An attorney representing Cheskel Brach, the landlord of Prime Apartments, has filed Opposition to the tenants filing in Court for emergent relief which seeks to take the building out of the hands of its landlord and have a receiver appointed to manage the building instead.
Mr. Brach's filing highlights that the appropriate venue to adjudicate this entire matter would be before Lakewood Township's Rent Control Board as they are vested with jurisdiction to hear hardship increase applications - however, the Township Committee has abolished the Board, leaving him with no appropriate venue to establish the rent so that he can avoid operating a severe financial loss.
As first reported here on FAA News, 60 tenants of Prime Apartment tenants have served their landlord and his property manager with a Superior Court lawsuit alleging a long list of illegal rent increases and associated harassment, intimidation and retaliation.
The tenants are Alexander Sternbuch, Shmuel and Rochel Bogart, Dovid Balter, Shmuel Banker, Aaron Beer, Yaakov Cohen, Moshe and Feigy Eisemann, Ezra Esses, Tzvi and Zipora Feifer, Chezky Feigenbaum, Yehoshua Finkel, Yisroel Friedman, Ashi Fuchs, Boruch Gellis, Yaakov Glustein, Yonah Goldberg, Yaakov Gordon, Esther Gorelick, Elozor Greenberger, Shmuel Grunhut, Yehuda Gugenheimer, Alter Halberstam, James Holtzberg, Yisroel Kanarek, Dovid Kaplan, Kirnos, Zev Kramer, Abraham Leibiker, Yehuda and Yehudis Marcus, Steven Meisels, Yisrael Mordowitz, Nochum Naiman, Chayala and Moshe Olshin, Dovid Paskesz, Meir Poltzer, Tzvi Puretz, Shlomo Reidel, Mordechai Reis, Menachem Rosenblum, Dov Rosenman, David Rothstein, Yaakov Schechter, Chaim Schwab, Chanoch Shapiro, Temima and Zachary Shemesh, Naftoli Simon, Yosef and Zizi Simon, Mordechai Snyder, Samuel Tepfer, Yisroel Weiss, and Moshe Wilner.
Defendants are Prime Apartments, which is owned by Cheskel Brach, and Rushmore Management, the property manager.
Following the filing of this lawsuit, as previously reported here on FAA News, Cheskel Brach, the landlord of Prime Apartments, served the tenants with a Hasra'ah (a warning) from the Bais Din of the Central Rabbinical Congress of the U.S.A. and Canada (the CRC).
Additionally, as previously reported here on FAA News, Bais Din Zedek which is under the auspices of Rav Yisroel Knopfler, has also authored a Hasra'ah against the tenants.
As previously reported here on FAA News, the landlord has answered the lawsuit, alleging that the tenants are the ones in breach of their leases either because they failed to pay their rent, a rent increase, had too many occupants residing in the unit and/or by occupying the unit in a manner inconsistent with the terms of the lease agreement, including by taking up storage units that are not in their lease and they are not paying for the storage.
The landlord is further counter-claiming that the lawsuit was filed or pursued in bad faith, solely for the purpose of harassment, delay or malicious injury, and the tenants knew or should have known that the claims were without any reasonable basis in law and could not be supported by a good faith argument.
Moreover, the tenants violated the terms of their lease agreements by failing to pay rent and over-occupying units, yet they continue to reside in their apartments in clear violation of those terms, thus unjustly enriching themselves.
As recently reported here on FAA News, just days ago, the ongoing litigation regarding got cranked up a whole notch more contentious when Attorney Ian Goldman representing the tenants filed in Court for emergent relief seeking to take the building out of the hands of its landlord and have a Receiver appointed to manage the building instead!
In their Order To Show Cause filing, the tenants are alleging that the landlord is refusing to complete the HUD paperwork for tenants even though this is a HUD approved building. This is against public policy and tenants will be irreparably harmed if relief is not granted.
Additionally, the landlord and property manager are incorrectly advising tenants that the property is not under rent control.
They are seeking to impose an increase of $688 per month per tenant - a 38% increase above the base rent of $1,795.
