Dorian Bernard was dragged to court multiple times as his landlord tried to evict him from the Irvington, New Jersey, apartment where he grew up with his family. After connecting with a legal aid group, he learned that his landlord's complaints should have been dismissed based on legally deficient court filings, a problem a recent study concluded is rampant in the state. (Courtesy of Dorian Bernard)
Dorian Bernard remembers his family's old apartment in Irvington, New Jersey, fondly.
The neighborhood was a quiet and close-knit one where he would frequently run into friends he knew from high school when he came back to visit. Growing up there with his brothers, he remembers awards and other keepsakes his mother and father used to display, giving it an atmosphere that was charming, though a little dated, according to Bernard.
"It was a typical old person's apartment," Bernard remembered with a laugh.
Bernard, a former Marine turned event photographer, had settled down in Florida, but after his mother was diagnosed with blood cancer and his father, at the same time, suffered from kidney failure, the Irvington apartment became his home again as he moved back in 2014 in to take care of them.
He didn't know it at the time, but a brewing legal fight for that apartment, his and his family's home for nearly three decades, would take Bernard in and out of New Jersey's landlord-tenant courts multiple times over the next several years, through the heart of a system that advocates say is plagued by legally deficient eviction filings that judges nonetheless allow to move forward.
About seven years after Bernard moved back to Irvington, the COVID-19 pandemic took his parents and wiped out his savings as the event photography business ground to a halt. Meanwhile, his parents' building changed hands when its previous owner, a sorority sister of Bernard's mother, died, Bernard said.
In January 2023, the new landlord's eviction campaign began.
While Bernard's rent was partly covered under a housing voucher for veterans issued by the New Jersey Department of Community Affairs, the new landlord claimed he was underpaying and turned to the courts to try to force him out.
Bernard was able to fight off the complaint on his own by showing a letter from DCA stating that his housing voucher capped the rent on his unit. But when the landlord immediately filed a second, Bernard sought help at the Housing Justice Project, a joint effort of Rutgers Law School and Seton Hall Law School.
With the help of Diane Smith, the program's former managing attorney, now retired, Bernard took the second complaint to trial and defeated the eviction attempt in December 2023.
The stakes were high, according to Bernard.
"If I didn't have Diane, I would have been homeless on the street, because I had nowhere to go," Bernard said.
But according to Smith, neither of the complaints, nor a third one which was filed immediately after the second one was dismissed, should ever have gone forward in the first place because they were missing legally required documents and notices.
For example, the legal owner of the property was not the named plaintiff in the suits. Instead, it was the owner's husband, Smith said. The landlord also did not follow proper rules around rent control and did not give proper notice for previous attempted rent increases, according to Smith.
Those deficiencies should have been enough for the eviction complaints to be dismissed early on, Smith said, but recent research has found that Bernard's case is just one of tens of thousands across New Jersey in which legally deficient filings go unchecked.
An estimated 29,000 tenants or families of tenants are evicted in New Jersey every year in cases that should have been dismissed based on legally deficient complaints, according to an October report by the Housing Justice Project, Smith's organization, as well as Lowenstein Sandler LLP's Lowenstein Center for the Public Interest and Volunteer Lawyers for Justice.
Housing advocates in New Jersey have long suspected that situations like Bernard's are common, but as 97% of tenants in landlord-tenant court in New Jersey go unrepresented, it has been difficult to quantify how widespread deficient eviction filings are.
The report, "Unjustified Residential Evictions in New Jersey," backs up that suspicion with numbers.
Analyzing nearly 1,400 eviction cases pulled from public records across the state, researchers found that 69% of them had at least one deficiency and 15% had three or more deficiencies. The court issued a deficiency notice in just 11% of cases where a landlord filed a deficient eviction complaint, and in 23% of those cases, the court ultimately entered an eviction judgment or default even though the deficiency was never fully resolved.
A spokesman for the judiciary challenged the report's findings in a statement to Law360, saying that the courts' own review of the coalition's data set found deficiencies in less than 10% of cases.
"The Administrative Office is conducting its own study, using a larger sample size, to assess the level of landlord compliance with court rules and procedures, and we will continue to work with advocates on both sides to find additional ways to improve the way residential eviction complaints are handled by the courts," he said.
Catherine Weiss, former chair of the Lowenstein Center for the Public Interest, said deficiencies matter because proceedings in landlord-tenant court happen on a fast timeline and with no formal discovery process.
"In order for the system to function, the complaint and its attachments have to meet with legal requirements, because that's all there is," Weiss said.
As to the disparity between the report's findings and the judiciary's findings on the frequency of deficient filings, Weiss said it is likely caused by differences in how the groups define a deficiency. Weiss' report, for instance, said that New Jersey's Administrative Office of the Courts has excused landlords from filing 30-day notices of eviction as required by the federal Coronavirus Aid, Relief and Economic Security Act, but the report counted those filings as deficient. According to the report, landlords omitted those notices in 89% of cases where they were required.
The report comes as New Jersey's landlord-tenant system is in a time of change stemming from the COVID-19 pandemic.
