Grounds for Eviction

HNW Landlord and Tenant, Real Estate Law

When a landlord is seeking to terminate a residential tenancy, it is important to select the proper statutory grounds under which to proceed. Under no circumstances may a tenant be legally “evicted” without meeting a statutory prerequisite. Note that the statute may require that one or more notices be served upon the tenant prior to proceeding with court action. With the exception of a tenant’s non-payment of rent, or failure to pay rent after a reasonable increase (which requires a separate notice unto itself), a landlord is required to serve notice upon a tenant prior to the institution of court action. N.J.S.A. 2A:18-61.2 provides the notice requirements. I have set forth below the text of the statute that describes the …

Commercial Landlords: Four Important Questions to Ask When a Tenant Files for Bankruptcy

HNW Real Estate Law

With the recent downturn in the market, a number of commercial tenants are experiencing financial difficulties. In turn, this can lead to problems for commercial landlords, most importantly, the tenant staying current with lease payments. This may then lead to the tenant filing for bankruptcy protection. If your commercial tenant files for bankruptcy, it is wise to have a strategy in place to not only minimize the time of non-payment, but also maximize the ability to receive rents and damages allowed under the Bankruptcy Code.  Following are four (4) questions for commercial landlords to review with an attorney  whenever a commercial tenant files for bankruptcy protection: 1.    Have You Filed a Proof of Claim(s)?  As soon as the tenant/debtor files …

Short Sales When Loans Exceed the Value of a Home

HNW Real Estate Law

What is a short sale?  This is a term which is being used with increasing frequency in today’s real estate market. A short sale is when the proceeds from the sale of a home are not sufficient to fully pay off all outstanding debts which are secured by the property (mortgages) after first deducting the homeowner’s costs of selling the property.  In such instances, the selling homeowner can either bring funds to closing to make up the difference, or obtain approval from his mortgage holders to accept a reduced amount to satisfy his outstanding loans.  Unless a homeowner is able to pay off all of the mortgages which are secured by his property, the homeowner will not be able to …

As a Landlord, Here are 10 Things to Know When Going to Tenancy Court

HNW Landlord and Tenant, Real Estate Law

New Jersey law is very biased against Landlords.  One innocent mistake can be devastating to you financially. 1. When the Clerk or Judge calls the list of all matters scheduled, if the landlord is present in the courtroom and the tenant is not, the tenant will be “in default.” In that case, a judgment granting the landlord possession of the leased property may be entered against the tenant after the landlord has filed an affidavit proving a right to possession.  If the tenant is present in the courtroom and the landlord is not, the landlord’s complaint will be dismissed without prejudice, meaning it may be filed again without penalty. 2. In non-payment of rent cases, the tenant has the right to pay …

Special Needs Trust: A Tool to Protect Your Disabled Child, Grandchild or Family Member: Simplifying the Maze

HNW Elder Law, Estate Administration, Special Needs, Wills & Trusts

By Fredrick P. Niemann, Esq., NJ Special Needs Trust Attorney Introduction: Special Needs Trusts can themselves be complicated and confusing. The rules governing their creation and administration, and the effect on public benefits eligibility of specific trust payments, can be even more complicated. Let us try to simplify some of the rules, particularly those governing provision of food and shelter to a Special Needs Trust beneficiary. Background: A “Special Needs” Trust is one established for the benefit of an individual with a disability — as that term is defined by federal Social Security rules. Such a trust is not counted as an available resource for a Supplemental Security Income (SSI) or Medicaid recipient. Its primary purpose — whether funded by …

Federal Nursing Home Site Now Notes Troubled Facilities

HNW Elder Law, Medicaid

The federal Centers for Medicare & Medicaid Services (CMS) has announced that its Web site comparing nursing homes will now identify facilities that are on its list of those that have a history of poor performance. From now on, the agency’s Nursing Home Compare site will point out nursing homes that it calls Special Focus Facilities — those that have repeated violations of state and federal health and safety rules and that rank in the worst 5 percent to 10 percent for inspection results in a given state. CMS released the names of the 131 SFF facilities earlier this year, but this is the first time they will be included on the Nursing Home Compare site.  The troubled facilities are identified …

Married Couples for Purposes of Estate Recovery

HNW Additional Practice Areas, Elder Law, Estate Administration

On March 12, 2008, Washington State Governor Christine Gregoire signed into law House Bill 3104, extending 170 legal rights and responsibilities to couples in domestic partnerships (same- or opposite-sex relationships). Among the new responsibilities is that the state will treat surviving members of the couple the same as surviving spouses of married couples for purposes of estate recovery by Medicaid. The new law, which takes effect June 12, 2008, prohibits recovery by Medicaid if the agency would not have been permitted to recover from a surviving spouse in similar circumstances.

Taking a Second Look If You Elected Early Social Security Benefits

HNW Elder Law

Did you elect to take Social Security benefits before your full retirement age? If you did and are now looking for extra income, there may be an answer. Once you reach full retirement age, you can pay back the money you have received and reapply for full retirement benefits. Although you can collect Social Security benefits between age 62 and your full retirement age, if you do, your benefits will be lower. For example, if you were born in 1944 and decide to retire at age 62, four years before your full retirement age of 66, your total benefit reduction is 25 percent. If your full benefit was to be $1,000 a month, your reduced benefit will be $750. A …

Ohio Appeals Court Determines That Resources in Trust Are Countable

HNW Additional Practice Areas, Elder Law, Estate Administration, Medicaid

An Ohio appeals court rules that assets held in an irrevocable trust are available to a Medicaid applicant because the trustee has the discretion to make payments of trust principal for the applicant’s benefit. Balanda v. Ohio Dept. of Job (2008-Ohio-1946, April 24, 2008). After living in a nursing home for three years, Eleanor Balanda applied for Medicaid in December 2004. The Ohio Department of Job and Family Services denied her application due to excess resources. In February 2005, Eleanor’s husband, Vincent, created an irrevocable trust and subsequently transferred $40,800 into it. In December 2005, Eleanor again applied for Medicaid and the Department again denied her application, this time holding that the assets in the trust were available because the …

Identifying and Dealing With Financial Abuse of the Elderly

HNW Elder Law

It is not uncommon for the elderly to become victims of financial abuse. They may be losing — or already have lost — some of their cognitive ability, and their judgment may be clouded. The perpetrator can be anyone from a stranger to a friend, caretaker, relative, or trusted financial advisor. “As people grow older, they grow dependent on others for care, and part of that care means someone must help them with their finances,” says Larry Pickard, who supervises the unit that deals with financial abuse of the elderly at San Francisco Adult Protective Services. I have seen this financial abuse in the course of my own work helping the elderly organize their finances. Recently, Mr. Smith (all names …