New Jersey Lawyers Blog

Published on: October 7, 2013

The New Jersey Smoke Free Air Act

New Jersey passed the Smoke Free Air Act in 2006. The Act is part of New Jersey’s effort to eliminate tobacco use because it is a significant public health threat. The United States Surgeon General has declared that secondhand smoke is a serious health hazard that leads to premature death in children and non-smoking adults.
The Smoke Free Air Act serve an important public purpose: Banning smoking in indoor “workplaces” and “public access” places. The Act ensures that people have same smoke-free workplaces and citizens can breathe smoke-free air in public places. Almost every place outside the home is affected, except for registered cigar bars.

In New Jersey, smoking is banned in places such as offices, restaurants, factories, bowling alleys, stores, malls, hotels (twenty percent of the rooms may be used for smoking), and private clubs. It is banned outside grammar schools and high schools. Smoking is also prohibited in workplaces and within twenty-five feet of a workplace. A “workplace” includes any area where some type of service or labor is performed, regardless of how much time workers spend working. “Workplace” also includes locations were volunteer work is performed. The Act applies to smoke break areas outside of the building, including outdoor patios and decks that are attached to a building

Recently an amendment was passed which bans the use of an electronic smoking device (i.e., “e-cigarette”) in indoor public places and workplaces. New Jersey is the first state to pass the “e-cigarette” law.
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Published on: October 4, 2013

New Jersey Home Warranty Program

by Boris Peyner

New Jersey provides new home owners with a warranty under New Jersey’s New Home Warranty and Builders’ Registration Act (“HOW”). The Act provides that newly constructed homes must conform to certain construction and quality standards and provide buyer of the new home with insurance-backed warranty protection in the event any of the standards are not met. Simply put, the Act provides that every new home sold in New Jersey comes with a warranty.

Builders of new homes must register with the New Jersey Department of Consumer Affairs to be permitted to engage in the business of building new homes. Builders are then required to provide a three-tiered warranty program which provides coverage and protection against defects.

Warranty coverage extends to defects caused by faulty workmanship and defective materials during the first year of ownership. The one year begins to run on either the first day of occupation or the settlement date, whichever is sooner. Additionally, during the first two years new home owners have a warranty that covers defects caused by faulty installation of heating, electrical, plumbing, and cooling systems. The Act, however, does not extend the coverage to appliances beyond the warranty provided by the manufacturer. Finally, the Act provides for warranty coverage to major construction defects of the home for ten years.

At first glance the Act appears to provide homeowners a cost-savings means of resolving disputes concerning construction defects. However, in reality the Act makes it difficult for homeowners to resolve construction defects. For example, “major construction” defects have been interpreted by the courts very stringently. Generally, the act affords no protection unless the new home is practically collapsing. Additionally, common problems such as leaks, mold, and excessive settling are not covered.
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Published on: October 2, 2013

Joint Bank Accounts in New Jersey

by Jennifer C. Meusel

It is a fairly common practice for people to open joint bank accounts. Often joint accounts are held by spouses, and the funds do actually belong to both individuals. However, sometimes these accounts are opened for the convenience of allowing a child or to access funds and write checks to pay bills, or as a way to have ownership of the funds pass to the surviving joint account holder upon death. While this is an effective and simple way to give someone else control of your assets of have the funds pass to another upon death, there are problems associated with joint accounts which should be considered before opening a joint account.

1) The joint account holder has unfettered access to the funds in the account. There is no oversight over the way the funds are used. Both joint account holders can utilize the funds for any reason; there is no need for permission – either account holder can withdraw of any portion or all of the money in the account for any purpose.

2) A joint bank account is at risk from legal actions by the creditors of either account holder. If the joint account holder has a judgment entered against her, all the funds in the joint bank account can be attached and used to pay the judgment. For example, a one account holder gets divorced and his spouse claims a right to some of the funds in the account, then the account holder who deposited the funds in the joint account would need to go to court to prove that the money does not belong to the divorcing account holder. Another example is if the other joint account holder is sued, loses and does not pay the resulting judgment.

