Fairken Associates v. Hutchin

• Decision Date: 18 December 1987
• Citation: 538 A.2d 465,223 N.J.Super. 274
• Parties: FAIRKEN ASSOCIATES, Plaintiff, v. Curtis HUTCHIN, Defendant.
• Court: New Jersey Superior Court

Page 274

223 N.J.Super. 274

538 A.2d 465

FAIRKEN ASSOCIATES, Plaintiff, v. Curtis HUTCHIN, Defendant.

Superior Court of New Jersey, Law Division,

Special Civil Part, Essex County.

Decided Dec. 18, 1987.

Craig Weinstein (Lowen & Abut, P.A.), for plaintiff

No one appeared for defendant, who was in default.

FAST, J.S.C.

This is an action for possession following the conversion of the subject unit to the condominium form of ownership. This case presents two issues, both of which appear not to have been reported in any New Jersey case.

The issues presented are:

1) Whether comparable housing must be offered when a tenant does not request it, and

2) Assuming that no such offer is required, did the landlord waive the benefit of having served the tenant with the three year notice by collecting rent for two years following the effective date of that three year notice, or is the landlord subject otherwise to the defenses of estoppel or laches?

The plaintiff here was the sponsor of the conversion, and the defendant had been a tenant at the time of the conversion, sometimes referred to as a "pre-conversion tenant."

N.J.S.A. 2A:18-61.11a provides:

a. Tenants receiving notice under section 3 g. of P.L.1974, c. 49 [ N.J.S.A. 2A:18-61.2] may request of the landlord within 18 full months after receipt of such notice, and the landlord shall offer to the tenant, ... the rental of comparable housing or park site and a reasonable opportunity to examine and rent such comparable housing or park site. In any proceeding under subsection 2 k. of P.L.1974, c. 49 [ N.J.S.A. 2A:18-61.1] instituted following the expiration of notice required under section 3 g. of P.L.1974, c. 49, the owner shall prove that a tenant was offered such comparable housing or park site and provided such reasonable opportunity to examine and rent such housing or park site as requested pursuant to this section.... [Emphasis added]

I have found that the three year notice required by N.J.S.A. 2A:18-61.2 was given on November 1, 1982. It was effective three years later, to wit, November 1, 1985. That notice included the right of the tenant to request the comparable housing. I also have found in this case that the tenant did not request comparable housing, and that no comparable housing was offered to the tenant.

Additional material facts are that the tenant has received notices to increase his rent, and that the rent has been paid to date.

ISSUE I

MUST COMPARABLE HOUSING BE OFFERED WHEN THE TENANT DOES NOT

REQUEST IT?

The quoted statutory section uses the mandatory word "shall" ["and the landlord shall offer to the tenant"]. This issue requires the interpretation of the statutory mandate "shall."

The presumption that the word "shall" is imperative rather than directory, Furlong v. Manning, 212 N.J.Super. 240, 244, 514 A.2d 860 (Law Div.1986) is not conclusive. Id. at 245, 514 A.2d 860. However, more significantly, "... it is important to remember that 'often the surest path to misconstruction is a literal reading of a statute.' Henry v. Shopper's World, 200 N.J.Super. 14, 18, 490 A.2d 320 (App.Div.1985)." Johns-Manville Prods. Corp. v. Dronebarger, 211 N.J.Super. 520, 525, 511 A.2d 1304 (Law Div.1986). The spirit and policy of the statute must control. Caputo v. The Best Foods, 17 N.J. 259, 264, 111 A.2d 261 (1955). Therefore, the word "shall" can be neither unduly emphasized nor given more life than intended.

If the word "shall" is construed to be mandatory in the absence of a request by the tenant (as authorized in that same statutory section, vide supra ), then there is no reason for the legislature to have included the authorization to the tenant to make the request. That is, the landlord would have to have made the offer of comparable housing without any request by the tenant, anyway. This construction would make a significant provision by the legislature surplusage. Specifically, the introduction of the paragraph relates to the request that the tenant may make. Although statutory interpretation may require the deletion of words where necessary to effectuate the legislative intention, County of Monmouth v. Wissell, 68 N.J. I emphasize the significance of the authorization for the tenant's request, because I find that it is not surplusage. The main reason for this finding is that the tenant's authorization is limited, in that same introductory clause in the statute, to an 18-month period after the notice is served by the landlord. Clearly, since the legislature imposed a time limitation to a right, it did not consider the right to have been surplusage.

