Center Ave. Realty, Inc. v. Smith

• Decision Date: 04 May 1993
• Citation: 624 A.2d 996,264 N.J.Super. 344
• Parties: CENTER AVENUE REALTY, INC., Plaintiff-Respondent, v. Joel SMITH, As Executor of the Estate of Cecil Smith and Joel Smith, Individually, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 344

264 N.J.Super. 344

624 A.2d 996

CENTER AVENUE REALTY, INC., Plaintiff-Respondent, v. Joel SMITH, As Executor of the Estate of Cecil Smith and Joel Smith, Individually, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued April 7, 1992.

Decided May 4, 1993.

Ronald Schwartz, Hackensack, for defendant-appellant.

Mark Winkler, Paramus, for plaintiff-respondent (Rusch and Litt, attorneys).

Before Judges PRESSLER, R.S. COHEN and KESTIN.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

Commenced as a summary dispossess action in the Special Civil Part, this landlord-tenant dispute was transferred to the Law Division pursuant to R. 6:4-1(g) by sua sponte order of the court. Defendant Joel Smith, individually and as executor of the estate of his deceased mother Cecil Smith, appeals from a summary judgment entered by the Law Division granting plaintiff-landlord, Center Avenue Realty, Inc., a judgment of ejectment and an award of money damages. We reverse.

The relevant facts are not in substantial dispute. The premises consist of an apartment in plaintiff's residential building in Fort Lee. Defendant's family took occupancy of the apartment in 1967 under a two-year lease naming his parents, Leon Smith and Cecil Smith, as tenants, and both executed the lease. Occupancy was limited to the Smiths and those members of their immediate family named in their application form. Defendant, then an adult, had been so named and resided with his parents for several years. He left in 1970 when he married. Written annual renewal leases were thereafter executed, the last for the period ending March 31, 1981. At some point during this relationship, Leon Smith became the only named and executing tenant although his wife continued to live with him. As we understand the record, the continued tenancy after 1981 was a month-to-month holdover tenancy pursuant to law, N.J.S.A. 46:8-10, and was memorialized by way of an annual notice of extension sent by the landlord and signed by the tenant, Leon Smith, stating the new annual rent.

Leon Smith died in 1987. Cecil Smith remained as the tenant, and although she refused to sign the annual extension notices which now named her as the tenant, she nevertheless paid the rent due as required thereby. Mrs. Smith's health had by this time begun to fail and by 1989, she was suffering from a degenerative disease making it difficult for her to continue living alone. Consequently defendant, by then divorced, returned to Fort Lee to live with his mother. His subsequent request to plaintiff that he be named as the tenant in the annual extension notices was rejected.

Mrs. Smith died testate in February 1991. Defendant was her executor and heir. He claimed the right to succeed to his mother's tenancy in either of those capacities or as tenant-occupant during his mother's lifetime. Plaintiff, however, took the position that Mrs. Smith's death had effectively terminated the original tenancy and that if defendant wished to remain, he would have to do so as a new tenant subject to Fort Lee's vacancy decontrol ordinance. Since defendant insisted on his right to remain under the original tenancy, plaintiff brought a summary dispossess action, which, as noted, was then transferred to the Law Division for disposition as an ejectment action. ¹

The trial court, concurring with plaintiff's view of the matter, required defendant to vacate and entered judgment in plaintiff's favor in the amount of the difference between the rent Mrs. Smith had been obligated to pay and the decontrolled rental value of the apartment. Although defendant appealed from that judgment, he voluntarily vacated before the end of 1991 even though the judgment, entered in October 1991, was, by its own terms, stayed pending appeal.

Because defendant has vacated the premises, we are satisfied that his right to remain in the premises as a successor tenant under the terms of the original lease and subject to removal only under the Anti-Eviction Law, N.J.S.A. 2A:18-61.1, presents a moot question that we need not decide. In order to address the remaining damages issue, we must, however, determine the legitimacy of defendant's retention of the premises under his mother's tenancy at least for the period between her death in February 1991 and either the date of the trial court judgment in October 1991 or his actual removal in December 1991.

