of this State and may be enforced in the same manner.
2A:49A-28 Filing of affidavit; mailing of notice to judgment debtor
4. a. At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the Clerk of the Superior Court an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor. The affidavit shall further set forth whether the time to appeal the foreign judgment has expired and whether the court of origin has granted a stay of execution. In addition, in the case of a judgment entered by default, the affidavit shall so state and shall set forth the expiration date under the rules of the court of origin for vacating the default.
b. Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the judgment creditor's lawyer, if any, in this State. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
c. No execution or other process for enforcement of a foreign judgment filed under this act shall issue until 14 days after the date the judgment is filed.
L.1997,c.204,s.4.
2A:49A-29 Appeal, stay of execution, enforcement
5. a. If the judgment debtor shows the Superior Court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished security for the satisfaction of the judgment required by the state in which it was rendered.
b. If the judgment debtor shows the Superior Court any ground upon which enforcement of a judgment of the Superior Court would be stayed, the Superior Court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this State.
L.1997,c.204,s.5.
2A:49A-30 Fees for filing foreign judgment
6. Any person filing a foreign judgment shall pay to the Clerk of the Superior Court the fees required pursuant to N.J.S.22A:2-29 for actions taken with respect to judgments. Fees for docketing, transcription or other enforcement proceedings shall be as provided for judgments of the Superior Court in accordance with N.J.S.22A:2-29.
2A:49A-31 Right unimpaired
7. The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this act remains unimpaired.
L.1997,c.204,s.7.
2A:49A-32 Construction of act relative to consumer loans.
8.Nothing in this act shall be construed to require the enforcement of any foreign judgment which is based on a consumer loan containing any provision prohibited by the provisions of the "New Jersey Consumer Finance Licensing Act," sections 1 through 49 of P.L.1996, c.157 (C.17:11C-1 et seq.).
L.1997, c.204, s.8; amended 2009, c.53, s.70.
2A:49A-33 Uniformity of interpretation, construction
9. This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.
2A:49A-34. Findings, declarations relative to Euro as medium of payment
1.The Legislature finds and declares:
a.The member states of the European Union have adopted a uniform currency called the Euro. These states have provided a three-year period of transition, from January 1, 1999 to December 31, 2001, for this complex new monetary policy to be put into place. Prior to January 1, 2002, both the individual currencies of the states and the Euro will be in circulation. The rates of exchange for these currencies when they are converted to Euro will be set by the new Central European Bank. Additional member states of the European Union may also convert their national currencies into the Euro.
b.During the transition from national currencies to a single European Union currency, and after the Euro is in place, parties to international contracts and financial transactions will require a clear understanding of the terms and value of their transactions to conduct their business with fairness and certainty.
c.There exists some uncertainty over the enforceability of certain contracts, securities and instruments that call for payment in a currency replaced by the Euro; this legislation is intended to ensure the continuity of these contracts.
L.2000,c.23,s.1.
2A:49A-35. Definitions relative to Euro as medium of payment
2.As used in this act:
"Euro" means the currency of participating member states of the European Union signed February 17, 1992.
"European Currency Unit" or "ECU" means the currency basket that is from time to time used as the unit of account of the European community as referred to in Article 109g of the Treaty on European Union and as defined in Regulation (EC) No.3320/94.
L.2000,c.23,s.2.
2A:49A-36. Replacement of ECU by Euro in contract, security, or instrument references
3. a. When the Euro first becomes the monetary unit of participating member states of the European Union, references to the ECU in a contract, security or instrument shall be replaced by references to the Euro at the rate of one Euro to one ECU.
b.If is it unclear that a contractual reference to the ECU is a reference to the official definition of the ECU, it shall be presumed to be a reference to the ECU, which presumption shall be rebuttable, taking into account the intentions of the parties.
1. This act shall be known and may be cited as the "Uniform Enforcement of Foreign Judgments Act."
L.1997,c.204,s.1.
2A:49A-26 "Foreign judgment" defined
2. In this act "foreign judgment" means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this State.
L.1997,c.204,s.2.
2A:49A-27 Filing of copy of foreign judgment
3. A copy of any foreign judgment authenticated in accordance with an act of Congress or the statutes of this State may be filed in the office of the Clerk of the Superior Court of this State. The clerk shall treat the foreign judgment in the same manner as a judgment of the Superior Court of this State. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a Superior Court of this State and may be enforced in the same manner.
2A:49A-28 Filing of affidavit; mailing of notice to judgment debtor
4. a. At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the Clerk of the Superior Court an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor. The affidavit shall further set forth whether the time to appeal the foreign judgment has expired and whether the court of origin has granted a stay of execution. In addition, in the case of a judgment entered by default, the affidavit shall so state and shall set forth the expiration date under the rules of the court of origin for vacating the default.
b. Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the judgment creditor's lawyer, if any, in this State. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
c. No execution or other process for enforcement of a foreign judgment filed under this act shall issue until 14 days after the date the judgment is filed.
L.1997,c.204,s.4.
2A:49A-29 Appeal, stay of execution, enforcement
5. a. If the judgment debtor shows the Superior Court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished security for the satisfaction of the judgment required by the state in which it was rendered.
b. If the judgment debtor shows the Superior Court any ground upon which enforcement of a judgment of the Superior Court would be stayed, the Superior Court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this State.
L.1997,c.204,s.5.
2A:49A-30 Fees for filing foreign judgment
6. Any person filing a foreign judgment shall pay to the Clerk of the Superior Court the fees required pursuant to N.J.S.22A:2-29 for actions taken with respect to judgments. Fees for docketing, transcription or other enforcement proceedings shall be as provided for judgments of the Superior Court in accordance with N.J.S.22A:2-29.
2A:49A-31 Right unimpaired
7. The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this act remains unimpaired.
L.1997,c.204,s.7.
2A:49A-32 Construction of act relative to consumer loans.
8.Nothing in this act shall be construed to require the enforcement of any foreign judgment which is based on a consumer loan containing any provision prohibited by the provisions of the "New Jersey Consumer Finance Licensing Act," sections 1 through 49 of P.L.1996, c.157 (C.17:11C-1 et seq.).
L.1997, c.204, s.8; amended 2009, c.53, s.70.
2A:49A-33 Uniformity of interpretation, construction
9. This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.
2A:49A-34. Findings, declarations relative to Euro as medium of payment
1.The Legislature finds and declares:
a.The member states of the European Union have adopted a uniform currency called the Euro. These states have provided a three-year period of transition, from January 1, 1999 to December 31, 2001, for this complex new monetary policy to be put into place. Prior to January 1, 2002, both the individual currencies of the states and the Euro will be in circulation. The rates of exchange for these currencies when they are converted to Euro will be set by the new Central European Bank. Additional member states of the European Union may also convert their national currencies into the Euro.
b.During the transition from national currencies to a single European Union currency, and after the Euro is in place, parties to international contracts and financial transactions will require a clear understanding of the terms and value of their transactions to conduct their business with fairness and certainty.
c.There exists some uncertainty over the enforceability of certain contracts, securities and instruments that call for payment in a currency replaced by the Euro; this legislation is intended to ensure the continuity of these contracts.
L.2000,c.23,s.1.
2A:49A-35. Definitions relative to Euro as medium of payment
2.As used in this act:
"Euro" means the currency of participating member states of the European Union signed February 17, 1992.
"European Currency Unit" or "ECU" means the currency basket that is from time to time used as the unit of account of the European community as referred to in Article 109g of the Treaty on European Union and as defined in Regulation (EC) No.3320/94.
L.2000,c.23,s.2.
2A:49A-36. Replacement of ECU by Euro in contract, security, or instrument references
3. a. When the Euro first becomes the monetary unit of participating member states of the European Union, references to the ECU in a contract, security or instrument shall be replaced by references to the Euro at the rate of one Euro to one ECU.
b.If is it unclear that a contractual reference to the ECU is a reference to the official definition of the ECU, it shall be presumed to be a reference to the ECU, which presumption shall be rebuttable, taking into account the intentions of the parties.
Thursday, February 11, 2010
2A:18-61.49. Applicability of protected tenancy
2A:18-61.49. Applicability of protected tenancy
10. The protected tenancy status authorized under the provisions of this act shall not be applicable to any qualified tenant until such time as the owner has filed his conversion recording. The protected tenancy status shall automatically apply as soon as a tenant receives notice of qualification and the landlord files his conversion recording. The conversion recording shall not be filed until after the registration of conversion.
10. The protected tenancy status authorized under the provisions of this act shall not be applicable to any qualified tenant until such time as the owner has filed his conversion recording. The protected tenancy status shall automatically apply as soon as a tenant receives notice of qualification and the landlord files his conversion recording. The conversion recording shall not be filed until after the registration of conversion.
2A:18-61.48. Requisites for approval of registration of conversion
2A:18-61.48. Requisites for approval of registration of conversion
9. No registration of conversion for a building or structure located in a qualified county shall be approved until the department receives proof that the provisions of section 8 of this act have been complied with, and that notification as required in that section has been made to all tenants who filed application for protected tenancy status on or before the application deadline prescribed in the notice given pursuant to section 7 of this act. The proof shall be by affidavit or in such form as the department may require.
9. No registration of conversion for a building or structure located in a qualified county shall be approved until the department receives proof that the provisions of section 8 of this act have been complied with, and that notification as required in that section has been made to all tenants who filed application for protected tenancy status on or before the application deadline prescribed in the notice given pursuant to section 7 of this act. The proof shall be by affidavit or in such form as the department may require.
2A:18-61.47. Determining tenants' qualifications
2A:18-61.47. Determining tenants' qualifications
8. Within 30 days after receipt of an application for the protected tenancy status authorized under the provisions of this act, the administrative agency shall make a determination of qualification. It shall send written notice of qualification to each tenant who is a resident of the qualified county and:
a. applied on or before the date of registration of conversion by the department, or within one year from the effective date of this act, whichever is later; and,
b. has an annual household income that does not exceed the maximum amount permitted for qualification, or is exempt from that income limitation by reason of age or disability; and,
c. has occupied the premises as his principal residence for at least 12 consecutive months next preceding the date of application.