3) Upon the death of either account holder, the money would indeed pass to the surviving joint account holder. However, the money remains subject to estate and inheritance taxes. If the individual who passes is not the individual who contributed the funds to the account, the account would nonetheless be taxed as part of the deceased account holder’s estate. In other words, the survivor would have to pay inheritance tax even if she deposited the funds in the first place. Depending on the amount of assets in the account, the relationship between the two joint account holders, and the value of the decedent’s total estate, this can result in a significant death tax burden which could have been avoided.
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Published on: September 27, 2013

Minimum Wage & Overtime in Employment Law

by Pauline M.K. Young

The minimum wage in New Jersey is $7.25 per hour. New Jersey law requires that all “non-exempt” private sector employees must receive “overtime” pay – one and a half times their normal hourly rate – for all time worked in any given week in excess of forty hours.

While New Jersey, like all states, has the option of providing a higher minimum wage, New Jersey’s current minimum only just meets the federal requirement of a $7.25 per hour minimum wage, which went into effect July 24, 2009.

Exempt employees are those who work in executive, administrative, or professional capacities. In any of these categories, the employee must made at least $455 per week to be exempt from overtime requirements.
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Published on: September 24, 2013

Fair Credit Reporting Act

by Boris Peyner

The health, stability, and strength of a nation’s economy is directly linked to its banking system. The health, stability, and strength of a nation’s banking system is directly related to a fair and accurate credit reporting system. Congress realized how damaging inaccurate credit reports can directly impair the efficiency of the banking system and therefore passed the Fair Credit Reporting Act (“FCRA”) in 1970. This provides strong protection for New Jersey residents in financial difficulty.

The Fair Credit Reporting Act was enacted to eliminate abusive debt collection practices that contributed to personal bankruptcies, martial instability, loss of jobs, and invasions of an individual’s privacy. The Act’s purpose is to ensure fair debt collection.

The Fair Credit Reporting Act prohibits debt collectors from communicating with a debtor, in connection with a debt, if the debt collector knows the consumer is represented by an attorney. The FDCPA specifically prohibits debt collectors from engaging in any harassing, oppressive, or abuse conduct in connection with debt collection. For example, repeatedly calling a person with the intent to annoy, abuse, or harass that person has been found to violate the act.

The act also prohibits debt collectors from using any false, deceptive, or misleading representation to collect a debt. For example, a misrepresentation of the legal status of the debt or use of any false representation to collect the debt is a violation of the FDCPA.
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Published on: September 20, 2013

Harassment and Anti-Discrimination Policies

by Pauline M.K. Young

New Jersey protects employees from discrimination and harassment in employment when the discrimination or harassment is based upon a protected type or classification of person. For instance the following classes are protected by New Jersey’s Law Against Discrimination: age, race, creed/religion, color, national origin (your family’s country of birth), nationality (your country of birth or where you are a citizen), and service in the United States armed forces.

The Law Against Discrimination also protects people from discrimination based upon their gender, pregnancy, sexual orientation, marital status, familial status (though typically only with respect to housing discrimination), civil union status, domestic partnership status, gender identity or expression. Further, it also protects classifications based upon mental or physical handicaps or disability, perceived disability, AIDS/HIV status, genetic information, atypical hereditary cellular or blood trait, refusal to submit to a genetic test or make available the results of a genetic test to an employer, and any other characteristic protected under applicable federal, state or local laws or regulations.

The Law Against Discrimination not only covers employment practices, but also prohibits unlawful discrimination in housing, credit and business contracts, and places of public accommodation.
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Published on: September 16, 2013

Personal Injury Protection Benefits Under No Fault Auto Insurance

by Boris Peyner

New Jersey requires each driver to have an auto insurance policy with “personal injury protection” or “PIP” benefits. As part of New Jersey’s no-fault auto insurance legislation enacted in 1972, the Legislature required all auto insurance policies to provide “personal injury protection” or “PIP” benefits.
What is Personal Injury Protection?

PIP was designed to reduce litigation and bring down insurance rates by providing that a driver’s own insurance policy will pay medical expenses for the insured’s own injuries sustained in auto accidents regardless of fault. Standard PIP policies provide up to $250,000 of medical coverage, plus limited benefits for income continuation, essential services, and death benefits. Coverage may be increased for additional fees.

If you are injured in an accident you must notify your insurance company to begin receiving benefits.

What benefits does Personal Injury Protection provide?

