25 Fairmount Ave., Inc. v. Stockton

• Decision Date: 27 September 1974
• Citation: 25 Fairmount Ave., Inc. v. Stockton, 326 A.2d 106, 130 N.J.Super. 276 (N.J. Cty. Dist. Ct. 1974)
• Parties: 25 FAIRMOUNT AVENUE, INC., Plaintiff, v. Mr. & Mrs. Robert H. STOCKTON, Defendants.
• Court: New Jersey District Court

Page 276

130 N.J.Super. 276

326 A.2d 106

25 FAIRMOUNT AVENUE, INC., Plaintiff, v.Mr. & Mrs. Robert H. STOCKTON, Defendants.

District Court, Bergen County New Jersey.

Decided Sept. 27, 1974.

Jack B. Ehrich, Hackensack, for plaintiff.

Ronald M. Abramson, Fort Lee, for defendants.

HUOT, J.D.C.

The motion to dismiss this landlord-tenant summary dispossess action raises the question of the applicability of the recent amendment of N.J.S.A. 2A:18--53(L.1974, c. 49), particularly to contracts between the parties prior to the effective date of this new legislation.

Defendants were tenants of plaintiff by virtue of a lease which expired June 30, 1974.The parties stipulate that the three-month notice required by N.J.S.A. 2A:18--56 was properly given and received.

June 30, 1974 passed and the defendants remained in possession.This action was commenced on July 17, 1974 and was heard, after consent adjournments, on August 20, 1974.At that time defendant moved to dismiss the complaint on the grounds that the plaintiff had failed to serve a notice setting forth 'cause' as required by L.1974, c. 49.Defendant contends that he may not be dispossessed because the landlord has failed to comply with § 3 of the act, which prohibits the entry of a judgment for possession except upon a notice of and a showing of 'good cause.'

Plaintiff contends that it acquired a vested right to terminate the tenancy and recover the premises by the stipulation of proper notice, and that L.1974, c. 49, cannot divest it of this right.It further contends that the recent amendment affects substantive rights and is not remedial or procedural.Plaintiff argues that since it is a vested, substantive right, the statute may not retroactively apply to divest that right which is protected by the State and Federal Constitutions.

The initial question to be determined, then is whether L.1974, c. 49, affects the substantive rights of landlords and tenants or whether it merely establishes a prerequisite to the exercise of jurisdiction by this court.If it is procedural only, it does not affect any basic right but merely contains the method by which those independent rights shall be enforced.And, if this be so, the court need not meet the issue raised by plaintiff of retroactive applicability.That is because the statute would apply prospectively to the exercise of jurisdiction from and after June 25, 1974.If, on the other hand, the statute affects substantive rights, the issue of the constitutional retroactivity must be decided.

N.J.S.A. 2A:6--34 provides, among other things that 'county district courts shall also have jurisdiction in proceedings between landlords and tenants, * * *.'

N.J.S.A. 2A:18 is entitled, 'Civil Actions in County District Courts,' and consists of 11 articles or chapters, further subdivided by sections.It first appeared as chapter 228 Laws of 1898 and was entitled, 'An Act Concerning District Courts.'

That act was construed by the courts to be one granting jurisdiction but not affecting the substantive rights of landlords or tenants.That the act was jurisdictional was determined in Jonas Glass Co. v. Ross, 69 N.J.L. 157, 53 A. 675(Sup.Ct.1903).There the court held that the section purporting to authorize the removal of tenants was strictly a jurisdictional one.It said:

Under an appropriate title such legislation would apply to every case within its terms, but under a title embracing nothing beyond judicial jurisdiction and procedure it can extend only to cases where, independent of the enactment, a landlord has the right to recovery possession of the demised premises in default of payment of rent.Under article 4, section 7, paragraph 4 of the constitution the object of a law must be expressed in its title, and the title of that cited does not indicate a purpose to declare or change The relative rights of landlords and tenants.(at 158, 53 A. at 675, emphasis supplied).

In contrast, those acts which became part of N.J.S.A. 2A:42--1 et seq., originating in 1874, were differently entitled.

Chapter 164, Laws of 1874, was entitled, 'A further supplement to an act entitled 'An act concerning Landlords and Tenants,' approved April fifteenth, one thousand eight hundred and forty-six.'

Chapter 13, Laws of 1903 was entitled, 'A Further Supplement to an act entitled 'An act concerning landlords and tenants,' approved March twenty-seventh, one thousand eight hundred and seventy-four.'

The reprisal statute appeared as chapter 210, Laws of 1970, and is entitled, 'An Act concerning landlord and tenant * * *.'

