S2074

SENATE, No. 2074

STATE OF NEW JERSEY

INTRODUCED MAY 8, 1997

By Senator LaROSSA

An Act providing for the forfeiture of abandoned property and supplementing Title 2C of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Legislature hereby finds and declares that:

a. Many of the municipalities in the State have been plagued by the existence of buildings which are unoccupied and have been abandoned by their owners, being left to deteriorate and to become a hazard to public safety;

b. While the State’s largest municipalities were the center of manufacturing and commerce from the advent of the industrial revolution to the Second World War, and were also the major population centers of the State, the subsequent decline of urban manufacturing after the war resulted in the movement of large numbers of people to suburban areas, ending the role of many large municipalities as the primary residential centers of the State’s population;

c. While there remain in many urban areas viable housing stock and commercial buildings, there are also many buildings which have been abandoned and left to decay by their owners because of their decline in economic value, causing urban blight and providing a disincentive for the entry of new capital to revitalize the cities;

d. Many of these abandoned buildings have become sites for criminal activities, are infested with vermin or toxic substances, or have become so structurally unsound that they present a substantial public hazard and make surrounding properties even more undesirable for development for residential or commercial use;

e. Municipalities have often been unsuccessful in their attempts to induce owners to maintain their properties in a manner which would ensure that they are inaccessible to criminal elements or vandals who endanger the well-being of the persons living in surrounding properties because there is no effective sanction available to municipalities to force compliance with municipal ordinances; and

f. While municipalities have authority to demolish such buildings, the cost of demolition is substantial and cannot therefore be employed on a scale which effectively eliminates a significant number of abandoned properties.

2. It is the purpose of this act to provide municipalities with an effective means of forcing irresponsible property owners to mitigate the hazards posed by buildings which are sites of criminal activity or which pose an imminent, substantial, and continuing threat to the public welfare by making the refusal to do so a criminal offense.

3. As used in this act, “abandoned property” means a building of 15,000 square feet or less which: has been unoccupied or unused by the owner or lessee for a period of five years or longer; is the site of toxic or environmentally dangerous hazards; has suffered such structural damage or deterioration so as to render it uninhabitable and a danger to the public; or otherwise presents an imminent and substantial hazard to the public health or welfare.

4. Notwithstanding any other law to the contrary, any municipality may, upon the complaint of any person, including a municipal officer, cause to be investigated any abandoned property. Upon a showing of probable cause that the property represents a danger to the public health or welfare, the municipality may obtain an order from the Superior Court to declare the property a major public hazard.

5. a. Within ten days of the receipt of such an order, the municipality shall send a notice to the owner of record, by certified mail, return receipt requested, that the property has been declared a major public hazard. The notice shall also be published in a newspaper of general circulation in the county in which the property is located, which shall constitute public notice. The published and mailed notices shall identify the property determined to be a major public hazard by block and lot number and the street address. The tax collector of the municipality shall also send a notice by regular mail to any mortgagee, servicing organization, or property tax processing organization that receives a duplicate copy of the tax bill pursuant to subsection d. of R.S.54:4-64. When the owner of record is not known and cannot be ascertained by the exercise of reasonable diligence by the tax collector, notice shall not be mailed but shall instead be posted on the property in the manner provided for in section 5 of P.L.1942, c.112 (C:40:48-2.7).

b. The mailed notice shall contain a statement of the factual basis for the municipality’s finding that the property is a major public hazard and a copy of the court order obtained by the municipality which declares the property a major public hazard. A copy of the mailed or posted notice shall also be filed by the municipality in the office of the county clerk or register of deeds and mortgages, as the case may be, wherein the property is located. The notice shall contain a statement of the actions which must be taken by the owner to remediate the property’s status as a major public hazard.

6. In requiring remediation of the property as a major public hazard, the municipality may order that the owner undertake any or all of the following:

a. The elimination of any infestation on the property;

b. The remediation of any toxic or environmental hazard to a degree that it eliminates danger to public health;

c. The obstruction of every means of ingress and egress to the structure;

d. The creation of a barrier to public access to the property;

e. The shoring up of any elements of the structure which render it liable to collapse;

f. If the structural damage is severe to the degree that it is not remediable, that the structure be demolished.

7. a. Any owner of a property declared to be a major public hazard may challenge the status of the property in a proceeding before the court by filing an appeal with the court within thirty days, except that an owner of a property whose identity is not known to the municipality may file an appeal with the court within a period not to exceed forty-five days. For good cause shown, the court may accept a late filing of the appeal. The court shall schedule a hearing on the appeal within thirty days of the receipt of a notice of appeal. The sole ground for an appeal shall be that the property is not a major public hazard.

b. The owner of the property may appeal an adverse determination of the court in the appeal filed pursuant to subsection a. of this section to the Appellate Division within thirty days of the filing of the determination by the court. The sole ground for appeal shall be that the property is not a major public hazard.

8. If the property is deemed to be a major public hazard as a result of the court proceeding, the owner shall have ninety days within which to remediate the hazard in the manner required by the municipality. Any owner who purposely and knowingly fails to remediate the hazard shall be guilty of a crime of the fourth degree. The court may reduce the penalty if it determines that there are mitigating circumstances.