In September 2021, among a slate of other COVID-era reforms, the state Supreme Court ordered landlord-tenant courts to start conducting "additional, early, enhanced review" to catch deficiencies, but only in more complicated cases, like those involving public or subsidized housing. Landlord-tenant courts were ordered to provide written notice to landlords if their complaints had deficiencies and to give them a chance to fix them, or else their cases would be dismissed.
Despite the change, the report said it "remained unclear whether and how the courts were reviewing the complaints subject to enhanced initial screening."
Two years later, in September 2023, the state judiciary rolled back some reforms from 2021, including mandatory pretrial case management conferences, but began requiring landlord-tenant courts to check that landlords had attached all required documents for every residential eviction case, the report said.
That change was still not enough, however, to lower the prevalence of deficient filings, according to the groups behind the report.
"Again, tenant advocates observed no marked improvement in the quality of residential eviction filings after the 2023 directive took effect," the report said.
The groups behind the report are now looking to build on the reforms from 2021 and 2023 by recommending that all residential eviction filings be subjected to a comprehensive initial review for facial deficiencies, using a checklist that they created.
"The idea is that we avoid cases getting to the point where they're before a judge if they can be flagged early on in the process that they are deficient," said Jess Kitson, director of legal advocacy at Volunteer Lawyers for Justice. "Not only does it save the court time and make sure that they're not getting to the court, to the judges, when they shouldn't, but it also gives the landlord an opportunity to cure it if it's been caught ahead of time and fixed."
They have also called for simplification of the eviction complaint template to head off deficient filings in the first place, a move that could potentially ease the burden on landlords, Kitson said.
"Especially for landlords who are pro se, let's be as clear as possible," Kitson added. "I don't think anyone is interested in wasting the court's resources."
The report also calls on the courts to enforce a rule laid out in September 2023 requiring a minimum five-week period between when a tenant is notified about an upcoming trial and when the trial takes place. According to the report, courts did not give tenants the full five-week notice period in 27% of cases.
"The notices, the rent, the landlord registration statement — it's not rocket science," Smith said. "It's quite easy to do it right."
Looming in the background of the debate around deficient filings is the larger debate about representation in landlord-tenant court.
Housing advocates say the root of the issue is that the vast majority of tenants in landlord-tenant court are unrepresented and don't know enough about the law to fight off an eviction complaint on their own. They may be so unfamiliar with the system that they don't even come to court to defend themselves, leading to default judgments, which are a common occurrence in eviction cases.
Bernard said his experience was similar, as he faced repeated eviction threats before finding help at the Housing Justice Project.
"I haven't had a lot of legal encounters in my life and so to say that I'm privy to any law or anything that would be helpful in that instance would be a blatant lie," Bernard said. "I didn't even know where to go."
"It's like a machine down there," he added, referring to landlord-tenant court.
Efforts to provide a right to counsel in civil cases like evictions — similar to the right to counsel in criminal cases — have seen success around the country in recent years. Court systems across 18 states have seen some kind of limited right to counsel enacted in eviction cases, either at the state or the local level, according to the National Coalition for a Civil Right to Counsel. In New Jersey, for instance, Jersey City and Newark have enacted local programs, but there is no statewide program.
Weiss said it was ultimately up to state and local legislative bodies to create and fund right-to-counsel programs for eviction cases, but in the meantime, that does not let the judiciary off the hook.
"If that is not going to happen, that doesn't relieve the courts of their obligation to ensure that they're only entering judgments of eviction when they have jurisdiction," Weiss said. "The courts have an independent obligation to ensure that they are not acting without jurisdiction, and the courts are not meeting that obligation."
Weiss also acknowledged that what the report is asking for is a tall order. Checking every eviction complaint for deficiencies is a drain on the resources in a court system that has already struggled with understaffing issues in recent years.
"We understand that that is difficult, but it is also critical that the courts not be entering judgments that they aren't allowed to enter," Weiss said. "Our position is, difficult as it may be, the courts need to be moving in the direction of ensuring that there is an adequate legal basis before entering an eviction judgment."
Bernard ultimately left his family's apartment while there was a third eviction complaint pending against him and settled the case. Even though he was never actually evicted, the fact that there were several eviction cases attached to his name could have made it difficult to find new housing. Luckily, though, he had met the owner of an affordable housing building in Newark by doing photography for his daughter's wedding
Now Bernard lives on a secluded street, one that, a bit like the dated decor in his parents' old apartment, looks like it is trapped in the '70s, he said. Bernard's housing situation may have resolved positively, but it still speaks to a core imbalance in New Jersey's landlord-tenant system, advocates say: With no oversight, pro se tenants don't know enough to fight off deficient eviction complaints.
That imbalance undermines what landlord-tenant court is supposed to be — a level playing field for resolving disputes between renters and their landlords, Smith said. The report names the problem, and possibly shows the way forward.
"If that truly is the design, then let's make it work that way," Smith said.
--Graphics by Ben Jay. Editing by Robert Rudinger.
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