The administrative agency shall likewise send a notice of denial, with reasons therefor, to any tenant whom it determines not to be qualified. That notice shall inform the tenant of his right to remain in his dwelling unit until the owner shall have complied with the requirements of P.L.1975, c.311 (C.2A:18-61.7 et al.) and shall include an explanation of the meaning of "comparable housing" as used in that act. The owner shall be notified of those tenants who are determined to be qualified and unqualified.
The administrative agency may require that the application include such documents and information as may be necessary to establish that the tenant is qualified for a protected tenancy status under the provisions of this act and shall require that such documentation and information be submitted under oath. The commissioner may by regulation adopt uniform forms to used in applying for protected tenancy status, for notifying an applicant of qualification or denial thereof, and conveying to a denied applicant the information concerning his rights to continued tenancy and offer of comparable housing; he may also adopt such other regulations for the procedure of determining qualification as he deems necessary or expedient to the proper effectuation of the provisions and purposes of this act.
8. Within 30 days after receipt of an application for the protected tenancy status authorized under the provisions of this act, the administrative agency shall make a determination of qualification. It shall send written notice of qualification to each tenant who is a resident of the qualified county and:
a. applied on or before the date of registration of conversion by the department, or within one year from the effective date of this act, whichever is later; and,
b. has an annual household income that does not exceed the maximum amount permitted for qualification, or is exempt from that income limitation by reason of age or disability; and,
c. has occupied the premises as his principal residence for at least 12 consecutive months next preceding the date of application.
The administrative agency shall likewise send a notice of denial, with reasons therefor, to any tenant whom it determines not to be qualified. That notice shall inform the tenant of his right to remain in his dwelling unit until the owner shall have complied with the requirements of P.L.1975, c.311 (C.2A:18-61.7 et al.) and shall include an explanation of the meaning of "comparable housing" as used in that act. The owner shall be notified of those tenants who are determined to be qualified and unqualified.
The administrative agency may require that the application include such documents and information as may be necessary to establish that the tenant is qualified for a protected tenancy status under the provisions of this act and shall require that such documentation and information be submitted under oath. The commissioner may by regulation adopt uniform forms to used in applying for protected tenancy status, for notifying an applicant of qualification or denial thereof, and conveying to a denied applicant the information concerning his rights to continued tenancy and offer of comparable housing; he may also adopt such other regulations for the procedure of determining qualification as he deems necessary or expedient to the proper effectuation of the provisions and purposes of this act.
2A:18-61.46. Notice, etc. required of owner seeking to convert, notice to tenants
2A:18-61.46. Notice, etc. required of owner seeking to convert, notice to tenants
7. The owner of any building or structure in a qualified county who seeks to convert any premises shall notify the administrative agency of that intention prior to filing the application for registration of conversion with the department. The owner shall supply the administrative agency with a list of every tenant residing in the premises, with stamped envelopes addressed to each tenant and with sufficient copies of the notice to tenants and application form for protected tenancy status. Within 10 days thereafter, the administrative agency shall notify each residential tenant in writing of the owner's intention and of the applicability of the provisions of this act and shall provide him with a written application form. The agency's notice shall be substantially in the following form:
"NOTICE
THE OWNER OF YOUR APARTMENT HAS NOTIFIED ................................ (insert name of municipality) OF HIS INTENTION TO CONVERT TO A CONDOMINIUM OR COOPERATIVE.
UNDER STATE LAW YOU MAY BE ENTITLED TO A PROTECTED TENANCY.
PROTECTED TENANCY MEANS THAT YOU CANNOT BE EVICTED BECAUSE OF THE CONVERSION.
YOU MAY BE QUALIFIED:
(1) IF YOU HAVE LIVED IN YOUR APARTMENT FOR A YEAR AND
(2) IF YOUR HOUSEHOLD INCOME IS LESS THAN ............................................. (insert current maximum qualifying income established under section 3 of this act), OR
YOU ARE DISABLED OR ARE AT LEAST 75 YEARS OLD.
IF YOU THINK YOU MAY QUALIFY, SEND IN THE APPLICATION FORM BY ....................... (insert date 60 days after municipality's mailing)
TO THE ............................................. (insert name and address of administrative agency)
EVEN IF YOU DO NOT QUALIFY, YOU HAVE THE RIGHT TO REMAIN IN YOUR APARTMENT UNTIL YOUR LANDLORD HAS COMPLIED WITH LAWS REGARDING THE OFFER OF COMPARABLE HOUSING.
FOR FURTHER INFORMATION CALL................... (insert phone number of administrative agency)
OR .............................................." (insert phone number of Department of Community Affairs)
The department shall not accept any application for registration of conversion for any building or structure unless included in the application is proof that the administrative agency notified the tenants prior to the application for registration. The proof shall be by affidavit or in such other form as the department shall require.
In any municipality where the administrative agency is the same as the agency administering the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.), the notices required under that act and this act may be combined in a single mailing.
7. The owner of any building or structure in a qualified county who seeks to convert any premises shall notify the administrative agency of that intention prior to filing the application for registration of conversion with the department. The owner shall supply the administrative agency with a list of every tenant residing in the premises, with stamped envelopes addressed to each tenant and with sufficient copies of the notice to tenants and application form for protected tenancy status. Within 10 days thereafter, the administrative agency shall notify each residential tenant in writing of the owner's intention and of the applicability of the provisions of this act and shall provide him with a written application form. The agency's notice shall be substantially in the following form:
"NOTICE
THE OWNER OF YOUR APARTMENT HAS NOTIFIED ................................ (insert name of municipality) OF HIS INTENTION TO CONVERT TO A CONDOMINIUM OR COOPERATIVE.
UNDER STATE LAW YOU MAY BE ENTITLED TO A PROTECTED TENANCY.
PROTECTED TENANCY MEANS THAT YOU CANNOT BE EVICTED BECAUSE OF THE CONVERSION.
YOU MAY BE QUALIFIED:
(1) IF YOU HAVE LIVED IN YOUR APARTMENT FOR A YEAR AND
(2) IF YOUR HOUSEHOLD INCOME IS LESS THAN ............................................. (insert current maximum qualifying income established under section 3 of this act), OR
YOU ARE DISABLED OR ARE AT LEAST 75 YEARS OLD.
IF YOU THINK YOU MAY QUALIFY, SEND IN THE APPLICATION FORM BY ....................... (insert date 60 days after municipality's mailing)
TO THE ............................................. (insert name and address of administrative agency)
EVEN IF YOU DO NOT QUALIFY, YOU HAVE THE RIGHT TO REMAIN IN YOUR APARTMENT UNTIL YOUR LANDLORD HAS COMPLIED WITH LAWS REGARDING THE OFFER OF COMPARABLE HOUSING.
FOR FURTHER INFORMATION CALL................... (insert phone number of administrative agency)
OR .............................................." (insert phone number of Department of Community Affairs)
The department shall not accept any application for registration of conversion for any building or structure unless included in the application is proof that the administrative agency notified the tenants prior to the application for registration. The proof shall be by affidavit or in such other form as the department shall require.
In any municipality where the administrative agency is the same as the agency administering the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.), the notices required under that act and this act may be combined in a single mailing.
2A:18-61.45. Designation of administrative agency
2A:18-61.45. Designation of administrative agency
6. Each municipal governing body in a qualified county shall designate a municipal board, agency or officer to act as its administrative agency for the purposes of this act or may enter into a contractual agreement with an appropriate county to act as its administrative agency for purposes of this act. In the absence of such authorization or contractual agreement, this act shall be administered by the board, agency or officer administering the provisions of the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.) in the municipality.
6. Each municipal governing body in a qualified county shall designate a municipal board, agency or officer to act as its administrative agency for the purposes of this act or may enter into a contractual agreement with an appropriate county to act as its administrative agency for purposes of this act. In the absence of such authorization or contractual agreement, this act shall be administered by the board, agency or officer administering the provisions of the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.) in the municipality.
2A:18-61.44. Protected tenancy, qualification, duration
2A:18-61.44. Protected tenancy, qualification, duration
5. a. Each qualified tenant shall be granted a protected tenancy status with respect to his dwelling unit upon conversion of the building or structure in which the unit is located. The protected tenancy status shall be granted upon proper application and qualification pursuant to the provisions of this act.
b. Each qualified tenant in need of comparable housing shall be entitled to remain in his dwelling unit upon conversion of the building or structure in which the unit is located until the owner of the building or structure has complied with the provisions of P.L.1975, c.311 (C.2A:18-61.7 et al.).
5. a. Each qualified tenant shall be granted a protected tenancy status with respect to his dwelling unit upon conversion of the building or structure in which the unit is located. The protected tenancy status shall be granted upon proper application and qualification pursuant to the provisions of this act.
b. Each qualified tenant in need of comparable housing shall be entitled to remain in his dwelling unit upon conversion of the building or structure in which the unit is located until the owner of the building or structure has complied with the provisions of P.L.1975, c.311 (C.2A:18-61.7 et al.).
2A:18-61.43. Maximum qualifying income, adjustment
2A:18-61.43. Maximum qualifying income, adjustment
4. As of the effective date of this act, maximum qualifying income for the purpose of determining qualified tenant status as defined in section 3 of this act shall be in the case of a household comprising one person, $31,400; two persons, $38,500; three persons, $44,800; four persons, $50,300; five persons, $55,000; six persons, $58,900; seven persons, $62,000; eight or more persons, $64,300. In the case of any application for protected tenancy filed more than one year from the effective date of this act, and upon any occasion when termination of a previously granted protected tenancy is sought pursuant to section 11 of this act upon the grounds set forth in paragraph (2) of subsection a. of that section, these figures shall be adjusted by the percentage change, if any, in the applicable index that has occurred since the effective date of this act.
