New Jersey Lawyers Blog

Published on: October 5, 2012

Transfer of a New Jersey Lottery License

There are steps which must be followed in a timely manner to obtain a New Jersey Lottery License and have a smooth transition during the purchase of a business.

At least 45 days before closing, the seller of the New Jersey business must send a letter to the New Jersey Lottery district office. The addresses of the district offices can be found here. The letter must include information regarding the pending sale including the seller’s name, address, home phone number, cell phone number, and work phone number, as well as the buyer’s name, address, home phone number, work phones and cell phone number, and the anticipated closing date.

Upon receipt of that letter, a New Jersey lottery agent will contact the buyer and the seller, and they will be required to meet with the lottery representative . The buyer must bring the following to this meeting:

The Lottery Division will conduct a background check on all people listed on the application.
Continue reading

Published on: September 25, 2012

New Jersey’s Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act Makes Significant Changes to Acquisition of Tenure

by Maurice W. McLaughlin

On August 6, 2012, New Jersey Governor Chris Christie signed the Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act, which had been passed by both houses of the New Jersey Legislature. The TEACHNJ Act significantly changes how New Jersey teachers and other New Jersey public school “teaching staff members” acquire tenure.

A “teaching staff member” who obtains tenure can only be dismissed or have their compensation reduced “during good behavior” for “inefficiency, incapacity, or conduct unbecoming [ ] such a teaching staff member or other just cause.” It also provides procedural safeguards before they can be fired. (However, tenure does not prevent the school district or board of education from instituting layoffs – including laying off tenured teaching staff members – for reasons of economy or reduced enrollment, provided seniority rules are followed.)

“Teaching staff members” who may receive tenure include New Jersey public school teachers, of course, but also include these positions:

principal, other than administrative principal, assistant principal, vice-principal, assistant superintendent, and all school nurses, including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services, school athletic trainer and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners, serving in any school district or under any board of education, excepting those who are not the holders of proper certificates in full force and effect, and school business administrators shared by two or more school districts.

Published on: September 24, 2012

New Jersey Teacher Effectiveness and Accountability for the Children of New Jersey (TEACNJ) Act Requires Evaluations of “Effective” or “Highly Effective” For Acquisition of Tenure.

by Maurice W. McLaughlin

New Jersey recently enacted the Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act. The TEACHNJ Act significantly changes the rules for the acquisition of tenure by New Jersey teachers and other New Jersey public school “teaching staff members.” The TEACHNJ Act changes the time period of service prior to acquiring tenure, sets up uniform evaluation requirements as a prerequisite to obtaining tenure, and drastically changes the process for challenging discipline against tenured teaching staff members.

Tenure for a “teaching staff member” means she can only be dismissed or reduced in compensation “during good behavior” for “inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause,” although tenured teaching staff members can still be laid off for economic reasons or declining enrollment provided that seniority is honored. It also provides tenured teaching staff members with procedural safeguards before they can have their compensation reduced or be fired.

“Teaching staff members” for tenure purposes include:

Teachers
Principals, other than administrative principal
Assistant principals
Vice-principals
Assistant superintendents
All school nurses, including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services
School athletic trainers
Such other employees as are in positions which require them to hold appropriate certificates
School business administrators shared by two or more school districts.

Schools are required to establish a school improvement panel and mentorship program for new teachers during their first year which the teacher must complete. The panel oversees the mentorship program. It must be “research-based” and enhance teacher knowledge and strategies in the core curriculum. It must pair first year teachers with effective, experienced teachers. The board must provide teaching staff members with ongoing professional development opportunities.
Continue reading

Published on: September 17, 2012

New Jersey Division of Taxation Bulk Sales Requirements

by Jennifer C. Meusel

New Jersey’s bulk sale law was enacted by the New Jersey legislature in 1995 to protect purchasers of business assets. The purchaser of business assets is required to notify the New Jersey Division of Taxation of the transaction at least ten days before the sale by completing and filing a form C-9600 along with a copy of the contract for sale. The form C-9600 must be sent by certified mail to the State of New Jersey, Division of Taxation, Attention: Bulk Sales Section, P.O. Box 245, Trenton, NJ 08695-0245, or it can be sent by overnight mail to the State of New Jersey, Division of Taxation, 50 Barrack St, Trenton, NJ 08695, Attn: Bulk Sale Section. There is no fee for filing the form.