9. If an owner of a property which has been once declared a major public hazard has been convicted of a first offense, he shall, for any subsequent offense with regard to the same property, be guilty of a crime of the third degree and the property shall be subject to forfeiture to the municipality.

10. a. If an owner is convicted of a second offense regarding the maintenance of the same property as a major public hazard, the forfeiture of the property shall be enforced by a civil action instituted within ninety days of the second conviction, against the property. The complaint shall be verified on oath or affirmation and shall describe the property with reasonable particuliarity, including the block and lot number and street address of the property, shall contain allegations setting forth the reason or reasons the property is to be forfeited, and shall be accompanied by supporting information.

b. The owner of the property that is the subject of the forfeiture action shall file and serve his answer in accordance with the Rules of Court. The answer shall be verified on oath or affirmation. If no answer is made within the applicable time, the property shall be forfeited to the municipality.

c. If an answer is filed, the court shall set the matter down for a summary hearing as soon as practicable. Upon application of the municipality or claimant, the court may stay proceedings in the forfeiture action until the criminal proceedings have been concluded by entry of final judgment.

d. The municipality may apply to the court for an order permitting use of the seized property pending the disposition of the forfeiture action, providing that the property may be used only by the municipality. Approval shall be liberally given but shall be subject to a written guarantee by the municipality of payment for property which may be subject to return, replacement, or compensation as to reasonable value in the event that the forfeiture is refused by the court or only partial extinguishment of property rights is ordered by the court. The court may appoint a trustee to protect the interests of all parties involved in the action during the pendency of the forfeiture action.

e. Evidence of a conviction in the criminal proceeding with regard to a second offense shall be considered in the forfeiture proceeding as creating a rebuttable presumption that the property is subject to forfeiture.

11. No forfeiture under this act shall affect the rights of any other person with an interest in the property in the ordinary course of business or any person holding a perfected security interest in the property subject to seizure unless it appears that the person had knowledge of or consented to any act or omission upon which the forfeiture is based. Such rights are only to the extent of interest in the seized property and at the option of the municipality.

12. No owner shall be convicted of a crime of the third or fourth degree or be subject to the forfeiture of property if he establishes by a preponderance of the evidence that he was not involved in or aware of the failure to remediate the property and that he had done all that could reasonably be expected to prevent the violation of law by an agent. A person who manages or possesses property with the consent or knowledge of the owner is deemed to be the agent of the owner for the purposes of this act.

13. No owner shall be convicted of a crime of the third degree pursuant to this act or be subject to forfeiture if the property is entrusted to an agent for repairs or remediation and if the agent has unlawfully failed, without the owner’s knowledge or consent, to carry out the repairs or remediation or converted the funds therefor to his own use.

14. Property which has been forfeited shall become the property of the municipality and title shall be vested in the municipality. Any owner who could not with due diligence have discovered that the property was forfeited may file a claim for its return within three years of the forfeiture if he can demonstrate that he did not consent to, and had no knowledge of its status as a major public hazard and the failure to remediate it.

15. This act shall take effect immediately.

STATEMENT

Recognizing the tremendous economic drain on the State's urban areas represented by properties which languish through long-term neglect and deterioration, this bill establishes a definition of "abandoned property" and sets forth a forfeiture procedure for the acquisition by a municipality of abandoned property.

The bill defines "abandoned property" as any building of 15,000 square feet or less which: has been unoccupied or unused by the owner or lessee for a period of five years or longer; is the site of toxic or environmentally dangerous hazards; has suffered such structural damage or deterioration so as to render it uninhabitable and a danger to the public; or otherwise presents an imminent and substantial hazard to the public health.

Upon the complaint of any person, including a municipal officer, the municipality may cause to be investigated any abandoned property. Upon a showing of probable cause that the property represents a danger to the public health or welfare, the municipality may obtain an order from the Superior Court to declare the property a major public hazard.

Within 10 days of the receipt of such an order, the municipality shall send a notice to the owner of record by certified mail that the property has been declared a major public hazard. The mailed notice shall contain a statement of the factual basis for the municipality's finding that the property is a major public hazard and a copy of the court order obtained by the municipality which declares the property a major public hazard. In requiring remediation of the property as a major public hazard, the municipality may order that the owner eliminate any infestation on the property; remediate any toxic or environmental hazard; obstruct every means of ingress and egress to the structure; create a barrier to public access to the property; and shore up of any elements of the structure which render it liable to collapse. If the structural damage is severe to the degree that it is not remediable, the municipality may order that the structure be demolished.

The bill recognizes the property rights of those individuals found to own abandoned property and sets forth an appeal procedure for the challenge of the status of the property in court. Ultimately, if the property is deemed to be a major public hazard as a result of the court proceeding, the owner shall have ninety days within which to remediate the hazard in the manner required by the municipality. Any owner who willfully, wantonly, and recklessly fails to remediate the hazard shall be guilty of a crime of the fourth degree. An owner shall be guilty of a crime of the third degree for any subsequent offense and that person's property shall be subject to forfeiture, according to the procedure set forth in the bill.

Sets forth procedure for forfeiture of abandoned property.