Why in the World Do Most Tenants Lack Legal Representation?


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tenantsWalk into any Landlord/Tenant courtroom and one thing is certain. When it comes to the landlords, most will have an attorney appearing on their behalf. However, tenants don’t engage in the same mindset. If they do show up for court, they almost always lack legal representation. Ever wonder why that’s the case?

First things first. Can you guess the number one reason that evictions complaints are filed?  For the most part, landlords seek to regain the premises when tenants fail to pay rent. In the majority of cases, it’s difficult for a lessee to assert a defense of any kind when they’re not complying with one of the most basic components of the lease agreement.

Trust be told, landlords may question tenants who bring legal counsel to court. After all, if they can afford an attorney, why didn’t they just pay the rent in the first place?

Tenants and Legal Representation

It’s a scene that some may cynically view as typical. The tenant is struggling with bills and decides that paying for other expenses is far more important than providing for a roof overhead. For now, and it could change in the future where tenants can apply for legal assistance, many tenants do not proceed with an attorney.

A benefit to both parties is that landlord/tenant courts in New Jersey and many other jurisdictions use mediators to alleviate the court’s calendar. Many times, the mediators are new lawyers who are employed as judicial law clerks. With a fresh set of eyes on the matter from an objective viewpoint, the case can be settled.

Sometimes the mediaton process works; other times it does not. It depends on the parties.  However, there are instances where the tenant has a defense but does not know how to handle it procedurally.   How would an attorney help in this situation?

A Lawyer Might Come Up with Legal Arguments

Not every tenant in an eviction case has a legal defense. However, certain elements may come as a surprise. First, there is the issue of bankruptcy. For example, an attorney might advise you that your financial situation warrants you filing for bankruptcy. If you do so, a stay of the eviction proceedings will be put in place.

What does this mean exactly? The landlord will be forced to wait for the bankruptcy judgment – or ask the court for an order allowing them to pursue your eviction.

Habitability is another legal issue. However, according to an opinion piece that appeared in a local newspaper – this is seldom a consideration. In fact, out of 40,000 cases filed in one year in Essex County, only 80 involved habitability issues.

In case you’re not exactly sure what habitability concerns, tenants have the right to safe and decent housing. This means counting on heat during certain months as prescribed by N.J.A.C. 5:10-14. Meanwhile, it can also entail repairs needed to make the premises livable.

A tenant may attempt to make the necessary repairs and withhold rent. However, according to current laws, monies must be deposited with the court to show that rental payments are available. No doubt the intention of this mandate is to eliminate concerns that lack of habitability is merely an excuse for not paying the rent. (Changes are under consideration by the Legislature regarding this portion of the law.)

Landlords May Benefit When Tenants Have Attorneys

To some landlords, it might seem that it would be best that tenants forego legal representation. However, there are advantages to dealing with legal counsel instead of the lessee.  These include:

  • Tenant’s counsel will provide advice concerning the law and rental payments
  • Attorney for the lessee will explain the rental agreement in detail
  • Negotiation and settlement result in more successful outcomes
  • Legal counsel may advise tenant on the true feasibility of claiming habitability issues

Contact Us

At the Law Offices Lawrence M. Centanni, we assist individuals involved in both commercial and residential landlord/tenant issues.  Contact us to schedule an appointment to discuss your situation.

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