S279

An Act concerning the confidentiality of court records of landlord-tenant actions, adverse actions on rental applications, supplementing chapter 42 of Title 2A of the New Jersey Statutes, and P.L.1945, c.169 (C.10:5-1 et seq.).

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Legislature finds and declares that:

a. New Jersey remains in the grip of a critical shortage of decent, affordable rental housing, a situation first formally acknowledged more than 40 years ago and which prevails today. The New Jersey Legislature and the courts have on many occasions recognized the severity of this crisis, especially for households of lower-income, and have taken action to protect tenants from unnecessary, unjust, and debilitating treatment or hardship.

b. New Jersey’s rental housing shortage makes it difficult for people to find and retain decent, safe, and affordable rental units. Landlords and private tenant rating agencies, have developed a system for disseminating tenant screening reports which exhibit screening criteria, such as credit history and criminal history, to assist landlords in evaluating prospective tenants. Unfortunately, such screening tools are often used pretextually, or are arbitrarily formulated and applied without reference to common, agreed upon sets of standards.

c. One such screening mechanism involves the collection of court filing data. Landlord-tenant court actions are among the most commonly filed civil cases in the State of New Jersey, and often involve situations in which the tenants in question have valid legal or equitable defenses. Additionally, a large number of such cases are dismissed or settled on terms favorable to the tenants involved.

d. At present, all landlord-tenant court filing records are available to the public. These court records are routinely mined by tenant rating agencies, which then sell tenant-specific reports incorporating them to interested landlords. In most instances the data provided is limited to the single fact that a filing occurred, without reference to, or investigation of, the facts and circumstances surrounding the inception and resolution of the litigation.

e. The mere filing of a court proceeding by or against a tenant, without regard to, or interest in, the ultimate results of the proceeding, has in many cases been used by prospective landlords and tenant screening agencies as the sole or primary reason for denying an application for a residential tenancy, or the preparation of a report which views the tenant unfavorably. The result is that otherwise worthy applicants are being denied access to critically-needed housing, often severely limiting their housing options and subjecting them to possible homelessness. This can occur even if the actions which triggered the case filing were based upon long-recognized common law or statutory remedies, such as rent withholding in the case of serious, even life-threatening deficiencies in the living conditions of the rented dwelling.

f. As a result, tenants who assert and rely upon valid legal defenses or established legal rights, or who otherwise prevail through litigation, settlement, or dismissal, can nevertheless find their ability to move to and obtain another rental unit seriously compromised. This “blacklisting” of prospective tenants based solely upon bare-bones court filing data can cause serious difficulty for individuals and families applying for rental housing, and in some circumstances can result in homelessness. The use of court-filing screening also has a serious “chilling effect” on tenants’ assertion and exercise of their statutory and common law rights. This result is contrary to public policy the intent of the courts, the Legislature, and the administrative bodies which established these rights.

g. It is, therefore, in the public interest of the State of New Jersey to protect tenants from unjust, unfair, or discriminatory screening practices by limiting access to filing information in court actions involving landlord-tenant matters for a reasonable period of time, and permanently denying access to such information with regard to matters in which the tenants prevailed or achieved a favorable settlement, or which have been affected by the passage of time.

2. a. The court record of a landlord-tenant action, including information that the action has been filed, shall remain confidential and unavailable to the public for the first 60 days after and including the date the action was filed.

b. The court record of a landlord-tenant action shall remain confidential and unavailable to the public indefinitely unless the action results in a judgment for possession.

c. The court record of a landlord-tenant action that results in an unconditional judgment for possession shall become public the later of the 61st day after the date the action was filed or within 45 days after the date the matter is completely resolved, however, if the matter is appealed by either party, the court record shall remain confidential and unavailable to the public until the conclusion of the appeal, and only be made available to the public if the landlord prevails.

d. The court record of a landlord-tenant action shall remain confidential and unavailable to the public, although a judgment for possession has been entered, if the judgment is subject to conditions that, if met by the tenant, may result in the judgment being vacated and the matter dismissed. However, if the court finds, after notice to the tenant and an opportunity to be heard, that the conditions have not been met, the court record shall be made available to the public at the conclusion of an appeal or an opportunity to appeal the judgment.

e. The court record of a landlord-tenant action shall remain confidential and unavailable to the public, although a judgment for possession has been entered, if the tenant files a timely order to show cause seeking to vacate the judgment prior to being physically locked out of the housing unit. The court record shall remain confidential and unavailable to the public until the order to show cause is resolved, and shall remain confidential and unavailable to the public if the tenant prevails.

f. The court records of any cause of action brought by a tenant asserting a legal right against a landlord shall remain confidential and unavailable to the public indefinitely, regardless of whether the tenant prevails, unless the tenant voluntarily consents to making the court record available to the public.

g. Prior to issuing a written opinion or decision related to a landlord-tenant action, the court shall redact the names and addresses of the parties, and any information that may facilitate discovery of the parties’ identities.

3. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Court record” means any record containing information regarding a past or current landlord-tenant action, and any record of the filing of a landlord-tenant action, including but not limited to:

a. any information maintained by a court in any form in connection with a case or judicial proceeding, including but not limited to pleadings, motions, briefs and their respective attachments, evidentiary exhibits, indices, calendars, and dockets;

b. any order, judgment, opinion, or decree related to a judicial proceeding;

c. any official transcript or recording of a public judicial proceeding, in any form;

d. any information in a computerized case management system created or prepared by the court in connection with a case or judicial proceeding; and

e. any record made or maintained by a judicial officer.

“Landlord” means the business entity, person, or persons which own, purport to own, or exercise control of a residential dwelling, building, project, or mobile home park in which there is rented or offered for rent housing or mobile home pad space for living or dwelling purposes under either a written or oral lease.

“Landlord-tenant action” means any action brought by or against a landlord or tenant, including an ejectment action in which the possessor establishes tenancy, in the Superior Court of New Jersey, including the Special Civil part of the Superior Court.

“Screening criteria document” means a written statement detailing the criteria to be used by a landlord to evaluate a rental application and determine whether to accept the applicant as a tenant.

4. a. Any New Jersey public entity that maintains a written or automated record or file of court records of landlord-tenant actions shall take appropriate actions to ensure that court records of all landlord-tenant actions that did not result in an unconditional judgment for possession are kept confidential and unavailable to the public.

b. The Administrative Office of the Courts shall expunge the court records of any eviction or ejectment action, including any such action resulting in a judgment of possession, after the expiration of three years from the date of the judgment.

c. The Supreme Court of New Jersey may adopt rules, and the Administrative Director of the Courts may issue directives and guidelines, to implement the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill).

5. When evaluating a prospective tenant, a landlord shall not consider:

a. a landlord-tenant action brought by or against a tenant which did not result in a judgment for possession and actual displacement, or which did result in a judgment for possession but was then withdrawn, dismissed, or reversed; or

b. a judgment for possession that was entered and executed against the prospective or existing tenant three or more years prior to the tenant’s application for tenancy.

6. At the time a prospective tenant of a residential dwelling unit submits a rental application to a landlord, the landlord shall deliver to the prospective tenant the landlord’s screening criteria document.

7. If a landlord rejects an application from a prospective tenant, approves an application with conditions that exceed reasonable conditions routinely imposed upon a prospective tenant, or takes any other adverse action on a rental application, the landlord shall provide a written notice of the adverse action to the prospective tenant that states the reasons for the adverse action. The adverse action notice shall disclose any screening information about the prospective tenant accessed by the landlord, and shall append any screening report about the prospective tenant that was accessed by the landlord. The adverse action notice shall be provided in a substantially similar format as set forth in this section.

ADVERSE ACTION NOTICE

Name

Address

City/State/Zip Code

This notice is to inform you that your application has been:

..... Rejected

..... Approved, subject to the following conditions:

_______________________________________________________

Adverse action on your application was based, in part, on the following:

..... Information contained in a consumer report (The prospective landlord must include the name, address, and phone number of the consumer reporting agency that furnished the consumer report that contributed to the adverse action, and attach a copy of the report.)

..... Information received from previous rental history or reference

..... Information received in a criminal record

..... Information received in a court filing or other court record

..... Information received from an employment verification

..... Other

The following is (are) the name(s), address(es), and phone number(s) of each of the consumer reporting agencies, or other agencies or entities, that furnished the reports or information referred to above:

_______________________________________________________

Your application was not accepted, or was approved with the additional conditions described above, for the following reasons (Specify why the application was denied or approved with conditions and refer to the relevant provisions of the screening criteria document.): _______________________________________________________

Dated this ..... day of ........, ....(year)

Agent/Owner Signature"

8. Any person who violates section 5, 6, or 7 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall, in addition to any other penalty provided by law, be liable for a penalty of not less than $1,000 for the first offense, and not less than $5,000 for the second and each subsequent offense, plus reasonable attorney fees. This penalty shall be exclusive of, and in addition to, any moneys or property ordered to be paid or restored to any person in interest, and shall be paid to the aggrieved applicant or tenant.

9. Except in accordance with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), a person or entity which provides court filing information or information contained in the court records of a landlord-tenant action to a landlord or other entity involved in the rental of a dwelling unit commits a crime of the fourth degree. Each provision of information committed in violation of this section constitutes a separate offense.

10. In addition to any other remedies provided by law, a residential tenant or applicant for rental housing may bring an action in Superior Court for any violation of P.L. , c. (C. ) (pending before the Legislature as this bill) for treble actual damages or $5,000, whichever is greater, attorney’s fees, costs of suit, and appropriate equitable relief.

11. In addition to the types of unlawful discrimination set forth in subsections g., h., i., j., l. and m. of section 11 of P.L.1945, c.169 (C.10:5-12), it shall be an unlawful discrimination for a person to refuse to rent or lease real property to another person because that person, while a residential tenant or prospective residential tenant, had ever been a party in a summary dispossess proceeding or other civil action, or undertook any action to enforce or implement rights or remedies provided by statute, regulation, or the common law.

12. This act shall take effect immediately and shall apply retroactively to court records of all landlord-tenant actions.

