Gamble v. Connolly

• Citation: 943 A.2d 202,399 N.J. Super. 130
• Decision Date: 30 October 2007
• Docket Number: Docket No.: DC-6838-07
• Parties: James GAMBLE, Plaintiff v. David CONNOLLY and Connolly Properties, Inc., Defendants.
• Court: Superior Court of New Jersey

943 A.2d 202

399 N.J. Super. 130

James GAMBLE, Plaintiff v. David CONNOLLY and Connolly Properties, Inc., Defendants.

Docket No.: DC-6838-07

Superior Court of New Jersey, Civil Division, Special Civil Part Essex County.

Decided October 30, 2007.

Evans C. Anyanwu, Newark, for plaintiff.

Anne P. Ward, Newark, for defendants.

PETER V. RYAN, J.S.C.

This matter comes before the court by a complaint filed by the plaintiff, James Gamble ("Gamble") demanding payment of double the security deposit, full cost for this action, and reasonable attorney's fees pursuant to N.J.S.A. 46:8-21.1. The defendants, David Connolly and Connolly Properties ("Connolly"), have responded by denying the allegations in an answer and counterclaim.¹ N.J.S.A. 46:8-21.1 reads in relevant part:

Within thirty days after the termination of the tenant's lease or licensee's agreement, the owner or lessee shall return by personal delivery, registered or certified mail the sum so deposited plus the tenant's portion of the interest or earnings accumulated thereon. . . . In any action by a tenant, licensee, executor, administrator or surviving spouse, or other person acting on behalf of a tenant, licensee, executor, administrator or surviving souse, for the return of moneys due under this section, the court upon finding for the tenant, licensee, executor, administrator or surviving spouse shall award recovery of double the amount of said moneys, together with full costs of any action and, in the court's discretion, reasonable attorney's fees.

The Special Civil Part is vested with jurisdiction to dispose, in one action, all disputes relating to the amount to be returned to tenants on security deposits, including the determination of the propriety of a deduction made by the landlord. N.J.S.A. 46:8-21.4; Melendy v. Woodbridge Gardens, Inc., 131 N.J.Super. 473, 476, 330 A.2d 596 (App.Div.1974).

David Connolly is the principal owner of Connolly Properties, Inc., a real estate company in the business of renting housing units, which owns and operates the property at 243 South Harrison Street. Gamble was the lessee of apartment 5D at that location on or about October of 2002. He had an executed written lease with the previous proprietor, but never had a lease in written form with Connolly. No evidence has been presented to suggest or demonstrate that Connolly or Gamble engaged in any negotiations to reach a new lease agreement, and neither party disputes that Gamble was in a "hold-over" status.

In three successive years, 2004 to 2006, Connolly forwarded to the plaintiff a "notice to quit and lease renewal"; the most recent and the subject of this litigation occurred on September 20, 2006. The notice reads as follows:

In accordance with the terms of the lease and the laws of the state of New Jersey, your lease expires as of 11/30/06 and it is demanded that you quit, surrender, and deliver possession of 243 South Harrison Street, Apt. #5D, no later than the above lease expiration date

Term: 12/01/06 to 11/30/07

Monthly Rent: $895.00 Annual Rent $10740.00

Original Security Deposit: $1242.00 New Security Deposit: $1342.50

Your landlord, David Connolly, is willing to enter into an extension of your present lease for one year with the following changes:

The monthly rent, which commences 12/01/06, shall be the sum of $895.00. Late charge terms are as stated in the lease. Returned check charges, cost of collection, security deposit due, and damage expenses will be chargeable as additional rent. Please remit $100.50 by separate check or money order payable to Connolly Properties, Inc., to meet your security deposit requirement.

If you choose to stay, you do not have to do anything. Your lease will automatically be extended for an additional year at the rate of $895.00 per month effective 12/01/06. If Tenant breaks lease during the coming lease term, Tenant will be charged double rent retroactively from the beginning date of this lease renewal. If you choose to move and not notify us at least 60 days prior to your lease renewal date, you could forfeit all or part of your security deposit.

For the years 2004 and 2005, the plaintiff tendered the amount owed for rent, which was increased annually.

On July 1, 2006, Gamble forwarded correspondence to Connolly stating his intention to vacate the premises on October 31, 2006, and declared: "I am in compliance for a sixty day notice and I am applying for my return of my security deposit in the account of more than $1100.00 from which I submitted for the apartment." In an undated letter, clearly beyond thirty days after the plaintiff removed himself from the living quarters, Connolly, on a letter-head containing the East Orange site, advised Gamble that the security deposit of $1242 was being reduced by the monies owed in rent of $1154 and the "amount due to resident is $88.00."

