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SUBCHAPTER 3-x - DISTRAINTS

By Renee Crawford,2014-05-07 11:01
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SUBCHAPTER 3-x - DISTRAINTS

SUBCHAPTER 3-x - DISTRAINTS

    LT:3-x.1. Definitions

     For purposes of this Subchapter:

     Enforcement officer” means a sheriff or a special civil part officer.

     “Distraint” means the seizure and sale by a landlord of a tenant’s personal property to

    satisfy arrears of rent in accordance with this Subchapter.

    “Landlord” means a person who leases real property to another and either owns or has the

    rights of an owner to that property, including (i) a legal entity or representative who acquires or

    succeeds to the rights of the landlord, (ii) a landlord or lessor pursuant to a sublease, and (iii) a

    “landlord’s agent” as defined below.

    “Landlord’s agent” means a person, designated by and acting on behalf of a landlord, to whom rent has been entrusted or who is seeking to distrain for rent on the landlord’s behalf and with the landlord’s authorization.

     “Personal property” or “property” means tangible, movable property, such as goods and chattels.

     “Rent” means consideration paid by a tenant to a landlord for rental premises, but may

    include additional expenses agreed to by the landlord and tenant that do not violate the law.

     “Rental premises” or “premises” means real property used or occupied by a tenant in accordance with a written or oral lease and may include one or more rental units as well as areas

    to be used in common with other tenants.

     Source: New

    LT:3-x.2. Property subject to distraint

    A landlord may distrain personal property and growing crops belonging to a tenant in or

    upon nonresidential rental premises, except clothing.

    Source: 2A:33-1; 2A:33-2; 2A:33-3; 2A:33-6.

    LT:3-x.3. Time limitations on right to distrain

    a. A landlord may distrain property for rent due within the six months immediately

    preceding the distraint.

    b. If the tenant vacates the rental premises, the distraint shall be made within 30 days

    after the tenant vacates.

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    Source: 2A:33-7; 2A:33-8.

    LT:3-x.4. Procedure for seeking distraint; order to show cause

    a. A landlord shall not be required to seek judicial approval to distrain property of a tenant that expressly waives due process rights with regard to the property. The waiver may be

    made in a written lease or other writing signed by the tenant.

    b. If subsection a. does not apply, a landlord seeking to distrain a tenant’s property shall:

    (1) proceed in the Superior Court, prior to seizing the property, by an order to show cause supported by verified complaint or affidavit in accordance with the Rules Governing the Courts

    of the State of New Jersey. On the return date of the order to show cause, the court shall, in

    accordance with this Subchapter, authorize the distraint and determine the property to be seized

    and impounded, or grant such other emergent relief as is fair and equitable to the parties, pending

    a final hearing; or

    (2) seize a tenant’s property without seeking prior judicial approval, only in the

    extraordinary case where the landlord reasonably believes that the tenant is likely to remove or

    destroy the property before a court order can be obtained. The landlord shall provide notice of

    the seizure to the tenant as service of process would be made upon the tenant in accordance with

    the Rules Governing the Courts of the State of New Jersey. Upon the tenant’s request, the court,

    within 10 days after seizure, shall hold a hearing to determine whether an order allowing the

    landlord to continue to hold the seized property should be entered.

    Source: See Callen v. Sherman’s, Inc., 92 N.J. 114 (1983); 2A:33-5; 2A:33-9.

    LT:3-x.5. Impound and inventory of distrained property; up to $500 exemption

    a. Property that is distrained by court order shall be impounded by an enforcement officer in the county where the rental premises is located. Property that is distrained before or without

    court action in accordance with LT:3-x.4, shall be impounded by the landlord.

    b. Property shall be impounded either by padlocking the rental premises or otherwise securing the property in a location within the same county that is most convenient for that

    purpose. All distrained property seized at one time shall be impounded together unless otherwise

    ordered by a court.

    c. Immediately after impound, the landlord shall request that the enforcement officer prepare an inventory of the items of property, including an evaluation of each item inventoried.

    The value of an item shall be the price judged to be that for which the item would be sold at

    public sale. The enforcement officer shall provide copies of the inventory to the landlord, tenant

    and their counsel, if any. The tenant may make a written request directly to the enforcement

    officer for the property to be inventoried and evaluated if the landlord fails to do so within two

    days.

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    d. From the inventory, the tenant, or in the tenant’s absence or if the tenant fails to do so

    within 10 days after the inventory is taken, the tenant’s attorney, family member, or the

    enforcement office on behalf of the tenant, shall select property valued at $500. The selected

    property shall be exempt from sale and returned to the tenant or the tenant’s family immediately.

    Source: 2A:33-2; 2A:33-9; 2A:33-11; 2A:33-12; 2A:33-13.

