Jay B. Bohn, Esq., at Schiller, Pittenger & Galvin, P.C. successfully defended a client’s property rights in his home. A court affirmed the client’s right to sell his home for its fair market value. This was contested by the municipality, which claimed the property, which had formerly been an affordable housing unit, remained one.
Under New Jersey’s landmark Mount Laurel Doctrine, municipal zoning ordinances must provide a realistic opportunity for the town’s fair share of low- and moderate-income (“affordable”) housing. These housing units are subject to affordability controls to assure that they are occupied by, and affordable to, such households.
The early versions of affordability controls contained provisions that if a mortgage lender foreclosed upon the unit, the resulting sheriff’s sale would be free of the affordability controls. These provisions made it more likely that a foreclosing lender would recover all that was owed.
On the other hand, the release of the unit removed it from the municipality’s affordable housing inventory, so ultimately it would have to be replaced.
In 2004 these older forms of affordability controls were replaced by the Uniform Housing Affordability Controls (UHAC) which remain in effect even in the event of foreclosure.
Jay’s client had purchased a formerly affordable unit (at market price) in 2001 from a seller who had acquired it through a sheriff’s sale. When contacted by the client, the town told the client that they still viewed the home as an affordable housing unit. The client first consulted Jay in 2019.
The town’s position not only would deprive the client of a substantial part of the value of his home if he were to choose to sell but could arguably require him to sell and vacate unless he qualified as a low- or moderate-income household.
When the client did not immediately accede to the municipality’s position, the town filed a lawsuit to obtain a judgment enforcing its claim. Fortunately for the client, Jay obtained a copy of the court’s file for the foreclosure action. He carefully reviewed the history of the development of the regulations governing affordability controls and was able to obtain summary judgment dismissing the municipality’s complaint.
In addition, he obtained an affirmative judgment on a counterclaim declaring that the affordable housing controls on the client’s home had terminated.