Commercial litigators seldom have reason to reach for the New Jersey landlord-tenant statutes. When a client seeks to evict a commercial tenant for unpaid rent, however, the client may ask whether the law permits the use of “self-help” eviction to oust the nonpaying lessee. In advising such clients, practitioners should be aware that published opinions addressing self-help evictions in the commercial setting have recognized constitutional constraints upon the self-help remedy. These decisions have led at least one commentator to conclude that all commercial, self-help evictions must conform to the procedural Due Process Clause of the Fourteenth Amendment. However, this view is mistaken: where self-help evictions do not implicate “state action,” landlords may dispense with the formal, procedural prerequisites otherwise mandated by the Constitution.
The New Jersey Legislature has enacted extensive protections for residential tenants in this state. For example, under the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to – 61.12, the Superior Court will only evict a residential tenant for cause, even upon the expiration of the lease contract; the Anti-Eviction Act creates a property interest “akin to a life estate” in the residential premises. Maglies v. Estate of Guy, 193 N.J. 108, 143 (2007) (Hoens, J., dissenting); see N.J.S.A. 2A:18:61.1; N.J.S.A. 2A:18-61.2. The law is less friendly to commercial tenants. The Summary Dispossess Act, N.J.S.A.2A:18-53 to -61, creates no such perpetual rights in the commercial lease setting.
