A group of homeowners joined together to sue the builder of their development for selling them homes with infiltrator septic systems instead of stone and pipe septic systems, which allegedly have a substantially-shorter useful life.  Since many of the homes were sold over ten years prior to the filing of the complaint, the Plaintiffs only filed Consumer Fraud Act ("CFA") claims and did not file faulty design or construction defect claims.  However, the Appellate Division affirmed the ruling of the trial judge that all claims must be dismissed based upon the statute of repose.  Noting the broad application of the statute of repose, that it covered all claims regardless of how a plaintiff couches the cause of action, citing the legislature's use of the language that no action could be brought after ten years, "whether in contract, in tort, or otherwise." (Allen, et. al. v. Beazer Homes Corporation)

In an interesting unpublished Law Division case, tenants argued that a landlord violated the City of Newark's rent control ordinance because it was trying to evict them for failure to pay "additional rents" (such as late fees and legal fees for collection of past-due rents) which would increase the total rent above the cap set forth in the ordinance.  The Judge agreed with the tenant’s argument that the landlord could not insist on the additional rent as part of a summary dispossess (eviction) action, which is an important factor in this case as the only remedy sought in the case was to evict the tenants for failure to pay rents.   The Court wrote that its holding only applies in a summary dispossess action and that the landlord could file suit pursuant to contract law in the law division seeking a monetary remedy.  The unpublished nature of this decision means that it is not binding upon other courts, but it will be interesting to see if the Court's clarifying dicta holds up in an action to recover the additional rent because if the lease violates the law per the rent control ordinance, then it would follow that the portion of the contract that is in violation of the law would be unenforceable.  (Opex Realty Management LLC v. Taylor

​The Appellate Division recently ruled on Restrictive Covenant Agreements ("RCAs"). These agreements are also known as non-competes or non-solicitation agreements. The first step in any of these types of cases is for the business to prove that it has a legitimate business interest in having a restrictive covenant with its employee or ex-employee. In ADP v. Kusins, et. al., the business cleared the first hurdle.   In the business' RCA, it prevented ex-employees, "from soliciting any actual or prospective … client, regardless of the employee's geographical location or personal contact with the client, for a twelve-month period after termination." The Court here found these restrictions were too broad.  However, the court did not void the entire RCZ, but instead curtailed the terms of the restrictions.
 
First, the court allowed ex-employees to be prohibited from soliciting any "actual clients" whom they had prior contact with while at the former business.  Second, the court only permitted restricting solicitation of prospective clients, "if the employee gained knowledge of the potential client while at ADP and directly or indirectly, solicits that client after leaving."  Third, with regard to the non-competition portion of the RCA, the Court found a business could, "restrict its former employees, for a reasonable time, from providing services to a competing business in the same geographical territory in which the employee operated while at ADP." The Court did not define what a "reasonable time" meant but in the particular RCA before the court, the length of the restriction was 12 months.  (ADP v. Kusins, et. al.)

In a recent unpublished decision from the Appellate Division, the court reversed the granting of a zoning variance and remanded the matter back to the local zoning board.  A Morristown homeowner sought, and received, approval from the zoning board to convert a two-family residence into a three-family residence.  However, the township's approval was conditioned on the property being occupied by the owner.  On appeal, this residence condition was overturned with the court stating that, "a fundamental principle of zoning that a zoning board is charged with the regulation of land use and not with the person who owns or occupies the land," and, "conditions which make a variance personal to the property owner are invalid."  Since the record reflected that many of the members of the board based their approval votes on the fact that the property would remain owner-occupied, the Appellate Division remanded the matter back to the local zoning board for a rehearing and new vote now that the residence requirement was determined to be impermissible.  (Kiehn v. Mongey, et. al.)

In an unpublished decision, the Appellate Division found that a commercial tenant could be evicted where although there were some minor issues with the building, such issues did not rise to the level of uninhabitability.  First, the court confirmed that the case of Marini v. Ireland, 56 N.J. 130 (1970) is applicable both to residential and commercial tenancies.  After doing so, the court referenced Berzito v. Gambino, 63 N.J. 460 (1973) which established the factors to consider when determining if a landlord breached the warranty of habitability.  Specifically, those factors are as follows:  1. Has there been a violation of any applicable housing code or building or sanitary regulations?  2. Is the nature of the deficiency or defect such as to affect a vital facility?  3. What is its potential or actual effect upon safety and sanitation?  4. For what length of time has it persisted?  5. What is the age of the structure?  6. What is the amount of the rent?  7. Can the tenant be said to have waived the defect or be estopped to complain? and 8. Was the tenant in any way responsible for the defective condition?  Based upon these factors, the appellate court determined that there was no breach of the warranty of habitability.  Although the record did demonstrate that there were some roof leaks as well as some vegetable oil smells and leaks from the adjacent unit in the building, the evidence in the record demonstrated that such issues were mere inconveniences and did not rise to the level of uninhabitability.  Consequently, the tenant was not entitled to an abatement and the matter was remanded so that a judgment of possession could be issued for the Landlord.  (Linwood Avenue Development, LLC v. Advanced Professional Plumbing, Heating & Cooling, LLC)