    LT:3-x.6. Sale of remaining distrained property

    a. Property remaining after the tenant’s selection in accordance with LT:3-x.5 shall be

    sold by any method specified in a court order or agreed upon by the landlord and tenant.

    b. In the absence of an order or agreement, the property shall be sold as follows:

    (1) the property having a readily ascertainable current value and normally sold in an

    established public market shall be sold in that market;

    (2) all other property shall be sold by auction, pursuant to provisions governing public

    sales.

    c. The price to be set for the distrained property shall include the rent arrears and the

    reasonable charges of the impounding, appraisal, sale and disposition of the property.

    Source: New.

    LT:3-x.7. Third parties to enter property

    Anyone viewing, appraising, buying or removing the impounded property on behalf of a

    prospective purchaser of such property may enter the premises where the property is impounded

    for such purpose.

    Source: 2A:33-11.

    LT:3-x.8. Reasonable charges deducted from proceeds; overage returned; further

    distraints permitted

    a. Upon the sale of the distrained property, the proceeds shall be applied as follows:

    (1) the reasonable charges of the impounding, appraisal and sale shall be deducted by the

    enforcement officer;

    (2) the landlord shall be paid the amount of rent due as determined by the court, or as

    agreed to by the landlord and the tenant, subject to the limitation prescribed by LT:3x.3;

    (3) any lienholder determined by a court to be entitled to reimbursement from the sale of

    the distrained property shall be paid the amount of that person’s lien; and

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    (4) any overage shall be returned to the tenant.

    b. If the value of the property distrained does not satisfy the full value of the rent arrears, further distraints may be made for the remainder that is due in a manner and within the

    limitations provided by this Subchapter and approved by the court.

    Source: 2A:33-5; 2A:33-10; 2A:33-15.

    LT:3-x.9. Objection to sale; claim of interest in distrained property

    Any person other than a landlord or tenant who claims an interest in distrained property or who objects to the sale or other disposition of distrained property may file a written objection

    to the sale or disposition with the Clerk of the Court which issued the order pursuant to LT:3-x.6

    and deliver a copy of the objection to the enforcement officer. The Clerk shall notify the

    enforcement officer, the tenant, the landlord, and the parties’ attorneys, if any, of any objections

    that have been received to the sale or other disposition. Upon receipt of notification of the

    objections, the enforcement officer shall not sell or dispose of the property until further order of

    the court.

     Source: New.

    LT:3-x.10. Fees for enforcement officers, appraisers

    Enforcement officers and appraisers that aid in the execution of this Subchapter shall be entitled to the fees provided for in Title 22, Fees and Costs, of the Revised Statutes.

    Source: 2A:33-14.

    LT:3-x.11. Damages against distraining party; recovery of costs for successful defendant

    a. An aggrieved party shall be entitled to recover against a distraining party:

    (1) twice the value of the property seized and sold, together with the costs of any action, if the property is distrained for rent not in fact due.

    (2) special damages, together with the costs of any action, if the property is distrained for rent that is in fact due but thereafter the distraining party or that party’s agent commits an

    irregularity or unlawful act.

    b. In any action to recover damages for an alleged wrongful distress or wrongful act after distraint, or to set aside a distraint, a successful defendant shall be entitled to recover double

    costs.

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    Source: 2A:33-17; 2A:33-18; 2A:33-19.

    LT:3-x.12. Damages for removing distrained property already impounded

    A person who is injured by removal of distrained property from the place where the property is impounded may recover treble damages and the costs of any action from a person

    who, with notice of the distraint, either removes the distrained property, or comes to use or

    possess the distrained property.

    Source: 2A:33-16.

    LT:3-x.13. Damages against tenant

    A landlord shall be entitled to recover actual damages resulting from the actions of a tenant who, with the intent to delay, hinder or defraud the landlord, removes or conceals property

    subject to distraint. If the landlord can demonstrate that the tenant’s actions were willful, the

    landlord shall be entitled to recover double damages against the tenant.

    Source: 2A:33-21.

    LT:3-x.14. Seizure of property locked up; breaking and entering

    In order to distrain property in accordance with this Subchapter, an enforcement officer, in accordance with a court order, may break open and enter during the hours of 8:00 a.m. to 6:00

    p.m. a locked or otherwise secured location where property has been placed by a tenant to

    prevent its distraint. If the place where the property is secured is a residence, the landlord, by

    sworn testimony in court, must first demonstrate the existence of a reasonable ground to suspect

    that the property is located at the residence.

    Source: 2A:33-22.

    LT:3-x.15. Remedy where rent apportionable

    Any person entitled to a portion of the rent that is apportionable between successive landlords shall be entitled to distrain for the portion as if entitled to receive the full amount. The

    full amount shall not exceed the six month rent arrears.

    Source: 2A:33-23.

    LT:3-x.16. Reclaiming seized property

     A tenant may apply to the court to reclaim seized property that has not been sold if the

    property has been seized in violation of this Subchapter or is otherwise wrongly seized.

    Reclaimed property may not be used to satisfy rent arrears.

     Source: New.

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