4. As of the effective date of this act, maximum qualifying income for the purpose of determining qualified tenant status as defined in section 3 of this act shall be in the case of a household comprising one person, $31,400; two persons, $38,500; three persons, $44,800; four persons, $50,300; five persons, $55,000; six persons, $58,900; seven persons, $62,000; eight or more persons, $64,300. In the case of any application for protected tenancy filed more than one year from the effective date of this act, and upon any occasion when termination of a previously granted protected tenancy is sought pursuant to section 11 of this act upon the grounds set forth in paragraph (2) of subsection a. of that section, these figures shall be adjusted by the percentage change, if any, in the applicable index that has occurred since the effective date of this act.
Wednesday, February 10, 2010
2A:18-61.42. Definitions
2A:18-61.42. Definitions
3. As used in this act:
"Administrative agency" means the municipal board, officer or agency designated, or the county agency contracted with, pursuant to section 6 of this act.
"Annual household income" means the total income from all sources during the last full calendar year, or the annual average of that total income during the last two calendar years, whichever is less, of a tenant and all members of the household who are residing in the tenant's dwelling unit when the tenant applies for protected tenancy, whether or not such income is subject to taxation by any taxing authority.
"Commissioner" means the Commissioner of Community Affairs.
"Conversion" means conversion as defined in section 3 of "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-23).
"Conversion recording" means the recording with the appropriate county officer of a master deed for a condominium or a deed to a cooperative corporation for a planned residential development or separable fee simple ownership of the dwelling units.
"County rental housing shortage" means a certification issued by the Commissioner of Community Affairs that there has occurred a significant decline in the availability of rental dwelling units in the county due to conversions; provided, however, that the commissioner shall not issue any such certification unless during the immediately preceeding 10 year period:
a. The aggregate number of rental units subject to registrations of conversion during any three consecutive years in the county exceeds 10,000; and
b. The aggregate number of rental units subject to registrations of conversion in at least one of those three years exceeds 5,000.
"Department" means the Department of Community Affairs.
"Index" means the annual average over a 12-month period beginning September 1 and ending August 31 of the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), All Items Series A, of the United States Department of Labor (1957-1959 = 100), for either the New York, NY-Northeastern New Jersey or the Philadelphia, PA-New Jersey region, according as either shall have been determined by the commissioner to be applicable in the locality of a property undergoing conversion.
"Protected tenancy period" means, except as otherwise provided in section 11 of this act, all that time following the conversion recording for a building or structure during which a qualified tenant in that building or structure continues to be a qualified tenant and continues to occupy a dwelling unit therein as his principal residence.
"Qualified county" means:
a. Any county with a population in excess of 500,000 and a population density in excess of 8,500 per square mile, according to the most recent federal decennial census; or
b. Any county wherein there exists a county rental housing shortage.
"Qualified tenant" means a tenant who is a resident in a qualified county and:
(1) Applied for protected tenancy status on or before the date of registration of conversion by the department, or within one year of the effective date of this act, whichever is later;
(2) Has occupied the premises as his principal residence for at least 12 consecutive months next preceding the date of application; and
(3) Has an annual household income that does not at the time of application exceed the maximum qualifying income as determined pursuant to section 4 of this act, except that this income limitation shall not apply to any tenant who is age 75 or more years or is disabled within the meaning of section 3 of P.L.1981, c.226 (C.2A:18-61.24).
"Registration of conversion" means an approval of an application for registration by the department in accordance with "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.).
"Tenant in need of comparable housing" means a tenant who is not a qualified tenant under this act and is not eligible for protected tenancy under the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.).
3. As used in this act:
"Administrative agency" means the municipal board, officer or agency designated, or the county agency contracted with, pursuant to section 6 of this act.
"Annual household income" means the total income from all sources during the last full calendar year, or the annual average of that total income during the last two calendar years, whichever is less, of a tenant and all members of the household who are residing in the tenant's dwelling unit when the tenant applies for protected tenancy, whether or not such income is subject to taxation by any taxing authority.
"Commissioner" means the Commissioner of Community Affairs.
"Conversion" means conversion as defined in section 3 of "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-23).
"Conversion recording" means the recording with the appropriate county officer of a master deed for a condominium or a deed to a cooperative corporation for a planned residential development or separable fee simple ownership of the dwelling units.
"County rental housing shortage" means a certification issued by the Commissioner of Community Affairs that there has occurred a significant decline in the availability of rental dwelling units in the county due to conversions; provided, however, that the commissioner shall not issue any such certification unless during the immediately preceeding 10 year period:
a. The aggregate number of rental units subject to registrations of conversion during any three consecutive years in the county exceeds 10,000; and
b. The aggregate number of rental units subject to registrations of conversion in at least one of those three years exceeds 5,000.
"Department" means the Department of Community Affairs.
"Index" means the annual average over a 12-month period beginning September 1 and ending August 31 of the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), All Items Series A, of the United States Department of Labor (1957-1959 = 100), for either the New York, NY-Northeastern New Jersey or the Philadelphia, PA-New Jersey region, according as either shall have been determined by the commissioner to be applicable in the locality of a property undergoing conversion.
"Protected tenancy period" means, except as otherwise provided in section 11 of this act, all that time following the conversion recording for a building or structure during which a qualified tenant in that building or structure continues to be a qualified tenant and continues to occupy a dwelling unit therein as his principal residence.
"Qualified county" means:
a. Any county with a population in excess of 500,000 and a population density in excess of 8,500 per square mile, according to the most recent federal decennial census; or
b. Any county wherein there exists a county rental housing shortage.
"Qualified tenant" means a tenant who is a resident in a qualified county and:
(1) Applied for protected tenancy status on or before the date of registration of conversion by the department, or within one year of the effective date of this act, whichever is later;
(2) Has occupied the premises as his principal residence for at least 12 consecutive months next preceding the date of application; and
(3) Has an annual household income that does not at the time of application exceed the maximum qualifying income as determined pursuant to section 4 of this act, except that this income limitation shall not apply to any tenant who is age 75 or more years or is disabled within the meaning of section 3 of P.L.1981, c.226 (C.2A:18-61.24).
"Registration of conversion" means an approval of an application for registration by the department in accordance with "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.).
"Tenant in need of comparable housing" means a tenant who is not a qualified tenant under this act and is not eligible for protected tenancy under the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.).
2A:18-61.42. Definitions
2A:18-61.42. Definitions
3. As used in this act:
"Administrative agency" means the municipal board, officer or agency designated, or the county agency contracted with, pursuant to section 6 of this act.
"Annual household income" means the total income from all sources during the last full calendar year, or the annual average of that total income during the last two calendar years, whichever is less, of a tenant and all members of the household who are residing in the tenant's dwelling unit when the tenant applies for protected tenancy, whether or not such income is subject to taxation by any taxing authority.
"Commissioner" means the Commissioner of Community Affairs.
"Conversion" means conversion as defined in section 3 of "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-23).
"Conversion recording" means the recording with the appropriate county officer of a master deed for a condominium or a deed to a cooperative corporation for a planned residential development or separable fee simple ownership of the dwelling units.
"County rental housing shortage" means a certification issued by the Commissioner of Community Affairs that there has occurred a significant decline in the availability of rental dwelling units in the county due to conversions; provided, however, that the commissioner shall not issue any such certification unless during the immediately preceeding 10 year period:
a. The aggregate number of rental units subject to registrations of conversion during any three consecutive years in the county exceeds 10,000; and
b. The aggregate number of rental units subject to registrations of conversion in at least one of those three years exceeds 5,000.
"Department" means the Department of Community Affairs.
"Index" means the annual average over a 12-month period beginning September 1 and ending August 31 of the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), All Items Series A, of the United States Department of Labor (1957-1959 = 100), for either the New York, NY-Northeastern New Jersey or the Philadelphia, PA-New Jersey region, according as either shall have been determined by the commissioner to be applicable in the locality of a property undergoing conversion.
"Protected tenancy period" means, except as otherwise provided in section 11 of this act, all that time following the conversion recording for a building or structure during which a qualified tenant in that building or structure continues to be a qualified tenant and continues to occupy a dwelling unit therein as his principal residence.
"Qualified county" means:
a. Any county with a population in excess of 500,000 and a population density in excess of 8,500 per square mile, according to the most recent federal decennial census; or
b. Any county wherein there exists a county rental housing shortage.
"Qualified tenant" means a tenant who is a resident in a qualified county and:
(1) Applied for protected tenancy status on or before the date of registration of conversion by the department, or within one year of the effective date of this act, whichever is later;
(2) Has occupied the premises as his principal residence for at least 12 consecutive months next preceding the date of application; and
(3) Has an annual household income that does not at the time of application exceed the maximum qualifying income as determined pursuant to section 4 of this act, except that this income limitation shall not apply to any tenant who is age 75 or more years or is disabled within the meaning of section 3 of P.L.1981, c.226 (C.2A:18-61.24).
"Registration of conversion" means an approval of an application for registration by the department in accordance with "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.).
"Tenant in need of comparable housing" means a tenant who is not a qualified tenant under this act and is not eligible for protected tenancy under the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.).
3. As used in this act:
"Administrative agency" means the municipal board, officer or agency designated, or the county agency contracted with, pursuant to section 6 of this act.
"Annual household income" means the total income from all sources during the last full calendar year, or the annual average of that total income during the last two calendar years, whichever is less, of a tenant and all members of the household who are residing in the tenant's dwelling unit when the tenant applies for protected tenancy, whether or not such income is subject to taxation by any taxing authority.
"Commissioner" means the Commissioner of Community Affairs.
"Conversion" means conversion as defined in section 3 of "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-23).
