Consumer Fraud Act

          As attorneys who represent both individual and corporate clients, we view New Jersey’s Consumer Fraud Act as a double-edged sword.  If you are an individual consumer, New Jersey’s Consumer Fraud Act has bestowed upon you an avenue to seek damages (triple damages) if you have been the victim of “any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, …”.  This is actually a bit misleading because the New Jersey law will find a merchant or other vendor automatically liable of a Consumer Fraud Act violation even if there was no bad intent.  There are a host of specific trades which have extra rules and requirements placed on them.  Failure to meet these strict, technical requirements imposed on them will result in a court’s finding that the business entity committed consumer fraud.  The list of violations explicitly addressed by the Consumer Fraud Act runs the gamut from:  everyday retailer selling merchandise without pricing/labeling on each item; to the misrepresentation of identity of food in menus (did you know that the State defines different cuts of meat?  So next time you order filet mignon, know it is defined as “meat derived from the tenderloin of a cattle”); to the resale (scalping) of tickets for admission to an event; to the requirement that all health clubs properly register with the State (including the requirement to post a surety bond with the State) and also to enter written contracts with its patrons; to assuring the timely delivery of furniture; to specific contract requirements for home improvement contractors; to the repair of home appliances.

          The law is meant to be harsh and not provide much flexibility to the businesses serving consumers.  If you are a consumer and feel you have been aggrieved, know that this law exists and that you have the opportunity to recover three times your damages.  If you are a business, do not make any assumptions about your trade practices.  When in doubt, ask.  A simple fix to an advertisement or a contract could mean the difference in winning your dispute or be taken to the cleaners.

          James J. Delia, Esq.

Site Remediation Reform Act (SRRA)

          On May 7, 2009 the New Jersey Legislature signed the Site Remediation Reform Act (SRRA) which serves to dramatically change the manner in which parties remediate environmentally contaminated sites throughout the state.  The legislation now places the responsibility of remediation squarely on private environmental consultants known as Licensed Site Remediation Professionals (LSRP).  The intent of this program is to alleviate an overburdened New Jersey Department of Environmental Protection (NJDEP).

          Once the remediation of a site has been completed, an LSRP will issue a Response Action Outcome (RAO) which will verify that the remediation is complete.  No Further Action Letters will no longer be issued by the NJDEP.  Similar to a No Further Action Letter, however, an RAO will contain a covenant not to sue.  This legislation is in its infancy stages and drastically changes the manner in which property owners have to handle the remediation of contaminated sites.  If you are currently involved in a remediation project, or contemplating the purchase of a property which will require remediation, we would recommend that you contact our office to discuss this change in the law further. 

          Andrew S. Kohut, Esq.

Flood Insurance

While Awaiting Congressional Reauthorization, Property Owners Located In Flood Prone Areas May Be Left Unprotected As Hurricane Season Approaches

Insurance companies issue flood policies as part of the National Flood Insurance Program (NFIP) run by the Federal Emergency Management Agency (FEMA).   The NFIP operates under authority from Congress that has to be renewed periodically.  While there have been several lapses in authority for the NFIP and Congress has in the past reauthorized the program retroactively, there is currently uncertainty and confusion within the industry. 

On April 15, 2010, Congress approved legislation reinstating NFIP until May 31, 2010, retroactive from March 28, 2010, when the fourth temporary extension since the program’s authorization originally expired on September 30, 2008.   As of June 16, 2010, NFIP remains in limbo with the Senate having voted down the bill which would have extended the program through December 31, 2010. 

NFIP is currently experiencing yet another hiatus – a period without authority to issue new policies; increase coverage on existing policies or renew policies for which application and premium dates are on or after June 1, 2010, causing concern to property owners who need to renew their flood insurance policies or who are required to purchase flood insurance as a condition for obtaining mortgages. 

FEMA has issued a Memorandum dated May 28, 2010 stating that the hiatus period is expected to end soon and setting forth guidance during the hiatus period and a national insurance agent group is urging Congress to stop the havoc of short-term NFIP extensions and address a long-term solution.  There are currently three bills before Congress for consideration; one granting NFIP a five-year reauthorization rather than the current practice of renewing the program every couple of months; another adding wind perils to NFIP flood insurance policies which appears to be opposed by the industry; and HR 4213 (the “Tax Extender Bill”) renewing the NFIP through the end of this year, which has been and continues to be tied up by bipartisan squabbling.  

Information of changes to the reauthorization status is available at http://www.fema.gov/business/nfip/index.shtm, or from your insurance agent.

   –Frances T. Mezzatesta, Certified Paralegal

NOTE UPDATE: the President has signed the National Flood Insurance Program Extension Act of 2010, H.R. 5569, which Congress passed on June 30, 2010 extending the NFIP through September 30, 2010, making it retroactive to cover the lapse period from June 1, 2010, to the date of enactment of the extension.  

Lead Paint

A Landlord’s Lament:  Lead Paint

          In January of 2008, the New Jersey Legislature passed a law, which has been codified as N.J.S.A. 46:8-28.5, requiring lead paint inspection to tenant-occupied single or two family residential properties, including two-family properties in which one unit is owner-occupied.  This requires landlords of these units to register with the New Jersey Department of Community affairs. (Certain exemptions may apply.) Although, with respect to one and two-family homes, the DCA may respond that it does not have a system of registration and investigation yet in place, nevertheless, it is the prudent landlord who submits the required information and fee to the DCA.

          Because it is part of a landlord’s best practice to maintain premises in good repair for tenants and children, registration with the DCA for lead paint is a must for landlords.

          Lead, which is found in lead-based paint, is a toxin, which may damage red blood cells, kidneys and nervous system. Lead is particularly hazardous to infants and children under the age of six because their nervous system and organs are developing.  In re Lead Paint Litigation, 191 N.J. 405 (2007).

          Under Federal regulations, landlords are required to disclose known information on lead-based surfaces before a lease takes place.  Under N.J.S.A. 24:14A-5 and -7, lead paint in dwellings is a “public nuisance” that must be removed by a landlord.  Under negligence principles, a landlord is subject to a lawsuit if the dwelling is readily accessible to children and a landlord knew or should have known of a lead paint hazard.  

          According to Ruiz ex rel. Ruiz v. Kaprelian, 322 N.J. Super. 460, a 1999 New Jersey Appellate Division case, a landlord’s warranty of habitability includes an obligation to take reasonable measures to assure that a “multiple dwelling” unit (three or more units or any group of ten or more buildings on a parcel of land) does not contain dangerous level of lead paint.  This does not mean that a landlord is absolutely liable for any injuries. Rather, a landlord may be liable if he had known or should have known of the presence of lead paint. Thus, under the Hotel and Multiple Dwelling Law, the landlord of a multiple dwelling must register with the New Jersey Bureau of Housing Inspection in the Department of Community Affairs (“DCA”).  Registration will subject premises to required lead paint investigation approximately once every five years.

          Please call us if you have any questions or need assistance with this type of matter.

          Sylvia Hall, Esq.