STATEMENT

This bill would preserve the confidentiality of the court records of landlord-tenant actions under certain circumstances. The bill defines the term “court records” expansively to include any record containing information regarding a past or current landlord-tenant action, and any record of the filing of a landlord-tenant action. The bill defines the term “landlord-tenant action” as any action brought by or against a landlord or tenant, including an ejectment action in which the possessor establishes tenancy, in the Superior Court of New Jersey, including the Special Civil part of the Superior Court.

The bill specifically provides that the court record of a landlord-tenant action, including information that the action has been filed, will remain confidential and unavailable to the public for the first 60 days after and including the date the action is filed. Under the bill, the court record of a landlord-tenant action will remain confidential and unavailable to the public indefinitely unless the action results in a judgment for possession.

The bill provides that if a landlord-tenant action results in an unconditional judgment for possession, the court record of the action will become public on the later of the 61st day after the date the action was filed or within 45 days after the date the matter is completely resolved. However, if the matter is appealed by either party, the court record remains confidential and unavailable to the public until the conclusion of the appeal, and will only be made available to the public if the landlord prevails.

The bill also provides that the court record of a landlord-tenant action will remain confidential and unavailable to the public although a judgment for possession has been entered, if the judgment is subject to conditions that, if met by the tenant, may result in the judgment being vacated and the matter dismissed. However, if the court finds, after notice to the tenant and an opportunity to be heard, that the conditions have not been met, the court record shall be made available to the public at the conclusion of an appeal or an opportunity to appeal the judgment.

Under the bill, the court record of a landlord-tenant action will remain confidential and unavailable to the public after entry of a judgment for possession if the tenant files a timely order to show cause seeking to vacate the judgment prior to being physically locked out of the housing unit. In this circumstance, the court record will remain confidential and unavailable to the public until the order to show cause is resolved, and will remain confidential and unavailable to the public if the tenant prevails.

The bill provides that the court record of any cause of action brought by a tenant asserting a legal right against a landlord will remain confidential and unavailable to the public indefinitely, regardless of whether the tenant prevails, unless the tenant voluntarily consents to making the court record available to the public. The bill directs a court, prior to issuing a written opinion or decision related to a landlord-tenant action, to redact the names and addresses of the parties and any information that may facilitate discovery of the parties’ identities.

The bill also requires New Jersey public entities that maintain a written or automated record or file of court records of landlord-tenant actions to take appropriate actions to ensure that court records of all landlord-tenant actions that did not result in an unconditional judgment for possession are kept confidential and unavailable to the public. The bill directs the Administrative Office of the Courts to expunge the court records of any eviction or ejectment action, including any such action resulting in a judgment of possession, after the expiration of three years from the date of the judgment.

The bill also addresses the use of court records by landlords when evaluating prospective tenants. The bill prohibits a landlord, when evaluating a prospective tenant, from considering a landlord-tenant action brought by or against a tenant that did not result in a judgment for possession and actual displacement, or which did result in a judgment for possession but was then withdrawn, dismissed or reversed. The bill also prohibits landlords from considering a judgment for possession that was entered and executed against a prospective or existing tenant three or more years prior to the tenant’s application for tenancy. The bill requires a landlord, at the time a prospective tenant of a residential dwelling unit submits a rental application to the landlord, to deliver to the prospective tenant the landlord’s screening criteria document. The bill defines the term “screening criteria document” to mean a written statement detailing the criteria to be used by a landlord to evaluate a rental application and determine whether to accept the applicant as a tenant.

Additionally, the bill would require a landlord who takes an adverse action on a rental application to provide written notice of the adverse action to the prospective tenant, stating the reasons for the adverse action. The adverse action notice must disclose any screening information about the prospective tenant accessed by the landlord, and must append any screening report about the prospective tenant that was accessed by the landlord.

The bill would authorize imposition of a penalty on a landlord who violates the bill’s provisions concerning the improper screening of tenants. Specifically, the bill provides that in addition to any other penalty provided by law, a landlord will be liable for a penalty of not less than $1,000 for a first offense, and not less than $5,000 for a second and each subsequent offense, plus reasonable attorney fees. This penalty would be exclusive of, and in addition to, any moneys or property ordered to be paid or restored to any person in interest, and are to be paid to the aggrieved applicant or tenant..

Under the bill, a person or entity which provides court filing information or information contained in the court records of a landlord-tenant action to a landlord or other entity involved in the rental of a dwelling unit, except in accordance with the provisions of this bill, commits a crime of the fourth degree. Each provision of information would constitute a separate offense. In addition to any other remedies provided by law, a residential tenant or applicant for rental housing may bring an action in Superior Court for any violation of this bill for treble actual damages or $5,000, whichever is greater, attorney’s fees, costs of suit, and appropriate equitable relief.

Finally, the bill provides that it is unlawful discrimination under the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.), for a person to refuse to rent or lease real property to another person because that person, while a residential tenant or prospective residential tenant, had ever been a party in a summary dispossess proceeding or other civil action, or undertook any action to enforce or implement rights or remedies provided by statute, regulation, or the common law.