"Conversion recording" means the recording with the appropriate county officer of a master deed for a condominium or a deed to a cooperative corporation for a planned residential development or separable fee simple ownership of the dwelling units.
"County rental housing shortage" means a certification issued by the Commissioner of Community Affairs that there has occurred a significant decline in the availability of rental dwelling units in the county due to conversions; provided, however, that the commissioner shall not issue any such certification unless during the immediately preceeding 10 year period:
a. The aggregate number of rental units subject to registrations of conversion during any three consecutive years in the county exceeds 10,000; and
b. The aggregate number of rental units subject to registrations of conversion in at least one of those three years exceeds 5,000.
"Department" means the Department of Community Affairs.
"Index" means the annual average over a 12-month period beginning September 1 and ending August 31 of the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), All Items Series A, of the United States Department of Labor (1957-1959 = 100), for either the New York, NY-Northeastern New Jersey or the Philadelphia, PA-New Jersey region, according as either shall have been determined by the commissioner to be applicable in the locality of a property undergoing conversion.
"Protected tenancy period" means, except as otherwise provided in section 11 of this act, all that time following the conversion recording for a building or structure during which a qualified tenant in that building or structure continues to be a qualified tenant and continues to occupy a dwelling unit therein as his principal residence.
"Qualified county" means:
a. Any county with a population in excess of 500,000 and a population density in excess of 8,500 per square mile, according to the most recent federal decennial census; or
b. Any county wherein there exists a county rental housing shortage.
"Qualified tenant" means a tenant who is a resident in a qualified county and:
(1) Applied for protected tenancy status on or before the date of registration of conversion by the department, or within one year of the effective date of this act, whichever is later;
(2) Has occupied the premises as his principal residence for at least 12 consecutive months next preceding the date of application; and
(3) Has an annual household income that does not at the time of application exceed the maximum qualifying income as determined pursuant to section 4 of this act, except that this income limitation shall not apply to any tenant who is age 75 or more years or is disabled within the meaning of section 3 of P.L.1981, c.226 (C.2A:18-61.24).
"Registration of conversion" means an approval of an application for registration by the department in accordance with "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.).
"Tenant in need of comparable housing" means a tenant who is not a qualified tenant under this act and is not eligible for protected tenancy under the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.).
2A:18-61.40. Short title
2A:18-61.40. Short title
1. This act shall be known and may be cited as the "Tenant Protection Act of 1992."
1. This act shall be known and may be cited as the "Tenant Protection Act of 1992."
2A:18-61.38. Rules and regulations
2A:18-61.38. Rules and regulations
The Department of Community Affairs is authorized to adopt such rules and regulations as may be necessary to implement the provisions of this amendatory and supplementary act.
L.1981, c. 226, s. 19, eff. July 27, 1981.
2A:18-61.39. Liberal construction of act
This amendatory and supplementary act shall be liberally construed to effectuate the purposes thereof.
The Department of Community Affairs is authorized to adopt such rules and regulations as may be necessary to implement the provisions of this amendatory and supplementary act.
L.1981, c. 226, s. 19, eff. July 27, 1981.
2A:18-61.39. Liberal construction of act
This amendatory and supplementary act shall be liberally construed to effectuate the purposes thereof.
2A:18-61.37. Severability
2A:18-61.37. Severability
If any section, subsection, paragraph, sentence or other part of this amendatory and supplementary act is adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remainder of this act, but shall be confined in its effect to the section, subsection, paragraph, sentence or other part of this act directly involved in the controversy in which said judgment shall have been rendered.
If any section, subsection, paragraph, sentence or other part of this amendatory and supplementary act is adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remainder of this act, but shall be confined in its effect to the section, subsection, paragraph, sentence or other part of this act directly involved in the controversy in which said judgment shall have been rendered.
2A:18-61.36. Agreement by tenant to waive rights; deemed against public policy and unenforceable
2A:18-61.36. Agreement by tenant to waive rights; deemed against public policy and unenforceable
Any agreement whereby the tenant waives any rights under P.L.1981, c. 226 (C. 2A:18-61.22 et seq.) on or after the effective date of this 1983 amendatory act shall be deemed to be against public policy and unenforceable.
Any agreement whereby the tenant waives any rights under P.L.1981, c. 226 (C. 2A:18-61.22 et seq.) on or after the effective date of this 1983 amendatory act shall be deemed to be against public policy and unenforceable.
2A:18-61.35. Fee
2A:18-61.35. Fee
A municipality is authorized to charge an owner a fee which may vary according to the size of the building to cover the cost of providing the services required by this amendatory and supplementary act.
A municipality is authorized to charge an owner a fee which may vary according to the size of the building to cover the cost of providing the services required by this amendatory and supplementary act.
2A:18-61.35. Fee
2A:18-61.35. Fee
A municipality is authorized to charge an owner a fee which may vary according to the size of the building to cover the cost of providing the services required by this amendatory and supplementary act.
A municipality is authorized to charge an owner a fee which may vary according to the size of the building to cover the cost of providing the services required by this amendatory and supplementary act.
2A:18-61.34. Informing prospective purchaser of act; contract or agreement for sale; clause informing of application of act and acknowledgment by
2A:18-61.34. Informing prospective purchaser of act; contract or agreement for sale; clause informing of application of act and acknowledgment by purchaser
Any public offering statement for a conversion as required by "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c. 419 (C. 45:22A-21 et seq.), shall clearly inform the prospective purchaser of the provisions of this amendatory and supplementary act, including, but not limited to, the provisions concerning eviction, rent increases and leases. Any contract or agreement for sale of a converted unit shall contain a clause in 10-point bold type or larger that the contract is subject to the terms of this amendatory and supplementary act concerning eviction and rent increases and an acknowledgement that the purchaser has been informed of these terms.
Any public offering statement for a conversion as required by "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c. 419 (C. 45:22A-21 et seq.), shall clearly inform the prospective purchaser of the provisions of this amendatory and supplementary act, including, but not limited to, the provisions concerning eviction, rent increases and leases. Any contract or agreement for sale of a converted unit shall contain a clause in 10-point bold type or larger that the contract is subject to the terms of this amendatory and supplementary act concerning eviction and rent increases and an acknowledgement that the purchaser has been informed of these terms.
2A:18-61.33. Termination upon purchase of unit by senior citizen or disabled tenant
2A:18-61.33. Termination upon purchase of unit by senior citizen or disabled tenant
In the event that a senior citizen tenant or disabled tenant purchases the dwelling unit he occupies, the protected tenancy status shall terminate immediately upon purchase.
In the event that a senior citizen tenant or disabled tenant purchases the dwelling unit he occupies, the protected tenancy status shall terminate immediately upon purchase.
2A:18-61.32. Termination of protected tenancy
2A:18-61.32. Termination of protected tenancy
11. The administrative agency or officer shall terminate the protected tenancy status immediately upon finding that:
a. The dwelling unit is no longer the principal residence of the senior citizen tenant or disabled tenant; or
b. The tenant's annual household income, or the average of the tenant's annual household income for the current year, computed on an annual basis, and the tenant's annual household income for the two preceding years, whichever is less, exceeds an amount equal to three times the county per capita personal income, as last reported by the Department of Labor and Industry on the basis of the U.S. Department of Commerce's Bureau of Economic Analysis data, or $50,000.00, whichever is greater.
The department shall adjust the county per capita personal income to be used in subsection b. of this section if there is a difference of one or more years between (1) the year in which the last reported county per capita personal income was based and (2) the last year in which the tenant's annual household income is based. The county per capita personal income shall be adjusted by the department by an amount equal to the number of years of the difference above times the average increase or decrease in the county per capita personal income for three years, including in the calculation the current year reported and the three immediately preceding years.
Upon the termination of the protected tenancy status by the administrative agency or officer, the senior citizen tenant or disabled tenant may be removed from the dwelling unit pursuant to P.L.1974, c.49 (C.2A:18-61.1 et al.), except that all notice and other times set forth therein shall be calculated and extend from the date of the expiration or termination of the protected tenancy period, or the date of the expiration of the last lease entered into with the senior citizen tenant or disabled tenant during the protected tenancy period, whichever shall be later.
If the administrative agency determines pursuant to this section that a tenant is no longer qualified for protected tenancy under this act, the administrative agency shall proceed to determine the eligibility of that tenant under the "Tenant Protection Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.), or, in any case in which the administrative agency is not the same as the agency administering that other act in the municipality, refer the case to the appropriate administrative agency for such determination. If the tenant is found to be eligible under the "Tenant Protection Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.), his protected tenancy status shall be continued. The protected tenancy status of the tenant shall remain in full force pending such determination.
11. The administrative agency or officer shall terminate the protected tenancy status immediately upon finding that:
a. The dwelling unit is no longer the principal residence of the senior citizen tenant or disabled tenant; or
b. The tenant's annual household income, or the average of the tenant's annual household income for the current year, computed on an annual basis, and the tenant's annual household income for the two preceding years, whichever is less, exceeds an amount equal to three times the county per capita personal income, as last reported by the Department of Labor and Industry on the basis of the U.S. Department of Commerce's Bureau of Economic Analysis data, or $50,000.00, whichever is greater.
The department shall adjust the county per capita personal income to be used in subsection b. of this section if there is a difference of one or more years between (1) the year in which the last reported county per capita personal income was based and (2) the last year in which the tenant's annual household income is based. The county per capita personal income shall be adjusted by the department by an amount equal to the number of years of the difference above times the average increase or decrease in the county per capita personal income for three years, including in the calculation the current year reported and the three immediately preceding years.
Upon the termination of the protected tenancy status by the administrative agency or officer, the senior citizen tenant or disabled tenant may be removed from the dwelling unit pursuant to P.L.1974, c.49 (C.2A:18-61.1 et al.), except that all notice and other times set forth therein shall be calculated and extend from the date of the expiration or termination of the protected tenancy period, or the date of the expiration of the last lease entered into with the senior citizen tenant or disabled tenant during the protected tenancy period, whichever shall be later.
