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.

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.

Judicial Independence….One Lawyer’s Opinion

JUDICIAL INDEPENDENCE

By: Darrell Felsenstein, Esq.  

Much has been written lately about judicial independence, following Governor Christie’s decision not to grant tenure to New Jersey Supreme Court Justice John E. Wallace.  By all accounts, Justice Wallace’s time on the Court has been nothing short of exemplary.  The New Jersey Constitution permits a Governor, after a Judge’s first seven years on the bench, to re-evaluate a Judge before granting tenure.  The standard has always been that where a Judge has displayed judicial competence and met all standards of judicial fitness that re-appointment was assured.  As eight retired New Jersey Supreme Court Justices recently stated, in protesting Governor Christie’s decision: “There is simply no question that the intent of the Framers of the Constitution: Reappointment would be denied only where a judge was deemed unfit, a standard that ensured the independence of the State’s Judiciary under the Constitution.”  This is not a question of Republican versus Democrat but of the basic framework for democracy.  Certainly, Governor Christie’s nominee, Anne Patterson, appears eminently qualified but a Judge cannot make determinations based on that day’s political whim. Politics should have no role in the substantive decisions made in court.