The New Jersey Division of Taxation then has ten business days to research and determine what amount of money must be held in escrow by the purchaser’s attorney at the closing. The state tax liabilities of the seller are then paid from the escrow. A purchaser, by complying with the Bulk Sale Law, ensures that they will not become responsible for the seller’s New Jersey tax liability. After the tax payments requested by the state are paid, the Division of Taxation will issue a tax clearance letter which authorizes the release of any monies remaining in escrow. Upon receipt of the tax clearance letter, the balance of the monies held in escrow can be released to the seller. If the Division fails to respond to the C-9600 within ten business days of receipt of same, the purchaser will not be held responsible for the seller’s state tax liabilities.

If the purchaser fails to notify the New Jersey Division of Taxation of a sale which is subject to the bulk sales notification requirements, then the purchaser becomes liable for the New Jersey State tax liabilities of the seller if the seller does not pay. If the purchaser fails to notify the state, the Division of Taxation can file judgment, levy and seize the purchaser’s assets. However, if the seller refuses to cooperate with the Division of Taxation, the Division will not penalize the purchaser for the seller’s refusal. While complying with this law is an added step in the purchase of a business, it is an excellent mechanism for protecting the purchaser. Purchasers of business assets should insist on compliance with the terms of the New Jersey Bulk Sales Law. It is an essential term of any contract for sale of business assets.
Continue reading

Published on: September 12, 2012

How New Jersey Homeowners Can “Cram-Down” or “Strip-Off” Second Mortgages in Chapter 13 Bankruptcy

by Boris Peyner

cramdown New Jersey homeowners who file for chapter 13 bankruptcy protection may be able to cease paying their second mortgages if their homes are “underwater.”

When the amount that a homeowner owes on her mortgages is more than the home is worth it is considered “underwater.” Relief is available to New Jersey “underwater” homeowners through a Chapter 13 bankruptcy “cram-down” or “strip-off.” New Jersey homeowners can petition the United States Bankruptcy Court and request that their mortgages be cram-downed to the equity in the homes and the remainder of the loans stripped-off.

This means that homeowners who have multiple mortgages on their primary residence can take their mortgages and make them unsecured debt, thereby stripping-off all junior liens. This process applies to all subsequent mortgages as well. Therefore, second and third mortgages, and so on, would no longer operate as a lien on homes. Since it is then unsecured debt only a fraction will be repaid, and the remainder will be eliminated altogether.

Published on: September 4, 2012

New Jersey’s Construction Industry Independent Contractor Act Imposes Severe Penalties on Misclassification of Employees

by Maurice W. McLaughlin

There are severe civil and administrative penalties for misclassification of workers who should actually be employees as independent contractors. If a worker is classified as an employee, the employer must pay approximately an additional 7.5 percent of her salary in payroll taxes, as well as workers compensation insurance, and the benefits which other employees get. This gives businesses a strong incentive to classify workers as independent contractors. However, this has long been illegal under both federal and New Jersey Employment law.

New Jersey has found this practice to be widespread in the construction industry, depriving workers of benefits, social security taxes, and forcing the employer to pay self-employment tax, or the employer’s portion of the payroll taxes. Additionally, the New Jersey Legislature has found that this puts businesses currently classifying workers as employees at a competitive disadvantage with those whose do not because of the higher costs they bear. New Jersey therefore enacted the New Jersey Construction Industry Independent Contractor Act.
Continue reading

Published on: August 31, 2012

New Jersey Living Wills

by Jennifer C. Meusel

Under New Jersey estate planning law, a living will, which is legally called an advanced directive, allows a person to give instructions for what care she is to receive her health is extremis. A living will must be in writing, signed and dated before two adult witnesses who attest that the person signing the advanced directive is of sound mind, and is not under duress or undue influence. Alternatively, it may be signed, dated and acknowledged before a New Jersey notary public or a New Jersey attorney.

Under law New Jersey law, a living will becomes effective when it is provided to the physician who has determined that the patient does not have the capacity to make her own health care decision. If at any point the patient regains the ability to make her own health care decisions, the patient regains the legal authority to direct her own care.