They are unilaterally terminating lease agreements and increasing rent if tenants do not comply with the increase.
Moreover, they have commenced the eviction process and are threatening evictions for failure to pay the agreed upon illegal and unconscionable unilateral rent increase.
The landlord has advised the tenants that he filed an application to Lakewood Township's Rent Control Board to adjudicate the matter, however, the Township Committee has already abolished this Board.
The day after the lawsuit was filed, the landlord removed the furniture from the lobby and closed access to the storage units, telling the tenants that "storage is not included" in the leases.
Despite the tenants having the right of storage use as advertised, and in unlawful retaliation of the tenants' lawful and protected objections to the Landlord's improper attempts to renege on valid lease agreements, the landlord and property manager have started removing tenants' possessions from common storage areas without their permission. They are also in the process of causing significant damage to the tenants' possessions.
The repeated assaults against the tenants, beyond any reasonable doubt - especially as these assaults and harassment were escalated within 24 hours of the filing of this lawsuit - show that the landlord and property manager are trying to constructively evict the tenants.
Just because Mr. Brach overpaid for a property does not give him permission to take these egregious, unlawful, and illegal actions, especially as the contracts he prepared with the tenants expressly stipulate that he will not raise rents more than 5% at renewal and that he will be bound by Lakewood rent control.
Should the Court not step in, immediate and irreparable harm will continue in the form of not accepting HUD applications, unlawful evictions, damage to quality of life, harassment, damage to credit reports, and damage to reputation.
The tenants also emphasized to the Court that the removal of the furniture from the lobby (which, shockingly, was done on a Friday night!) is not simply act to "minorly inconvenience" the tenants, but more so to intimate and harass them into vacating their apartments so the landlord can then start over with new tenants at an even higher rent amount.
The Order To Show Cause filing seeks emergent relief for the Court to "evict the property owner" and hand over complete possession of the building to a Receiver.
The Receiver shall manage and operate the building, collect rent, maintain the premises, and all other things necessary for the due care and management of the property.
Any persons who would need to be hired to do such services such as accounting, marketing and management, etc, must be "not insiders of or related to" the current landlord and property manager.
The Receiver is to use the rent for his salary and to use any remaining funds to pay the interest on the mortgage.
Accordingly, the landlord and property manager are to be required to hand over all keys to the property to the Receiver. They are to be further enjoined from collecting or accepting any rent from the tenants.
Additionally, the legal filing seeks for the landlord and property manager to fully execute all HUD paperwork submitted by tenants; to temporarily cease any and all evictions; permit unfettered access to the storage access; and to place the lobby furniture back in the lobby.
Attorney David A. Rubin Esq. representing Prime Apartments today filed Opposition to the Order To Show Cause.
Mr. Rubin highlights that the appropriate venue to adjudicate this entire matter would be before Lakewood Township's Rent Control Board as they are vested with jurisdiction to hear hardship increase applications - however, the Township Committee has abolished the Board, leaving this landlord with no appropriate venue to establish the rent so that he can avoid operating a severe financial loss. "Lakewood needs to address the rent increase."
The tenants filed the instant order to show cause, seeking inter alia, injunctive relief, the appointment of a rent receiver, and stay of eviction proceeds.
The instant Order to Show Cause is nothing more than a red-herring attempt to delay the landlord's
ability to proceed with its rental hardship application as well as
necessary eviction applications.
In reality, the landlord should be given the opportunity to complete their hardship increase, proceed with basic evictions where tenants violate the Anti-Eviction Act and absolutely not have their operations turned over to a rent receiver.
The tenants, via general allegations and assertions, fail to demonstrate how their request for relief should be granted.
The appointment of a receiver is rare.
The tenants completely fail to cite to any case law which merits the appointment of a receiver. Nothing before this honorable court indicates that the landlord has failed in his duties.
Instead, it wholly appears that the tenants are simply unhappy with a rental increase, and want to usurp the landlord's ability to own and operate property which they purchased.