The position advanced by Connolly is that Gamble's lease was for one year and terminated on November 30, 2006, as per the notice of renewal for 2005, and payment was, therefore, due for the month of November. This contention is based on defendant's assumption that the plaintiffs continued occupancy of the dwelling and remittance of the increased rental payments "constitutes unequivocal acceptance of all the terms of the renewals." The plaintiff challenges such an assertion and argues that (a) his tenancy was month-to-month, and (b) his notice to vacate was within the permissible time limits.

The pivotal question is whether the tenant is bound by a renewal lease of one year, or whether his status as a hold-over-tenant resulted in a lease period thirty (30) days, month-to-month, pursuant to N.J.S.A. 46:8-10.

It is a rudimentary proposition that the function of a court is to enforce a lease as it is written, absent some superior contravening public policy. Marini v. Ireland, 56 N.J. 130, 143, 265 A.2d 526 (1970); Mury v. Tublitz, 151 N.J.Super. 39, 44, 376 A.2d 547 (App.Div.1977). In the absence of such a policy, the parties are free to define the terms of the lease agreement. Housing Auth. and Urban Redevelopment Agency v. Taylor, 171 N.J. 580, 586, 796 A.2d 193 (2002); Fargo Realty, Inc. v. Harris, 173 N.J.Super. 262, 265-66, 414 A.2d 256 (App.Div.1980).

Under the facts of the case sub judice, the plaintiff avers that the continuation or renewal of the lease was effectuated without written submissions, but rather by remaining in a hold-over tenant status. As a consequence, the tenant avers that N.J.S.A. 46:8-10 controls and that the statutory prescription is that the duration of a lease is limited to thirty days. N.J.S.A. 46:8-10 reads:

Whenever a tenant whose original terms of leasing shall be for a period of one month or longer, shall hold over or remain in possession of the demised premises beyond the term of the letting, the tenancy created by or resulting from acceptance of rent by the landlord shall be a tenancy from month to month in the absence of any agreement to the contrary.

See Maglies v. Estate of Guy, 386 N.J.Super. 449, 453, 901 A.2d 971 (App.Div.), certif. granted, 188 N.J. 492, 909 A.2d 726 (2006); Tower Mgmt. Corp. v. Podesta, 226 N.J.Super. 300, 302, 544 A.2d 389 (App. Div.1988). Further, a month-to-month tenancy is terminated by the giving of one month's notice to quit, which notice shall be deemed to be sufficient. N.J.S.A. 2A:18-56; Center Ave. Realty v. Smith, 264 N.J.Super. 344, 350, 624 A.2d 996 (App.Div.1993).

A month-to-month tenancy is a continual relationship that remains unabated at its original terms until terminated by one of the parties. Harry's Village Inc. v. Egg Harbor Twp., 89 N.J. 576, 583, 446 A.2d 862 (1982); J.M.J. New Jersey Props., Inc. v. Khuzam, 365 N.J.Super. 325, 332, 839 A.2d 102 (2004). Agreements between the landlord and tenant need not be in writing or even expressed in words. Enforceable agreements also may be implied in fact from the conduct of the parties. Young v. Savinon, 201 N.J.Super. 1, 7-8, 492 A.2d 385 (App.Div.1985) (citing St. Paul Fire & Marine Co. v. Indem. Ins. of N. Am., 32 N.J. 17, 23, 158 A.2d 825 (I960)). In a month-to-month tenancy where there is no written lease, tenants impliedly consent to rent increases by remaining in possession of the estate after receiving a notice to quit and notice of a rent increase. 447 Assocs. v. Miranda, 115 N.J. 522, 532, 559 A.2d 1362 (1989); Harry's Village Inc. v. Egg Harbor Twp., supra, 89 N.J. at 583, 446 A.2d 862.

The question remains, however, whether in accepting some of the lease changes imposed by the landlord, the tenant must be held to have accepted all such changes, thereby precluding subsequent challenges to an undesirable lease change. As expressed by Mr. Justice Clifford for a unanimous Court — "We think not." 447 Assocs. v. Miranda, supra, 115 N.J. at 532, 559 A.2d 1362.

"We therefore do not understand the statute to mean that a tenant must demonstrably refuse to accept a lease term, reasonable or otherwise, at the precise time the renewed tenancy begins. Put differently, acceptance of a renewal lease should not bar tenants from later challenging the reasonableness of a term contained therein." Ibid.

It cannot be assumed that a lease change was reasonable or that an unreasonable change was consented to merely because it was included in a notice of rent increase ratified by continued possession of the leasehold estate. Courts must examine the manner by which the lease changes were accomplished and weigh the arguments supporting the lease changes as against tenants' claims of hardship. Id. at 535, 559 A.2d 1362.

In recent years, New Jersey and other jurisdictions have shown an increasing tendency to construe landlord-tenant law in accordance with conventional doctrines and principles of contract law. McGwire v. City of Jersey City, 125 N.J. 310, 321, 593 A.2d 309 (1991) (citing Berzito v. Gambino, 63 N.J. 460, 468-69, 308 A.2d 17 (1973) (implied warranty of habitability and covenant to pay rent seen as...