As noted, defendant argues that his right to remain for that period of time derives from his status as an occupant on the date of his mother's death or his status as a tenant in his own right based either on his original or resumed occupancy, or his status as executor, or his status as heir, or a combination of some or all of these factors.

We consider first the consequence of defendant's executor status, erroneously dismissed as inconsequential by the trial judge. It is well settled that when a tenancy for a stated term of a year or more is converted to a holdover month-to-month tenancy by reason of expiration of a written lease without execution of a renewal lease, the holdover tenancy is ordinarily subject to all the terms and conditions of the written lease other than its durational term. See, e.g., S.D.G. v. Inventory Control Co., 178 N.J.Super. 411, 414, 429 A.2d 394 (App.Div.1981); Heyman v. Bishop, 15 N.J.Super. 266, 269, 83 A.2d 344 (App.Div.1951). Consequently, the continued tenancy of Mrs. Smith, as to whose tenant status there is no dispute, was subject to the terms and conditions of the last written lease covering the subject premises, namely, the 1980-1981 lease.

That lease contained two pertinent provisions. The first was the statement preceding the enumerated terms and conditions of the lease that

The parties hereto, for themselves, their heirs, distributees, executors, administrators, legal representatives, successors and assigns, hereby covenant as follows: ....

The second is numbered paragraph 29 of the lease, which states that

The covenant, conditions and agreements contained in this lease shall bind and inure to the benefit of the Landlord and Tenant and their respective heirs, distributees, executors, administrators, successors, and except as otherwise provided in this lease, their assigns.

As we view the matter then, the question is not whether defendant had the rights conferred by the lease as an executor. He clearly did. The problem, rather, is to define the extent and scope of those rights.

Both common and statutory law address the issue. Putting aside for the moment consideration of the consequence of the Anti-Eviction Act as well as municipal rent levelling ordinances, we are satisfied that as a matter of well established legal doctrine, both the rights and obligations of the executor are coextensive with the rights and obligations of the tenant under the lease. Thus those rights and obligations can endure only for the durational term of the lease, since, obviously, the tenant could not ordinarily insist on the right to remain after its expiration and the landlord could not ordinarily require the tenant to remain obligated thereafter. See, e.g., Baum v. Tazwell, 26 N.J. Misc. 292, 294, 61 A.2d 12 (Cir.Ct.1948), noting that "[i]n the absence of a covenant otherwise providing, as a general rule a lease is not terminated by the death of the lessor or the lessee." And see Gross v. Peskin, 101 N.J.Super. 468, 469, 244 A.2d 692 (App.Div.1968), holding the deceased tenant's executor liable for rent for the balance of the term of the lease. See, generally, Annotation, Death of Lessee as Terminating Lease, 42 A.L.R.4th 963 (1985). Indeed, the recognition that the executor of the deceased tenant not only has the right to succeed to the balance of a lease for a term of a year or longer, but also has the duty to meet his decedent's obligations under the lease for that period is the underlying predicate of N.J.S.A. 46:8-9.1. That remedial statute, applicable to residential leases of a year or more, permits the executor of an occupant-tenant to terminate the lease on forty days' notice and accords the same right to a surviving spouse who is individually obligated under the lease.

The rule that the tenant's death does not terminate the lease has been held equally applicable to a month-to-month tenancy. Thus, in Levigton v. Tuly, 126 N.J.Eg. 552, 553-554, 10 A.2d 641 (Ch.1940), Vice-Chancellor Bigelow, albeit in a different context, held that "A tenancy from month to month is not terminated by the death of the tenant but his interest therein passes to his executor or administrator." See also State v. Pierce, 175 N.J.Super. 149, 152, 417 A.2d 1085 (Law Div.1980); Baum, supra, 26 N.J.Misc. at 294, 61 A.2d 12; Dorfman v. Barnett, 24 N.J.Misc. 212, 213, 48 A.2d 217 (Cir.Ct.1946).

At the time of the tenant's death here, the tenancy was, as we have noted, technically month to month by operation of law applicable to a holdover following the expiration of a term for a year or more. If the Anti-Eviction Act were not a consideration, the landlord would have had the right to terminate the tenancy on thirty days' notice. N.J.S.A. 2A:18-56b. Consequently, consistent with the executor's rights under the lease, plai...