If the administrative agency determines pursuant to this section that a tenant is no longer qualified for protected tenancy under this act, the administrative agency shall proceed to determine the eligibility of that tenant under the "Tenant Protection Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.), or, in any case in which the administrative agency is not the same as the agency administering that other act in the municipality, refer the case to the appropriate administrative agency for such determination. If the tenant is found to be eligible under the "Tenant Protection Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.), his protected tenancy status shall be continued. The protected tenancy status of the tenant shall remain in full force pending such determination.
2A:18-61.31. Rent increase restrictions
2A:18-61.31. Rent increase restrictions
In a municipality which does not have a rent control ordinance in effect, no evidence of increased costs which are solely the result of the conversion, including but not limited to any increase in financing or carrying costs, and which do not add services or amenities not previously provided shall be used as a basis to establish the reasonableness of a rent increase under section 2f. of P.L. 1974, c. 49 (C. 2A:18-61.1).
In a municipality which has a rent control ordinance in effect, a rent increase for a tenant with a protected tenancy status, or for any tenant to whom notice of termination pursuant to section 3g. of P.L. 1974, c. 49 (C. 2A:18-61.2) has been given, shall not exceed the increase authorized by the ordinance for rent controlled units. Increased costs which are solely the result of a conversion, including but not limited to any increase in financing or carrying costs, and which do not add services or amenities not previously provided shall not be passed directly through to these tenants as surcharges or pass-throughs on the rent, shall not be used as the basis for a rent increase, and shall not be used as a basis for an increase in a fair return or hardship hearing before a municipal rent board or on any appeal from such determination.
In a municipality which does not have a rent control ordinance in effect, no evidence of increased costs which are solely the result of the conversion, including but not limited to any increase in financing or carrying costs, and which do not add services or amenities not previously provided shall be used as a basis to establish the reasonableness of a rent increase under section 2f. of P.L. 1974, c. 49 (C. 2A:18-61.1).
In a municipality which has a rent control ordinance in effect, a rent increase for a tenant with a protected tenancy status, or for any tenant to whom notice of termination pursuant to section 3g. of P.L. 1974, c. 49 (C. 2A:18-61.2) has been given, shall not exceed the increase authorized by the ordinance for rent controlled units. Increased costs which are solely the result of a conversion, including but not limited to any increase in financing or carrying costs, and which do not add services or amenities not previously provided shall not be passed directly through to these tenants as surcharges or pass-throughs on the rent, shall not be used as the basis for a rent increase, and shall not be used as a basis for an increase in a fair return or hardship hearing before a municipal rent board or on any appeal from such determination.
2A:18-61.30. Protected tenancy status; applicability after notice of eligibility and filing of conversion recording
2A:18-61.30. Protected tenancy status; applicability after notice of eligibility and filing of conversion recording
Protected tenancy status shall not be applicable to any eligible tenant until such time as the owner has filed his conversion recording. The protected tenancy status shall automatically apply as soon as a tenant receives notice of eligibility and the landlord files his conversion recording. The conversion recording shall not be filed until after the registration of conversion.
Protected tenancy status shall not be applicable to any eligible tenant until such time as the owner has filed his conversion recording. The protected tenancy status shall automatically apply as soon as a tenant receives notice of eligibility and the landlord files his conversion recording. The conversion recording shall not be filed until after the registration of conversion.
2A:18-61.30. Protected tenancy status; applicability after notice of eligibility and filing of conversion recording
2A:18-61.30. Protected tenancy status; applicability after notice of eligibility and filing of conversion recording
Protected tenancy status shall not be applicable to any eligible tenant until such time as the owner has filed his conversion recording. The protected tenancy status shall automatically apply as soon as a tenant receives notice of eligibility and the landlord files his conversion recording. The conversion recording shall not be filed until after the registration of conversion.
Protected tenancy status shall not be applicable to any eligible tenant until such time as the owner has filed his conversion recording. The protected tenancy status shall automatically apply as soon as a tenant receives notice of eligibility and the landlord files his conversion recording. The conversion recording shall not be filed until after the registration of conversion.
2A:18-61.29. Registration of conversion; approval after proof of notice of eligibility to tenants
2A:18-61.29. Registration of conversion; approval after proof of notice of eligibility to tenants
No registration of conversion shall be approved until the Department of Community Affairs receives proof that the administrative agency or officer has made determinations and notified all tenants who applied for protected tenancy status within the initial 60-day period of their eligibility or lack of eligibility. The proof shall be by affidavit or in such other form as the department may require.
The department may grant registrations of conversion for applications pending on the effective date of this amendatory and supplementary act upon the implementation of a procedure whereby any eligible tenant may make application for protected tenancy status in a manner comparable to that specified in sections 6 and 7 of this amendatory and supplementary act.
No registration of conversion shall be approved until the Department of Community Affairs receives proof that the administrative agency or officer has made determinations and notified all tenants who applied for protected tenancy status within the initial 60-day period of their eligibility or lack of eligibility. The proof shall be by affidavit or in such other form as the department may require.
The department may grant registrations of conversion for applications pending on the effective date of this amendatory and supplementary act upon the implementation of a procedure whereby any eligible tenant may make application for protected tenancy status in a manner comparable to that specified in sections 6 and 7 of this amendatory and supplementary act.
2A:18-61.28. Eligibility for protected tenancy status
2A:18-61.28. Eligibility for protected tenancy status
Within 30 days after receipt of an application for protected tenancy status by a tenant, the administrative agency or officer shall make a determination of eligibility. It shall send written notice of eligibility to each senior citizen tenant or disabled tenant who:
a. Applied therefor on or before the date of registration of conversion by the Department of Community Affairs; and
b. Qualifies as an eligible senior citizen tenant or disabled tenant pursuant to this amendatory and supplementary act; and
c. Has an annual household income that does not exceed an amount equal to three times the county per capita personal income, as last reported by the Department of Labor and Industry on the basis of the U.S. Department of Commerce's Bureau of Economic Analysis data, or $50,000.00, whichever is greater; and
d. Has occupied the premises as his principal residence for at least one year or has a lease on the premises for a period longer than one year.
The department shall adjust the county per capita personal income to be used in subsection c. of this section if there is a difference of one or more years between (1) the year in which the last reported county per capita personal income was based and (2) the last year in which the tenant's annual household income is based. The county per capita personal income shall be adjusted by the department by an amount equal to the number of years of the difference above times the average increase or decrease in the county per capita personal income for three years, including in the calculation the current year reported and the three immediately preceding years.
The administrative agency or officer shall likewise send a notice of denial with reasons to any tenant whom it determines to be ineligible. The owner shall be notified of those tenants who are determined to be eligible and ineligible.
The administrative agency or officer may require that the application include such documents and information as may be necessary to establish that the tenant is eligible for a protected tenancy status under the provisions of this amendatory and supplementary act and shall require such application to be submitted under oath. The Department of Community Affairs may by regulation adopt forms for application for protected tenancy status and notification of eligibility or ineligibility or adopt such other regulations for the procedure of determining eligibility as it determines are necessary.
Within 30 days after receipt of an application for protected tenancy status by a tenant, the administrative agency or officer shall make a determination of eligibility. It shall send written notice of eligibility to each senior citizen tenant or disabled tenant who:
a. Applied therefor on or before the date of registration of conversion by the Department of Community Affairs; and
b. Qualifies as an eligible senior citizen tenant or disabled tenant pursuant to this amendatory and supplementary act; and
c. Has an annual household income that does not exceed an amount equal to three times the county per capita personal income, as last reported by the Department of Labor and Industry on the basis of the U.S. Department of Commerce's Bureau of Economic Analysis data, or $50,000.00, whichever is greater; and
d. Has occupied the premises as his principal residence for at least one year or has a lease on the premises for a period longer than one year.
The department shall adjust the county per capita personal income to be used in subsection c. of this section if there is a difference of one or more years between (1) the year in which the last reported county per capita personal income was based and (2) the last year in which the tenant's annual household income is based. The county per capita personal income shall be adjusted by the department by an amount equal to the number of years of the difference above times the average increase or decrease in the county per capita personal income for three years, including in the calculation the current year reported and the three immediately preceding years.
The administrative agency or officer shall likewise send a notice of denial with reasons to any tenant whom it determines to be ineligible. The owner shall be notified of those tenants who are determined to be eligible and ineligible.
The administrative agency or officer may require that the application include such documents and information as may be necessary to establish that the tenant is eligible for a protected tenancy status under the provisions of this amendatory and supplementary act and shall require such application to be submitted under oath. The Department of Community Affairs may by regulation adopt forms for application for protected tenancy status and notification of eligibility or ineligibility or adopt such other regulations for the procedure of determining eligibility as it determines are necessary.
2A:18-61.27. Notice to tenants
2A:18-61.27. Notice to tenants
The owner of any building or structure who, after the effective date of this amendatory and supplementary act, seeks to convert any premises, shall, prior to his filing of the application for registration of conversion with the Department of Community Affairs, notify the administrative agency or officer responsible for administering this amendatory and supplementary act of his intention to so file. The owner shall supply the agency or officer with a list of every tenant residing in the premises, with stamped envelopes addressed to each tenant and with sufficient copies of the notice to tenants and application form for protected tenancy status. Within 10 days thereafter, the administrative agency or officer shall notify each residential tenant in writing of the owner's intention and of the applicability of the provisions of this amendatory and supplementary act and shall provide him with a written application form. The agency's or officer's notice shall be substantially in the following form:
"NOTICE
THE OWNER OF YOUR APARTMENT HAS NOTIFIED ............................................ (insert name of municipality) OF HIS INTENTION TO CONVERT TO A CONDOMINIUM OR COOPERATIVE. THE LEGISLATURE HAS PROVIDED THAT, IF YOU ARE A SENIOR CITIZEN, 62 YEARS OF AGE OR OLDER, OR DISABLED, YOU MAY BE ENTITLED TO A PROTECTED TENANCY PERIOD. PROTECTED TENANCY MEANS THAT YOU CANNOT BE EVICTED BECAUSE OF THE CONVERSION. YOU MAY BE ELIGIBLE:
(1) IF YOU ARE 62, OR WILL SOON BE 62, OR IF YOU ARE DISABLED; AND
(2) IF YOU HAVE LIVED IN YOUR APARTMENT FOR AT LEAST ONE YEAR OR IF THE LEASE ON YOUR APARTMENT IS FOR A PERIOD OF MORE THAN ONE YEAR; AND
(3) IF YOUR HOUSEHOLD INCOME IS LESS THAN ............................ (insert current income figure for county as established by Section 7c. of this amendatory and supplementary act).