In like manner, chapter 373, Laws of 1948, which became N.J.S.A. 2A:35--1 et seq. relating to ejectment, was entitled 'An act concerning civil actions for the possession of land, superseding actions of ejectment * * *'

It has long been understood that N.J.S.A. 2A:18--53 is part of the District Court Act which embraces only jurisdiction and procedure.

2 LeWine, New Jersey Landlord and Tenant(2 Ed.1942), § 783 at 1800, states:

783.Construction and Interpretation of Statute

As before stated, summary dispossession proceedings are created by statute.Sections 2:58--16 etc., of R.S., are the provisions taken from the Landlord and Tenant Act, andsections 2:32--265, etc., of R.S. have their derivation in the District Court act.

The Landlord and Tenant Act provides for the rights and liabilities of landlord and tenant.The District Court act regulates and embraces within its terms only judicial jurisdiction and procedure.The latter act cannot change the relative rights and liabilities of landlord and tenant under the title, 'An act concerning District Courts' because that title is not broad enough to support a change of such rights.Under article 4, section 7, paragraph 4 of the New Jersey Constitution, the object of a law must be expressed in its title, and the title of the District Court act does not indicate a purpose to declare or change the relative rights of landlords and tenants.This can be done only by an amendment of the Landlord and Tenant Act, changing the rights of landlord and tenant, or by an amendment of the title of the District Court act so that it will be broad enough to cover the granting and changing of such rights.

We come now to an evaluation of L.1974, c. 49, in light of the above.The title of that chapter is 'An Act establishing grounds for evicting tenants and lessees of certain residential property, amending N.J.S.A. 2A:18--53 and repealing section 1 of P.L.1973, c. 153 (C. 46:8C--1).'

Initially, we note a change in the title of the act from its predecessor.The new title sets forth that its purpose is to establish Grounds for eviction, not just procedures for the enforcement of such.

Section 1 of chapter 49 is identical to the former N.J.S.A. 2A:18--53 except that the words, 'Except for residential lessees and tenants included in section 2 of this act,' have been added at its beginning.

Sections 2,3,4and5 are new and were never a part of N.J.S.A. 2A:18--53 prior to this amendment.

Section 2 provides that 'No lessee or tenant * * * may be removed' except upon the establishment of certain enumerated grounds.When one contrasts this with § 3, which provides that, 'No judgment of possession shall be entered * * *, unless the landlord has made written demand and given written notice * * *,' it is obvious that a change in the substantive rights of landlords and tenants was achieved in § 2.This conclusion is further buttressed by § 4, which prohibits a landlord from evicting or failing to renew the lease except for the causes established in § 2.

This court concludes that L.1974, c. 49, is really an act which establishes changes in the substantive rights of landlords and tenants while also amending the jurisdictional and procedural requirements.Prior to its adoption the right of the landlord to possession of his property was established by other law, statutory or common, and N.J.S.A. 2A:18--51 et seq. merely established the procedure to be used to assert such rights.The common law rights of ownership and the statutory rights found in N.J.S.A. 2A:42--1 et seq. controlled the decision of the Court, while N.J.S.A. 2A:18--51 et seq. controlled its jurisdiction.Under the new enactment, however, additional limitation upon the Right to possession has been established, or perhaps it would be more accurate to say that an owner of property (who is not excepted from § 2) once he accepts a tenant on that property, no longer has a right of possession to it; and he does not regain that right of possession unless and until the tenant is guilty of some act or omission which constitutes 'good cause,' or unless and until theproperty is to be removed from the rental market.This prohibition affects an element of a property right, the right of possession, and not the procedure to enforce such right.

Although these prohibitions appear in the District Court Act, N.J.S.A. 2A:18--1 et seq., it does not mean that they are solely procedural.The title of L.1974, c. 49, comports with the rationale of Jonas Glass Co. v. Ross, Supra, and does encompass 'grounds for evicting tenants.'

Section 2 restricts a landlord to 'good cause' before a tenant may be dispossessed.Section 4 requires a landlord to renew a lease for a tenant whose lease expires unless it can be established that 'good cause' sufficient to dispossess exists.Section 5 prohibits as against public policy the waiver by a tenant of any rights established by the act and makes any such waiver unenforceable.The right established by the act is the right to remain in possession of the rented property until there is 'good cause' for him to be removed.Generally, one has always been free to waive a legal right, and such waiver would be given effect.Now, however, such waiver may not be enforced against a tenant who occupies property covered by § 2.These are the substantive provisions of the act which interfere with and limit the former right of...