Parkway, Inc. v. Curry

• Decision Date: 11 September 1978
• Citation: Parkway, Inc. v. Curry, 392 A.2d 1260, 162 N.J.Super. 410 (N.J. Cty. Dist. Ct. 1978)
• Parties: PARKWAY, INC., Plaintiff, v. Mabel Briggs CURRY, Defendant.
• Court: New Jersey District Court

Page 410

162 N.J.Super. 410

392 A.2d 1260

PARKWAY, INC., Plaintiff, v.Mabel Briggs CURRY, Defendant.

District Court, Essex County, New Jersey.

Sept. 11, 1978.

Leo Neiwirth, Newark, for plaintiff.

Eldridge Hawkins, East Orange, for defendant.

BAIME, J. D. C.

The question presented in this case is of first impression.At issue is whether defendant's failure to pay double rent, as mandated by N.J.S.A. 2A:42-5, ¹ constitutes sufficient grounds for eviction under New Jersey's summary dispossess statutes.²Resolution of the question depends upon a reconciliation of two competing statutory commands.Specifically, N.J.S.A. 2A:42-5 provides that a tenant is to pay double rent where he fails to vacate the demised premises in accordance with a notice terminating a periodical tenancy previously served upon the landlord.However, the Anti-Eviction Act does not expressly authorize the removal of a residential tenant who holds over.In point of fact, the Act permits a residential tenant to remain indefinitely in the demised premises as long as he adheres to the terms of the lease ³ and does not willfully destroy the landlord's property ⁴ or otherwise act in a disorderly manner ⁵.Nevertheless, the summary dispossess statutes provide for summary eviction where a tenant fails to pay rent in accordance with his lease.N.J.S.A. 2A:18-61.1(a).The principal question raised here is whether the failure of the defendant to pay the statutory penalty prescribed by N.J.S.A. 2A:42-5 constitutes good cause for summary eviction.

Plaintiff argues that defendant violated the proscription set forth in N.J.S.A. 2A:42-5 when she refused to vacate the demised premises in accordance with a notice to quit which she previously served upon the landlord, thereby subjecting her to the statutory penalty requiring the payment of double rent.It is uncontroverted that defendant has continued to pay rent in accordance with her lease.However, she has refused to pay the statutory penalty as required by N.J.S.A. 2A:42-5.Plaintiff's claim is thus grounded upon N.J.S.A. 2A:18-61.1(a) which provides that the failure to "pay rent due and owing under the lease" constitutes "good cause"⁶ for eviction.

Defendant argues that the notice served upon the landlord was defective in various particulars and, therefore, did not effectively terminate her month-to-month tenancy.She further contends that the liability imposed by N.J.S.A. 2A:42-5 is in the nature of a statutory penalty and does not constitute "rent" as that term is utilized in N.J.S.A. 2A:18-61.1(a).Finally, she argues that the penalty prescribed by N.J.S.A. 2A:42-5 was impliedly repealed by the Legislature's subsequent enactment of the Anti-Eviction Act.

The facts are not in dispute.On November 15, 1974defendant entered into a two-year written lease with respect to residential premises located in Irvington.Under the rental agreement defendant was to pay monthly installments in the sum of $188.The lease further provided that defendant was to give plaintiff 60 days notice in the event she intended to vacate the premises at the expiration of the two-year term.It would appear that both parties were satisfied with the agreement and complied fully with its provisions.

The lease expired on November 30, 1976, but defendant continued to reside in the premises on a month-to-month basis at an increased rental of $195.On June 6, 1978defendant gave written notice to plaintiff indicating her intention to vacate the apartment.In the notice defendant stated that her tenancy was to terminate on June 30, 1978.Evidently, defendant's decision to terminate the month-to-month tenancy was precipitated by a dispute with plaintiff concerning the conditions of the apartment.In any event, it is uncontroverted that defendant subsequently met with a representative of plaintiff at the latter's office and attempted to revoke her notice to quit the premises.Plaintiff refused defendant's request and ultimately instituted an action to evict the tenant on the basis of her failure to adhere to the terms of the notice to terminate the tenancy.Another judge of the Essex County District Court dismissed plaintiff's complaint in a letter opinion finding that the "basis upon which (the landlord) sought to dispossess the tenant was not one of the designated statutory grounds for removal."Specifically, the judge concluded that N.J.S.A. 2A:18-61.1 does not expressly authorize summary eviction of a holdover residential tenant.However, the trial judge did not have occasion to rule upon the question presented here, I. e., whether the failure of a holdover tenant to pay the penalty exacted by N.J.S.A. 2A:42-5 permits summary eviction.Shortly thereafter plaintiff's attorney sent notice to defendant advising her that henceforth the monthly rental was to be increased to $390 by virtue of her "holdover" status.The attorney also enclosed a copy of N.J.S.A. 2A:42-5.Following service of the notice upon defendant, plaintiff received a check in the sum of $195 which it credited against the $390 allegedly due with respect to the August rent.Plaintiff instituted this action upon defendant's refusal to tender the additional $195 which the landlord claims is due and owing.