A PIP policy will typically pay all reasonable hospital, medical, and related expenses incurred for treatment of injuries sustained in an accident. Typically, PIP benefits will pay for doctors, chiropractors, dentists, psychologists, therapists, and skilled nurses.
You will still be required to pay some medical bills because most insurance policies contain a deductible. The deductible can range anywhere form $250 up to $1,000. In addition, PIP is only responsible for eighty percent of your medical bills for the first $5,000. You are responsible for the remaining twenty percent of the medical bill. PIP will then pay for all remaining medical bills in excess of $5,000 up to the policy limit.
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Published on: September 9, 2013

Condominium Associations

by Pauline M.K. Young

Community associations are an important part of New Jersey’s housing environment. There are three main types of community associations in New Jersey: condominium associations, cooperative boards (“co-ops”), and homeowners associations. Condominium associations are the most common.

When a person buys a condominium, they are buying title to the property unit, such as an apartment or townhouse. However, title to the “common elements,” such as the land, the building exterior, recreational facilities, and parking lots or spaces, are held by the buyer together with all the other owners in common throughout the condominium association. When an new owner buys a unit, she automatically becomes a member of the condominium association, which exists to maintain the common elements. This membership is typically not optional.

The association is responsible for the administration and management of the condominium property, meaning the areas and activities of common interest to the unit owners. The operations of the condominium association are run by its board of trustees, made up of owners who are elected by the association membership. The association must maintain accounting records in accordance with generally accepting accounting principles and must be made available for inspection by unit owners at reasonable times. When a condominium association is first created, owner-control of the board is phased in during development of the property, and the owners take after 75 percent of the units are sold.
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Published on: August 28, 2013

Drafting New Jersey Arbitration Agreements is Important if at a Later Date a Dispute Arises

by Boris Peyner

In New Jersey nobody can be forced to arbitrate a dispute unless there is an agreement to do so beforehand. Arbitration agreements are controlled by the Federal Arbitration Act and the New Jersey Arbitration Act.

Arbitration is a process that utilizes a neutral third party to decide a dispute. Disputes are submitted to an arbitrator who makes a binding decision. An arbitrator will review the evidence and then render a binding decision. The decision can then be entered as a judgment by a court and enforced by the Sheriff.

Parties can agree to arbitrate a dispute even after litigation is filed. Arbitration is typically less expensive and faster than litigation. Discovery of information between the parties, however, is greatly reduced, typically limited to the exchange of relevant documents, thereby further reducing costs. Arbitrations themselves are conducted like trials, but are less formal and in private. Arbitrators are then compensated for their time by the parties. Unfortunately, arbitration rulings, generally, cannot be appealed, but that finality can make arbitration less expensive.

Parties to a dispute have considerable discretion about the terms and conditions of arbitration in their Agreement to arbitrate. For example, the parties can decide if the dispute will be submitted to one arbitrator or multiple. The parties can also decide to select a particular arbitrator, or have a neutral third-party select the arbitrator.

However, one thing that is clear in New Jersey is that once the parties agree to arbitrate a dispute, they must do so. In Petersburg Regency, LLC v. Selective Way Insurance Company, the litigants were three years into a civil litigation. The litigants then decided to arbitrate the dispute but did not prepare a written agreement that dictated the specific terms and conditions of the arbitration. When the arbitration was about to proceed the parties had a disagreement to some key terms and conditions and demanded that the arbitration be remanded back to the trial court. Initially the trial court determined that there was “no meeting of the minds” and the parties were required to litigate. On appeal, however, the Appellate Division of New Jersey’s Superior Court ordered the case back to arbitration.
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Published on: August 26, 2013

New Jersey Court Rules – Changes for 2013 and 2014

by Pauline M.K. Young

New Jersey’s Constitution tasks the State’s Supreme Court with creating rules to govern the practices and procedures in the New Jersey court system. The first set of rules went into effect on September 15, 1948.

Every year thereafter, the Supreme Court organizes an annual Judicial Conference to consider new amendments and improvements to the Court Rules. Two comprehensive revisions have previously taken place in 1953 and 1969. However, more minor revisions and amendments are made as deemed appropriate and practical. Changes are made at least once every year.

Recently, the Supreme Court’s Revision Committee has made several amendments
which will take effect on September 1, 2013. It is important for attorneys to be aware of and comply with these rules to avoid any filing issues with the court. While many amendments have been made, the following are some of the amendments more widely applicable to civil cases.
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