The main purposes of the living will are to allow a person to give her instructions or her wishes for when she is unable to do so herself and to appoint an agent to make decisions when she is unable to make her own decisions. The living will may direct that certain life-sustaining treatments be withheld. If, for example, the patient has an incurable or irreversible, severe mental or severe physical condition; is in a state of permanent unconsciousness or profound dementia; is severely injured; and in any of these cases there is no reasonable expectation of recovering and regaining any meaningful quality of life, then the living will may direct that life-sustaining treatments be withheld. New Jersey law provides that the attending physician, if it is consistent with the terms of the advance directive, may issue a “Do Not Resuscitate” order.

There are two types of advanced directives: an instruction directive and a proxy directive. These can be combined into one document. A person can chose to execute both types or either one standing alone.
Continue reading

Published on: August 27, 2012

Landlord-Tenant Issues: Illegal Apartments

by Pauline M.K. Young

Virtually all residential landlords in New Jersey are required by law to register their apartments with the town in which the property is located. The only exception is when the owner of the apartment building lives in the building and there are less than three rental units in the building.

Further, all apartments must meet local zoning ordinances. While local zoning ordinances vary from town to town, illegal apartment zoning issues typically come up when a landlord rents out an attic, basement, or garage unit. Town ordinances are designed to maintain the health and welfare of the citizens and, as a result, illegal apartments typically also pose some significant health or safety risk. For instance, an attic unit may create a dangerous fire hazard if it does not have an accessible fire escape, while basement and garage units may fail to have the proper light or ventilation causing significant health concerns.

How do you know if you are in an illegal apartment? Many times tenants do not discover that their apartment is illegal until a town official tells them. However, in most cases a tenant suspicious of an illegal apartment can inquire with the local municipality’s zoning board. Some towns where illegal apartments are prevalent, such as Jersey City, even have websites where citizens can report suspected illegal apartments online.
Continue reading

Published on: August 21, 2012

The Purpose of a Power of Attorney

by Jennifer C. Meusel

Attorneys often focus on the importance of an estate plan and having a will to minimize costs and conflicts when a person dies. But it is just as important to plan for problems that may occur during people’s lives if they are unable to manage their own affairs, particularly the serious problems that can occur as the result of illness or incapacity.

A durable power of attorney can be invaluable in such situations. A durable power of attorney authorizes one person to handle all non-medical matters for another. It can also be limited as desired by the principal (the person who is signing the power of attorney, the grantor of the power). It is a durable power of attorney because it remains in effect even if the grantor becomes incapacitated. The durable power of attorney can be revoked at any time as long as the grantor has not become incapacitated.

In the event a person becomes incapacitated, the agent appointed in the durable power of attorney can take care of their affairs. The durable power of attorney thus eliminates the need to apply to a court to declare a person incapacitated so that a guardian can be appointed. The application for guardianship is a costly, time consuming and emotionally draining experience. One simple document, the durable power of attorney, properly drafted and executed saves the principal and their loved ones from this difficult and expensive proceeding. It also ensures that the principal gets to chose who will act on her behalf if she becomes incapacitated, rather than having the existing laws and a court make that determination. It is also recommended that the principal designate a successor agent, someone who will take over as the agent if the first named agent is unwilling or unable to fulfill that role.
Continue reading

Published on: August 20, 2012

A New Jersey Residential Tenant’s Rights

by Boris Peyner

New Jersey landlord-tenant law offers residential tenants a great deal of protection to ensure that people have a secure and safe place to live, provided that tenants comply with their duties and responsibilities.

A landlord/tenant relationship typically begins with the signing of a lease. The lease is a contract – a legal document which specifies the rights and obligations of both the landlord and tenant to one another.

In a typical lease, tenants are required to pay rent and a security deposit, take good care of the premises, and comply with all laws. Often tenants are required to pay the utilities and request permission from landlords before obtaining a pet or altering the premises by, for example, repainting rooms. Landlords, on the other hand, have the responsibility to provide tenants with safe premises that are supplied by water, heat, and proper facilities for installation of a refrigerator.

Beyond their contractual responsibilities, landlords and tenants have other responsibilities to each other. However, the responsibilities of New Jersey landlords far exceed those of tenants. For example, tenants have the right of “quiet enjoyment.” Landlords must ensure that New Jersey tenants can live in their premises without any disturbances from other tenants or the landlord.

Further, New Jersey does not allow landlords or police officers to evict tenants by locking them out of the premises. A “self-help” eviction is illegal and in New Jersey is considered a criminal offense. Evictions may only be completed by special court officers with a warrant for removal issued by a judge.
Continue reading