IF YOU WISH THIS PROTECTION, SEND IN THE APPLICATION FORM BY .............................. (insert date 60 days after municipality's mailing) TO THE .............................. (insert name and address of administrative agency). FOR FURTHER INFORMATION CALL ................................... (insert phone number of administrative agency) OR .................................. (insert phone number of Department of Community Affairs).
IF YOU DO NOT APPLY YOU CAN BE EVICTED BY YOUR LANDLORD UPON PROPER NOTICE."
The Department of Community Affairs shall not accept any application for registration of conversion for any building or structure unless included in the application is proof that the agency or officer notified the tenants prior to the application for registration. The proof shall be by affidavit or in such other form as the department shall require.
The owner of any building or structure who, after the effective date of this amendatory and supplementary act, seeks to convert any premises, shall, prior to his filing of the application for registration of conversion with the Department of Community Affairs, notify the administrative agency or officer responsible for administering this amendatory and supplementary act of his intention to so file. The owner shall supply the agency or officer with a list of every tenant residing in the premises, with stamped envelopes addressed to each tenant and with sufficient copies of the notice to tenants and application form for protected tenancy status. Within 10 days thereafter, the administrative agency or officer shall notify each residential tenant in writing of the owner's intention and of the applicability of the provisions of this amendatory and supplementary act and shall provide him with a written application form. The agency's or officer's notice shall be substantially in the following form:
"NOTICE
THE OWNER OF YOUR APARTMENT HAS NOTIFIED ............................................ (insert name of municipality) OF HIS INTENTION TO CONVERT TO A CONDOMINIUM OR COOPERATIVE. THE LEGISLATURE HAS PROVIDED THAT, IF YOU ARE A SENIOR CITIZEN, 62 YEARS OF AGE OR OLDER, OR DISABLED, YOU MAY BE ENTITLED TO A PROTECTED TENANCY PERIOD. PROTECTED TENANCY MEANS THAT YOU CANNOT BE EVICTED BECAUSE OF THE CONVERSION. YOU MAY BE ELIGIBLE:
(1) IF YOU ARE 62, OR WILL SOON BE 62, OR IF YOU ARE DISABLED; AND
(2) IF YOU HAVE LIVED IN YOUR APARTMENT FOR AT LEAST ONE YEAR OR IF THE LEASE ON YOUR APARTMENT IS FOR A PERIOD OF MORE THAN ONE YEAR; AND
(3) IF YOUR HOUSEHOLD INCOME IS LESS THAN ............................ (insert current income figure for county as established by Section 7c. of this amendatory and supplementary act).
IF YOU WISH THIS PROTECTION, SEND IN THE APPLICATION FORM BY .............................. (insert date 60 days after municipality's mailing) TO THE .............................. (insert name and address of administrative agency). FOR FURTHER INFORMATION CALL ................................... (insert phone number of administrative agency) OR .................................. (insert phone number of Department of Community Affairs).
IF YOU DO NOT APPLY YOU CAN BE EVICTED BY YOUR LANDLORD UPON PROPER NOTICE."
The Department of Community Affairs shall not accept any application for registration of conversion for any building or structure unless included in the application is proof that the agency or officer notified the tenants prior to the application for registration. The proof shall be by affidavit or in such other form as the department shall require.
2A:18-61.26. Administrative agency
2A:18-61.26. Administrative agency
The governing body of the municipality may authorize a municipal board, agency or officer to act as its administrative agency for the purposes of this amendatory and supplementary act or may enter into a contractual agreement with a county office on aging or a similar agency to act as its administrative agency for purposes of this amendatory and supplementary act. In the absence of such authorization or contractual agreement, this amendatory and supplementary act shall be administered by a municipal board whose principal responsibility concerns the regulation of residential rents or, if no such board exists, by the municipal clerk.
The governing body of the municipality may authorize a municipal board, agency or officer to act as its administrative agency for the purposes of this amendatory and supplementary act or may enter into a contractual agreement with a county office on aging or a similar agency to act as its administrative agency for purposes of this amendatory and supplementary act. In the absence of such authorization or contractual agreement, this amendatory and supplementary act shall be administered by a municipal board whose principal responsibility concerns the regulation of residential rents or, if no such board exists, by the municipal clerk.
2A:18-61.25. Protected tenancy status; conversion of dwelling unit of eligible senior citizen or disabled tenant
2A:18-61.25. Protected tenancy status; conversion of dwelling unit of eligible senior citizen or disabled tenant
Each eligible senior citizen tenant or disabled tenant shall be granted a protected tenancy status with respect to his dwelling unit whenever the building or structure in which that unit is located shall be converted. The protected tenancy status shall be granted upon proper application and qualification pursuant to the provisions of this amendatory and supplementary act.
Each eligible senior citizen tenant or disabled tenant shall be granted a protected tenancy status with respect to his dwelling unit whenever the building or structure in which that unit is located shall be converted. The protected tenancy status shall be granted upon proper application and qualification pursuant to the provisions of this amendatory and supplementary act.
2A:18-61.24. Definitions
2A:18-61.24. Definitions
As used in this amendatory and supplementary act:
a. "Senior citizen tenant" means a person who is at least 62 years of age on the date of the conversion recording for the building or structure in which is located the dwelling unit of which he is a tenant, or the surviving spouse of such a person if the person should die after the owner files the conversion recording and the surviving spouse is at least 50 years of age at the time of the filing; provided that the building or structure has been the principal residence of the senior citizen tenant or the spouse for at least one year immediately preceding the conversion recording or the death or that the building or structure is the principal residence of the senior citizen tenant or the spouse under the terms of a lease for a period of more than one year, as the case may be;
b. "Disabled tenant" means a person who is, on the date of the conversion recording for the building or structure in which is located the dwelling unit of which he is a tenant, totally and permanently unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, including blindness, or a person who has been honorably discharged or released under honorable circumstances from active service in any branch of the United States Armed Forces and who is rated as having a 60% disability or higher as a result of that service pursuant to any federal law administered by the United States Veterans' Act; provided that the building or structure has been the principal residence of the disabled tenant for at least one year immediately preceding the conversion recording or that the building or structure is the principal residence of the disabled tenant under the terms of a lease for a period of more than one year. For the purposes of this subsection, "blindness" means central visual acuity of 20/200 or less in the better eye with the use of correcting lens. An eye which is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees shall be considered as having a central visual acuity of 20/200 or less;
c. "Tenant's annual household income" means the total income from all sources during the last full calendar year for all members of the household who reside in the dwelling unit at the time the tenant applies for protected tenant status, whether or not such income is subject to taxation by any taxing authority;
d. "Application for registration of conversion" means an application for registration filed with the Department of Community Affairs in accordance with "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.);
e. "Registration of conversion" means an approval of an application for registration by the Department of Community Affairs in accordance with "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.);
f. "Convert" means to convert one or more buildings or structures or a mobile home park containing in the aggregate not less than five dwelling units or mobile home sites or pads from residential rental use to condominium, cooperative, planned residential development or separable fee simple ownership of the dwelling units or of the mobile home sites or pads;
g. "Conversion recording" means the recording with the appropriate county officer of a master deed for condominium or a deed to a cooperative corporation for a cooperative or the first deed of sale to a purchaser of an individual unit for a planned residential development or separable fee simple ownership of the dwelling units;
h. "Protected tenancy period" means, except as otherwise provided in section 11 of this amendatory and supplementary act, the 40 years following the conversion recording for the building or structure in which is located the dwelling unit of the senior citizen tenant or disabled tenant.
As used in this amendatory and supplementary act:
a. "Senior citizen tenant" means a person who is at least 62 years of age on the date of the conversion recording for the building or structure in which is located the dwelling unit of which he is a tenant, or the surviving spouse of such a person if the person should die after the owner files the conversion recording and the surviving spouse is at least 50 years of age at the time of the filing; provided that the building or structure has been the principal residence of the senior citizen tenant or the spouse for at least one year immediately preceding the conversion recording or the death or that the building or structure is the principal residence of the senior citizen tenant or the spouse under the terms of a lease for a period of more than one year, as the case may be;
b. "Disabled tenant" means a person who is, on the date of the conversion recording for the building or structure in which is located the dwelling unit of which he is a tenant, totally and permanently unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, including blindness, or a person who has been honorably discharged or released under honorable circumstances from active service in any branch of the United States Armed Forces and who is rated as having a 60% disability or higher as a result of that service pursuant to any federal law administered by the United States Veterans' Act; provided that the building or structure has been the principal residence of the disabled tenant for at least one year immediately preceding the conversion recording or that the building or structure is the principal residence of the disabled tenant under the terms of a lease for a period of more than one year. For the purposes of this subsection, "blindness" means central visual acuity of 20/200 or less in the better eye with the use of correcting lens. An eye which is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees shall be considered as having a central visual acuity of 20/200 or less;
c. "Tenant's annual household income" means the total income from all sources during the last full calendar year for all members of the household who reside in the dwelling unit at the time the tenant applies for protected tenant status, whether or not such income is subject to taxation by any taxing authority;
d. "Application for registration of conversion" means an application for registration filed with the Department of Community Affairs in accordance with "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.);
e. "Registration of conversion" means an approval of an application for registration by the Department of Community Affairs in accordance with "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.);
f. "Convert" means to convert one or more buildings or structures or a mobile home park containing in the aggregate not less than five dwelling units or mobile home sites or pads from residential rental use to condominium, cooperative, planned residential development or separable fee simple ownership of the dwelling units or of the mobile home sites or pads;
g. "Conversion recording" means the recording with the appropriate county officer of a master deed for condominium or a deed to a cooperative corporation for a cooperative or the first deed of sale to a purchaser of an individual unit for a planned residential development or separable fee simple ownership of the dwelling units;
h. "Protected tenancy period" means, except as otherwise provided in section 11 of this amendatory and supplementary act, the 40 years following the conversion recording for the building or structure in which is located the dwelling unit of the senior citizen tenant or disabled tenant.