In fact, however, the rent increase is necessary simply so that the landlord can in fact operate the property.
The tenants are also requesting to stay evictions proceedings based upon the claim that the proposed rent increase is without merit.
The allegation that they are being constructively evicted represents a complete failure to understand the Anti-Eviction statute and governing law.
They further attempt to assert that the rent increase, no matter how described, creates a constructive eviction.
This argument is premature at this time.
These matters all come before the Court pursuant to complaints seeking eviction for failure to
pay a rent increase.
The statute that governs complaints for eviction
where a tenant has failed to pay an increase in rent is N.J.S.A. 2A:18-61.1(f), which creates a valid
ground for eviction when "the person has failed to pay rent after a valid notice to quit and notice
of increase of said rent, provided the increase in rent is not unconscionable and complies with any
and all other laws or municipal ordinances governing rent increases," However, Fromet Properties
is the governing case law to matters regarding rent increase. More importantly, under that case, it is
the LANDLORD that has the burden of establishing the proposed rent increase
is "not unconscionable."
Here, the mere fact that the landlord is seeking a rent increase based upon
hardship does not constructively evict the tenants. As held in Fromet, in the event of an eviction, the landlord will carry the burden to prove whether the increase is unconscionable. At this point, the question of the validity of the rent increase is not
ripe and does NOT give a basis for the relief currently being sought in the instant motion.
Finally, the tenants fail to carry their burden for injunctive relief under the remaining claims.
As established by the Supreme Court in the 1982 case known as
Crowe v. DeGioia, the party seeking the preliminary injunction must show: (a) that irreparable harm will
ensue if the application is not granted; (b) that the legal right underlying the applicant’s
claim is settled; (c) that material facts are uncontroverted and demonstrate a reasonable
probability of Plaintiff’s success on the merits; and (d) that the relative hardship of the
parties militates in favor of granting the injunction. The movant bears the burden of
satisfying this four-part test by clear and convincing proof.
The tenants fail to prove the first prong as there is no showing of irreparable harm.
Let it first be stated that the inherent nature of eviction in and of itself does carry harm
to those who are involved. However, a reading of the record before the Court should temper this
extreme viewpoint. The first prong of the Crowe factors states that “irreparable harm will ensue
if the application is not granted." The Court should begin its analysis with a review of the procedural posture of this case. Here, the instant filing is premature and there is
simply no harm which can be found at this current state of the litigation.
Additionally, the tenants fail on the third prong as they cannot establish clear and convincing evidence of success on the merits.
Should the court find that the harm is imminent, the relief being sought still must be denied
as the tenants are simply unable to succeed on the merits of their arguments. To that end, there is
simply no ability for them to succeed on the second count of their request for injunctive relief.
While Prime Defendants have not adequate time to address the allegations in Plaintiffs’
motion, it is apparent based upon statute and case law that the requested relief falls well short.
Consequently, Prime Defendants request the denial of the instant application and allow the matter to be fully briefed, vetted and or responded to instead of engaging in fruitless litigation.
Mr. Rubin also noted that this lawsuit was filed as a "class action," for which he will be filing a motion to oppose at another time.
Judge Mark Troncone has scheduled oral arguments for today, Wednesday afternoon.
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3 comments:
If the landlord was really being honest that he wants to apply to the rent control board for a hardship increase, but can't because Menashe Miller unofficially abolished the Board - then all he needs to do is file for a "Writ of Mandamus" with the court against the township committee to fulfil its obligation under the township code and reinstate the Board. This way he can have the opportunity he's begging for, to present his case for the 38% rent increase at the proper venue. It's really not a big deal.
It should be expected that, due to the ongoing saga, the court would act immediately to order the committeemen to get their act together, especially because no party would object.
The big question of the year is why hasn't the landlord actively pursued this very simple remedy?? I don't believe that any speculation is needed to know the answer..
Well said.
I'll have to first check with my landlord buddy from Westgate to see if it's okay with him for the committee to reappoint the rent control board. If it's not, then I don't care if the Prime tenants and landlord keep on fighting.
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