Daily Development for Wednesday, October 18, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

LANDLORD/TENANT; RESIDENTIAL; EVICTIONS; DUE PROCESS: Court forms permitting the landlord to demand as “rent” for purposes of the tenant avoiding eviction sums that are not collectible under New Jersey law for such purposes may be a violation of the Due Process Clause.  Hodges v. Feinstein, Raiss, Kelin & Booker, LLC, 383 N.J. Super. 596, 893 A.2d 21 (App. Div. 2006), discussed under the heading: “Landlord/Tenant; Residential; Eviction; Fair Debt Collection Act.”

Two tenants receiving Section 8 housing assistance from the U.S. Department of Housing and Urban Development fell behind on their rent payments on multiple occasions.  The leases provided that in addition to rent, the tenants were responsible for "additional rent" such as attorneys fees, late charges, and court costs.  The landlord, through its attorneys, filed numerous summary dispossess actions to evict the tenants from the apartments.  The summary dispossess actions listed all amounts due, including rent and "additional rent."  However, the complaints categorized all amounts due simply as "rent."  Before final judgment was entered on the eviction actions, the tenants paid the full amounts listed as due.  Nothing in the summonses or complaints indicated the tenants only had to pay "rent" and not the "additional rent" to avoid eviction.

It appears that the tenants should not have been required to pay the “additional rent” to avoid eviction, but only the actual space rent, although the court does not make clear whether this was due to the fact that they were federally assisted tenants or whether they were protected by New Jersey law, which is very favorable to residential tenants. 

The court reviewed the case primarily on other grounds (see “Landlord/Tenant; Residential; Eviction; Fair Debt Collection Act”).  But in doing so, the court suggested that there was a potential violation of the Due Process Clause requirement of notice for a court to use a form summons in a dispossession action  that did not differentiate between amounts that had to be paid to avoid eviction and sums that, although owed, were not conditions to continued possession. 

The court was quite unclear about whether the alleged violation of Due Process rights was carried out by the attorneys, who harrassed the tenants for payment of the whole amount as a condition to avoid eviction, or by the courts.  It would be difficult to make out a case that the attorneys’ demand was “state action,” although arguably an abuse of process claim might be made out.   But the court seemed to be of the view that the pleadings themselves constituted unconstitutional state action. 

Was the faulty notice in the forms themselves?  The court suggested that this was the case.  But it appears that the forms merely permitted inappropriate demands, rather than required them.

“In our view, the complaints served on this plaintiffs do not provide adequate notice because they do not clearly distinguish between the amount the tenant must pay to avoid eviction and the extraneous charges due and owing under the lease.  We, therefore, refer this matter to the supreme Court Civil Practice Committee for consideration of possible amendments to the rules of practice and review of the forms currently included in the appendix to the New Jersey Court Rules.”

Comment: If, as appears to be the case, the forms approved by the court permitted, but did not require, attorneys to make inappropriate demands in eviction complaints, the editor is hard pressed to understand how a Constitutional Due Process violation can be made out.  Surely if the simple filing of a complaint in court would trigger “state action,” then all attempts to enforce private rights would be subject to Constitutional  scrutiny.   Of course, there have been a few cases to suggest that any use of the courts to enforce an objective that would violate constitutional rights if done by a public agency is itself a breach of the Constitution.  The leading case is Shelley v. Kramer.  Some state courts have applied Shelley in other contexts, including Equal Protection.  But mainstream constitutional theorists, as the editor understands things, still view Shelley as sui generis on the point, and don’t believe that it portends a complete subordination of all judicial enforceme!

 nt of
private rights to the Constitution.  

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