2A:18-61.23. Legislative findings and declarations
2A:18-61.23. Legislative findings and declarations
The Legislature finds that research studies have demonstrated that the forced eviction and relocation of elderly persons from their established homes and communities harm the mental and physical health of these senior citizens, and that these disruptions in the lives of older persons affect adversely the social, economic and cultural characteristics of communities of the State, and increase the costs borne by all State citizens in providing for their public health, safety and welfare. These conditions are particularly serious in light of the rising costs of home ownership, and are of increasing concern where rental housing is converted into condominiums or cooperatives which senior citizens on fixed limited incomes cannot afford, an occurrence which is becoming more and more frequent in this State under prevailing economic circumstances. The Legislature, therefore, declares that it is in the public interest of the State to avoid the forced eviction and relocation of senior citizen tenants wherever possible, specifically in those instances where rental housing market conditions and particular financial circumstances combine to diminish the ability of senior citizens to obtain satisfactory comparable housing within their established communities, and where the eviction action is the result not of any failure of the senior citizen tenant to abide by the terms of a lease or rental agreement, but of the owner's decision advantageously to dispose of residential property through the device of conversion to a condominium or cooperative.
The Legislature further finds that it is in the public interest of the State to avoid the forced eviction and the displacement of the handicapped wherever possible because of their limited mobility and the limited number of housing units which are suitable for their needs.
The Legislature further declares that in the service of this public interest it is appropriate that qualified senior citizen tenants and disabled tenants be accorded a period of protected tenancy, during which they shall be entitled to the fair enjoyment of the dwelling unit within the converted residential structure, to continue for such time, up to 40 years, as the conditions and circumstances which make necessary such protected tenancy shall continue.
The Legislature further finds that the promotion of this public interest is possible only if senior citizen tenants and disabled tenants are protected during this period from alterations in the terms of the tenancy or rent increases which are the result solely of an owner's decision to convert.
The Legislature finds that research studies have demonstrated that the forced eviction and relocation of elderly persons from their established homes and communities harm the mental and physical health of these senior citizens, and that these disruptions in the lives of older persons affect adversely the social, economic and cultural characteristics of communities of the State, and increase the costs borne by all State citizens in providing for their public health, safety and welfare. These conditions are particularly serious in light of the rising costs of home ownership, and are of increasing concern where rental housing is converted into condominiums or cooperatives which senior citizens on fixed limited incomes cannot afford, an occurrence which is becoming more and more frequent in this State under prevailing economic circumstances. The Legislature, therefore, declares that it is in the public interest of the State to avoid the forced eviction and relocation of senior citizen tenants wherever possible, specifically in those instances where rental housing market conditions and particular financial circumstances combine to diminish the ability of senior citizens to obtain satisfactory comparable housing within their established communities, and where the eviction action is the result not of any failure of the senior citizen tenant to abide by the terms of a lease or rental agreement, but of the owner's decision advantageously to dispose of residential property through the device of conversion to a condominium or cooperative.
The Legislature further finds that it is in the public interest of the State to avoid the forced eviction and the displacement of the handicapped wherever possible because of their limited mobility and the limited number of housing units which are suitable for their needs.
The Legislature further declares that in the service of this public interest it is appropriate that qualified senior citizen tenants and disabled tenants be accorded a period of protected tenancy, during which they shall be entitled to the fair enjoyment of the dwelling unit within the converted residential structure, to continue for such time, up to 40 years, as the conditions and circumstances which make necessary such protected tenancy shall continue.
The Legislature further finds that the promotion of this public interest is possible only if senior citizen tenants and disabled tenants are protected during this period from alterations in the terms of the tenancy or rent increases which are the result solely of an owner's decision to convert.
2A:18-61.22. Short title This amendatory and supplementary act shall be known and may be cited as the "Senior Citizens and Disabled Protected T
2A:18-61.22. Short title
This amendatory and supplementary act shall be known and may be cited as the "Senior Citizens and Disabled Protected Tenancy Act."
This amendatory and supplementary act shall be known and may be cited as the "Senior Citizens and Disabled Protected Tenancy Act."
2A:18-61.16a. Rent defined
2A:18-61.16a. Rent defined
"Rent" means the amount currently payable by the tenant to the landlord pursuant to lease or other agreement, without regard to any modification thereof by any authorized board or agency, or any court.
"Rent" means the amount currently payable by the tenant to the landlord pursuant to lease or other agreement, without regard to any modification thereof by any authorized board or agency, or any court.
2A:18-61.12. Rules and regulations
2A:18-61.12. Rules and regulations
In accordance with the "Administrative Procedure Act" (P.L.1968, c. 410, C. 52:14B-1 et seq.), the Department of Community Affairs shall adopt rules and regulations setting forth procedures required to be followed by landlords in providing tenants a reasonable opportunity to examine and rent comparable housing and setting forth procedures and content for information required to be disclosed to tenants regarding such procedures, the rights and responsibilities of tenants under this act, and the plans and proposals of landlords which may affect any tenant in order to maximize tenants' ability to exercise rights provided under this act. Any rules and regulations adopted under this section shall only be applicable to tenants and owners of a building or mobile home park which is being, or is about to be converted from the rental market to a condominium, cooperative or to fee simple ownership of the several dwelling units or park sites, or to any mobile home park being permanently retired from the rental market.
In accordance with the "Administrative Procedure Act" (P.L.1968, c. 410, C. 52:14B-1 et seq.), the Department of Community Affairs shall adopt rules and regulations setting forth procedures required to be followed by landlords in providing tenants a reasonable opportunity to examine and rent comparable housing and setting forth procedures and content for information required to be disclosed to tenants regarding such procedures, the rights and responsibilities of tenants under this act, and the plans and proposals of landlords which may affect any tenant in order to maximize tenants' ability to exercise rights provided under this act. Any rules and regulations adopted under this section shall only be applicable to tenants and owners of a building or mobile home park which is being, or is about to be converted from the rental market to a condominium, cooperative or to fee simple ownership of the several dwelling units or park sites, or to any mobile home park being permanently retired from the rental market.
2A:18-61.12. Rules and regulations
2A:18-61.12. Rules and regulations
In accordance with the "Administrative Procedure Act" (P.L.1968, c. 410, C. 52:14B-1 et seq.), the Department of Community Affairs shall adopt rules and regulations setting forth procedures required to be followed by landlords in providing tenants a reasonable opportunity to examine and rent comparable housing and setting forth procedures and content for information required to be disclosed to tenants regarding such procedures, the rights and responsibilities of tenants under this act, and the plans and proposals of landlords which may affect any tenant in order to maximize tenants' ability to exercise rights provided under this act. Any rules and regulations adopted under this section shall only be applicable to tenants and owners of a building or mobile home park which is being, or is about to be converted from the rental market to a condominium, cooperative or to fee simple ownership of the several dwelling units or park sites, or to any mobile home park being permanently retired from the rental market.
In accordance with the "Administrative Procedure Act" (P.L.1968, c. 410, C. 52:14B-1 et seq.), the Department of Community Affairs shall adopt rules and regulations setting forth procedures required to be followed by landlords in providing tenants a reasonable opportunity to examine and rent comparable housing and setting forth procedures and content for information required to be disclosed to tenants regarding such procedures, the rights and responsibilities of tenants under this act, and the plans and proposals of landlords which may affect any tenant in order to maximize tenants' ability to exercise rights provided under this act. Any rules and regulations adopted under this section shall only be applicable to tenants and owners of a building or mobile home park which is being, or is about to be converted from the rental market to a condominium, cooperative or to fee simple ownership of the several dwelling units or park sites, or to any mobile home park being permanently retired from the rental market.