I

Defendant first contends that the notice purportedly terminating her tenancy was defective.It is argued that defendant's letter of June 6, 1978 did not effectively terminate her tenancy because it failed to provide the landlord with one month's notice.Since the notice was ineffective, defendant claims that the double rent penalty under N.J.S.A. 2A:42-5 is inapplicable.

The short answer to defendant's argument is that plaintiff had the right to waive any defect in the notice.Although it is axiomatic that neither a landlord nor a tenant can terminate a tenancy from month to month except upon proper notice, Hanks v. Workmaster, 75 N.J.L. 73, 75, 66 A. 1097(Sup.Ct.1907), it is equally well settled that any defect may be waived.Traubman v. Sevestre, 4 N.J.Misc. 463, 464, 133 A. 292(Sup.Ct.1926).Here, there can be no doubt that plaintiff waived defendant's failure to provide it with a full month's notice.⁷In point of fact, plaintiff insisted that defendant vacate the premises when the latter sought to revoke the notice.Defendant cannot now be heard to contend that her letter did not effectively terminate the tenancy.

II

Defendant next contends that the penalty provided by N.J.S.A. 2A:42-5 does not constitute "rent due and owing under the lease," as that phrase is utilized in N.J.S.A. 2A:18-61.1(a).More specifically, it is argued that the liability imposed by N.J.S.A. 2A:42-5 is in the nature of a statutory penalty.The principal thrust of defendant's argument is that the liability imposed by the statute does not constitute "rent" arising from a "lease."

As noted previously, N.J.S.A 2A:42-5 mandates the payment of double rent where a tenant gives notice of his intention to quit the premises but fails to adhere to its terms.Suffice it to say, the statute is of ancient lineage, having had its genesis in 4 Geo. II, c. 28, § 1 and 11 Geo. II, c. 19, § 18⁸.Wagner v. Mayor, etc., Newark, 42 N.J.Super. 193, 210, 126 A.2d 71(Law Div.1956), rev'd24 N.J. 467, 132 A.2d 794(1957);200 Washington Street Corp. v. Bettone Hearing Service, 32 N.J.Super. 81, 84, 107 A.2d 828(Law Div.1954).Nevertheless, the statutory penalty has been applied in a relatively few instances.See, E. g., Ancona Printing Co. v. Welsbach, 92 N.J.L. 204, 104 A. 132(E. & A.1918);Mason v. Haurand, 82 N.J.L. 645, 82 A. 892(E. & A.1912);Ricci v. Claire, 21 N.J.Misc. 266, 33 A.2d 591(D.Ct.1943).Despite the paucity of published decisions the statutory design is plain.In short, the penalty exacted under the statute was intended to punish a tenant who willfully holds over after giving notice of his intention to quit.Wagner v. Mayor, etc., Newark, supra, 42 N.J.Super. at 210-211, 126 A.2d 71.

The legislative objective underlying the enactment of the 1974 amendments to the summary dispossess statutes was quite different.With minor exceptions ⁹, the statutory scheme destroyed the ancient concept of the holdover tenant with respect to residential tenancies in summary eviction proceedings.Presently, a residential tenant may be evicted in a summary proceeding only upon a showing of "good cause."N.J.S.A. 2A:18-61.3.Further, the statute defines good cause and delimits the grounds upon which a summary eviction can be obtained.N.J.S.A. 2A:18-61.3.In essence, the 1974amendments provide the tenant with the Option of a lifetime tenancy unless he violates his obligations under the lease.In sum, the amendments withdrew from property owners the right of eviction on the basis of a mere notice to quit or termination of leasehold, "which has been a recognized incident of property ownership from the time of Henry VIII. * * * "Gardens v. Passaic, 130 N.J.Super. 369, 375, 327 A.2d 250, 253(Law Div.1974), aff'd141 N.J.Super. 436, 358 A.2d 805(App.Div.1976).To a large extent, therefore, the public interest sought to be advanced by N.J.S.A. 2A:42-5 conflicts with the 1974amendments.

The summary dispossess remedy "is a creature of the Legislature"(Cahayla v. Saikevich, 119 N.J.Super 116, 118, 290 A.2d 311, 312(Cty.D.Ct.1972)), and was "intended to overcome the obstacles incident to ejectment whereby the tenant could resort to technical delays and withhold possession for an indefinite period."Le Wine, Landlord and Tenant Law, § 3231 at 486(1962).Since the landlord's power to evict his tenant in summary proceedings "is entirely the creation of statute,"Schlesinger v. Brown, 116 N.J.Super. 500, 502, 282 A.2d 790, 791(Cty.D.Ct.1971), its provisions are to be strictly construed.SeeCarteret Properties v. Variety Donuts, Inc., 49 N.J. 116, 124, 228 A.2d 674(1967).It is thus necessary to distinguish between the common law right of a landlord to regain possession of his property and...