                35, 43, 342 A.2d 199 (1975), an inference of surplusage in a legislative enactment should not be readily entertained.   Foy v. Dayko, 82 N.J.Super. 8, 13, 196 A.2d 535 (App.Div.1964)
                

This interpretation is supported by the portion of the statute emphasized above, to wit, that the comparable housing "requested pursuant to this section" has in fact been offered to the tenant. In other words, the interpretation favorable to the tenant (i.e., that comparable housing must be offered even when not requested) would require finding that two clauses in the same statutory paragraph were surplusage. Neither was; the landlord need not make the offer without the timely request by the tenant (assuming that the statutorily required notice to the tenant has been given.) In fact, since no offer of comparable housing would have to be made if requested by the tenant more than 18 months after receipt of the notice, I perceive no rationale for requiring an offer of comparable housing where none is requested at any time.

The rules and regulations promulgated by the Department of Community Affairs, see N.J.S.A. 2A:18-61.12, designed to implement the statute, do not suggest otherwise. The regulation, N.J.A.C. 5:24-1.6(a) states:

(a) Tenants in occupancy prior to the recording of the master deed ... who have received the three year notice of eviction on the grounds of conversion have the right, for 18 full months after the receipt of such notice, to request of the landlord, and to be offered by the landlord ... a reasonable opportunity to examine and rent 'comparable housing'. [Emphasis added]

Therefore, this first issue is answered in favor of the landlord. Where a tenant has received the required notice but not

made a timely request for comparable housing, no comparable housing need be offered by a landlord.

ISSUE II

WHERE A LANDLORD CONTINUES TO COLLECT RENT FOR TWO YEARS

AFTER THE EFFECTIVE DATE OF A THREE YEAR "CONVERSION NOTICE"

DOES THE LANDLORD WAIVE THE BENEFIT OF THE NOTICE, IS THE

LANDLORD ESTOPPED FROM ENFORCING THE NOTICE, OR IS THE

LANDLORD SUBJECT TO LACHES?

The doctrine of laches provides an equitable defense that may be interposed in the absence of the statute of limitations. There is no fixed period for the application of the doctrine; characteristically, it is flexible. However, it is not the delay only that permits the application of the doctrine, but also whether a party (here, the tenant) has been misled to his harm by the delay. See generally, Lavin v. Hackensack Bd. of Ed., 90 N.J. 145, 151-153, 447 A.2d 516 (1982). Further, the party raising the defense must show that the delay was unreasonable under the circumstances. Bergen County Welfare Board v. Cueman, 164 N.J.Super. 401, 407, 396 A.2d 620 (Cty.Ct., 1978).

I find that there was no prejudice shown by the defendant tenant. The alternative, i.e., prompt enforcement of the three year notice, would have effected the same remedy now sought. The remedy would have been an earlier eviction. The defendant has not shown any greater detriment from an eviction at this time than he would have suffered by an eviction two years ago. Hence, there is no prejudice from the delay, and the defense of laches is not available in the facts of this case.

New Jersey recognizes two types of estoppel, "promissory" or "equitable." Promissory estoppel requires four separate factual elements: (1) a clear and definite promise, (2) made with the expectation that the promisee will rely thereon, (3) and which the promisee reasonably does, (4) resulting in a definite and substantial detriment incurred in that reliance. Promissory estoppel was applied in the landlord-tenant relationship in Royal Associates v. Concannon, 200 N.J.Super. 84, 490 A.2d 35 (App.Div.1985), where the tenant bought a pet in reliance on the promise of the landlord that pets were permitted, and the court prohibited the eviction of the tenant for allegedly violating a "no pets clause" in the lease. However, in the subject case, neither a promise nor a detriment was shown by the delay in enforcing the three year notice. Therefore the landlord is not subject to the defense of promissory estoppel.

Equitable estoppel is essentially the same; it also requires a detrimental change in position based on reasonable reliance. However, the difference is that the party asserting it need not prove a promise,...