2A:18-61.11. Comparable housing; offer of rental; stay of eviction; alternative compensation; senior citizens and disabled protected tenancy perio
2A:18-61.11. Comparable housing; offer of rental; stay of eviction; alternative compensation; senior citizens and disabled protected tenancy period
a. Tenants receiving notice under section 3 g. of P.L.1974, c. 49 may request of the landlord within 18 full months after receipt of such notice, and the landlord shall offer to the tenant, personally or through an agent, the rental of comparable housing or park site and a reasonable opportunity to examine and rent such comparable housing or park site. In any proceeding under subsection 2 k. of P.L.1974, c. 49 instituted following the expiration of notice required under section 3 g. of P.L.1974, c. 49, the owner shall prove that a tenant was offered such comparable housing or park site and provided such reasonable opportunity to examine and rent such housing or park site as requested pursuant to this section. The court shall authorize 1-year stays of eviction with reasonable rent increases until such time as the court is satisfied that the tenant has been offered comparable housing or park site and provided a reasonable opportunity to examine and rent such housing or park site as requested pursuant to this section. However, in no case shall more than five such stays be granted.
b. The court shall automatically renew any 1-year stay of eviction in any case where the landlord failed to allege to the court within 1 year of a prior stay that the tenant was offered a reasonable opportunity to examine and rent comparable housing or park site within such prior year.
c. However the court shall not authorize any further stays at any time after one such stay has been authorized when the owner has also provided a tenant with hardship relocation compensation of waiver of payment of 5 months' rent.
d. On or after the effective date of the "Senior Citizens and Disabled Protected Tenancy Act," P.L. [1981], c. [226] (C. [2A:18-61.22 et seq.] ), notwithstanding the provisions of subsection a. of this section, where the court has jurisdiction pursuant to that subsection, whether by virtue of the authorization by the court of a stay of eviction or by virtue of any other proceedings required or instituted pursuant to P.L.1974, c. 49 (C. 2A:18-61.1 et seq.) or P.L.1975, c. 311 (C. 2A:18-61.6 et seq.), or in any action for declaratory judgment, the court may invoke some or all of the provisions of the "Senior Citizens and Disabled Protected Tenancy Act" and grant to a tenant, pursuant to that amendatory and supplementary act, a protected tenancy period upon the court's determination that:
(1) The tenant would otherwise qualify as a senior citizen tenant or disabled tenant pursuant to that amendatory and supplementary act, except that the building or structure in which the dwelling unit is located was converted prior to the effective date of that amendatory and supplementary act; and
(2) The granting of the protected tenancy period as applied to the tenant, giving particular consideration to whether a unit was sold on or before the date that the amendatory and supplementary act takes effect to a bona fide individual purchaser who intended personally to occupy the unit, would not be violative of concepts of fundamental fairness or due process. Where a court declines to grant a protected tenancy status, it shall nevertheless order such hardships stays as authorized by subsections a. and b. of this section until comparable relocation housing is provided. The hardship relocation compensation alternative of subsection c. of this section shall not be applicable in this situation.
a. Tenants receiving notice under section 3 g. of P.L.1974, c. 49 may request of the landlord within 18 full months after receipt of such notice, and the landlord shall offer to the tenant, personally or through an agent, the rental of comparable housing or park site and a reasonable opportunity to examine and rent such comparable housing or park site. In any proceeding under subsection 2 k. of P.L.1974, c. 49 instituted following the expiration of notice required under section 3 g. of P.L.1974, c. 49, the owner shall prove that a tenant was offered such comparable housing or park site and provided such reasonable opportunity to examine and rent such housing or park site as requested pursuant to this section. The court shall authorize 1-year stays of eviction with reasonable rent increases until such time as the court is satisfied that the tenant has been offered comparable housing or park site and provided a reasonable opportunity to examine and rent such housing or park site as requested pursuant to this section. However, in no case shall more than five such stays be granted.
b. The court shall automatically renew any 1-year stay of eviction in any case where the landlord failed to allege to the court within 1 year of a prior stay that the tenant was offered a reasonable opportunity to examine and rent comparable housing or park site within such prior year.
c. However the court shall not authorize any further stays at any time after one such stay has been authorized when the owner has also provided a tenant with hardship relocation compensation of waiver of payment of 5 months' rent.
d. On or after the effective date of the "Senior Citizens and Disabled Protected Tenancy Act," P.L. [1981], c. [226] (C. [2A:18-61.22 et seq.] ), notwithstanding the provisions of subsection a. of this section, where the court has jurisdiction pursuant to that subsection, whether by virtue of the authorization by the court of a stay of eviction or by virtue of any other proceedings required or instituted pursuant to P.L.1974, c. 49 (C. 2A:18-61.1 et seq.) or P.L.1975, c. 311 (C. 2A:18-61.6 et seq.), or in any action for declaratory judgment, the court may invoke some or all of the provisions of the "Senior Citizens and Disabled Protected Tenancy Act" and grant to a tenant, pursuant to that amendatory and supplementary act, a protected tenancy period upon the court's determination that:
(1) The tenant would otherwise qualify as a senior citizen tenant or disabled tenant pursuant to that amendatory and supplementary act, except that the building or structure in which the dwelling unit is located was converted prior to the effective date of that amendatory and supplementary act; and
(2) The granting of the protected tenancy period as applied to the tenant, giving particular consideration to whether a unit was sold on or before the date that the amendatory and supplementary act takes effect to a bona fide individual purchaser who intended personally to occupy the unit, would not be violative of concepts of fundamental fairness or due process. Where a court declines to grant a protected tenancy status, it shall nevertheless order such hardships stays as authorized by subsections a. and b. of this section until comparable relocation housing is provided. The hardship relocation compensation alternative of subsection c. of this section shall not be applicable in this situation.
2A:18-61.10. Removal of tenant to allow conversion to cooperative or condominium; moving expense compensation
2A:18-61.10. Removal of tenant to allow conversion to cooperative or condominium; moving expense compensation
Any tenant receiving notice under section 3 g. of P.L.1974, c. 49 who is not evicted for any cause under this act other than under section 3 g. shall receive from the owner moving expense compensation of waiver of payment of 1 month's rent.
Any tenant receiving notice under section 3 g. of P.L.1974, c. 49 who is not evicted for any cause under this act other than under section 3 g. shall receive from the owner moving expense compensation of waiver of payment of 1 month's rent.
2A:18-61.9. Notice to tenant after master deed or agreement to establish cooperative
2A:18-61.9. Notice to tenant after master deed or agreement to establish cooperative
Any owner who establishes with a person an initial tenancy after the master deed or agreement establishing the cooperative was recorded shall provide to such person at the time of applying for tenancy and at the time of establishing any rental agreement a separate written statement as follows:
"STATEMENT
THIS BUILDING (PARK) IS BEING CONVERTED TO OR IS A CONDOMINIUM OR COOPERATIVE (OR FEE SIMPLE OWNERSHIP OF THE SEVERAL DWELLING UNITS OR PARK SITES). YOUR TENANCY CAN BE TERMINATED UPON 60 DAYS' NOTICE IF YOUR APARTMENT (PARK SITE) IS SOLD TO A BUYER WHO SEEKS TO PERSONALLY OCCUPY IT. IF YOU MOVE OUT AS A RESULT OF RECEIVING SUCH A NOTICE, AND THE LANDLORD ARBITRARILY FAILS TO COMPLETE THE SALE, THE LANDLORD SHALL BE LIABLE FOR TREBLE DAMAGES AND COURT COSTS."
The parenthesized words shall be omitted or substituted for preceding words where appropriate. Such statement shall also be reproduced as the first clause in any written lease provided to such person.
Any owner who establishes with a person an initial tenancy after the master deed or agreement establishing the cooperative was recorded shall provide to such person at the time of applying for tenancy and at the time of establishing any rental agreement a separate written statement as follows:
"STATEMENT
THIS BUILDING (PARK) IS BEING CONVERTED TO OR IS A CONDOMINIUM OR COOPERATIVE (OR FEE SIMPLE OWNERSHIP OF THE SEVERAL DWELLING UNITS OR PARK SITES). YOUR TENANCY CAN BE TERMINATED UPON 60 DAYS' NOTICE IF YOUR APARTMENT (PARK SITE) IS SOLD TO A BUYER WHO SEEKS TO PERSONALLY OCCUPY IT. IF YOU MOVE OUT AS A RESULT OF RECEIVING SUCH A NOTICE, AND THE LANDLORD ARBITRARILY FAILS TO COMPLETE THE SALE, THE LANDLORD SHALL BE LIABLE FOR TREBLE DAMAGES AND COURT COSTS."
The parenthesized words shall be omitted or substituted for preceding words where appropriate. Such statement shall also be reproduced as the first clause in any written lease provided to such person.
2A:18-61.8. Conversion of multiple dwelling into condominium, cooperative or fee simple ownership; notice to and rights to tenants
2A:18-61.8. Conversion of multiple dwelling into condominium, cooperative or fee simple ownership; notice to and rights to tenants
Any owner who intends to convert a multiple dwelling as defined in P.L.1967, c. 76 (C. 55:13A-1 et seq.), other than a hotel or motel, or a mobile home park into a condominium or cooperative, or to fee simple ownership of the several dwelling units or park sites shall give the tenants 60 days' notice of his intention to convert and the full plan of the conversion prior to serving notice, provided for in section 3 of P.L.1974, c. 49 (C. 2A:18-61.2). A duplicate of the first such 60-day notice and full plan shall be transmitted to the clerk of the municipality at the same time. In the notice of intention to convert tenants shall be notified of their right to purchase ownership in the premises at a specified price in accordance with this section, and their other rights as tenants under this act in relation to the conversion of a building or park to a condominium, cooperative or fee simple ownership. A tenant in occupancy at the time of the notice of intention to convert shall have the exclusive right to purchase his unit, the shares of stock allocated thereto or the park site, as the case may be, for the first 90 days after such notice that such purchase could be made during which time the unit or site shall not be shown to a third party unless the tenant has in writing waived the right to purchase.
Any owner who intends to convert a multiple dwelling as defined in P.L.1967, c. 76 (C. 55:13A-1 et seq.), other than a hotel or motel, or a mobile home park into a condominium or cooperative, or to fee simple ownership of the several dwelling units or park sites shall give the tenants 60 days' notice of his intention to convert and the full plan of the conversion prior to serving notice, provided for in section 3 of P.L.1974, c. 49 (C. 2A:18-61.2). A duplicate of the first such 60-day notice and full plan shall be transmitted to the clerk of the municipality at the same time. In the notice of intention to convert tenants shall be notified of their right to purchase ownership in the premises at a specified price in accordance with this section, and their other rights as tenants under this act in relation to the conversion of a building or park to a condominium, cooperative or fee simple ownership. A tenant in occupancy at the time of the notice of intention to convert shall have the exclusive right to purchase his unit, the shares of stock allocated thereto or the park site, as the case may be, for the first 90 days after such notice that such purchase could be made during which time the unit or site shall not be shown to a third party unless the tenant has in writing waived the right to purchase.
Subscribe to:
Posts (Atom)