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Schultz v. Kneidl

Decided: July 28, 1959.


Kolovsky, J.s.c.


[56 NJSuper Page 578] On March 25, 1957 the one-story brick building at 16 Wanaque Avenue, in the Borough of Pompton Lakes, occupied by plaintiffs for the conduct of their printing, publishing, and advertising business, was wrecked by fire. The damage and destruction to the front, rear and south walls, and to the roof, the roof beams and the steel beams of the building was so extensive that the borough building inspector ordered those three walls demolished. All that was left standing was the north wall, a party wall between 16 Wanaque Avenue and the building to the north, which wall, although cracked, could be and was repaired. The floor of the building was burned and charred. Affidavits submitted by defendant assert, and they are not contradicted, that the plumbing, electric and heating apparatus in the cellar were beyond repair; affidavits submitted

by plaintiffs, also uncontradicted, indicate that the cellar walls have not been destroyed and that "the cement floor in the rear 60% of the building still remains."

The premises, which are unoccupied, still are in the same condition as they were after the walls were demolished except that the debris has been removed.

Plaintiffs' possession of the demised premises, "lands and premises located at No. 16 Wanaque Av," was as lessees under a written lease executed by defendant as lessor, dated November 7, 1949, for a term scheduled to end on October 1, 1964.

Plaintiffs contend that defendant is liable to them in damages by reason of defendant having failed and refused to perform her alleged obligation to "repair, restore, and rebuild the building and premises."

The matter is before the court on cross-motions for summary judgment on the issue of liability.

If such alleged obligation and liability in damages do exist, they must be found in the provisions of the lease. Absent such lease provision, the asserted liability in damages finds no support in either the common law or the statutory law.

At common law, if there was not a contrary agreement on his part, a landlord was under no obligation to his tenant to repair or rebuild a leased building which was damaged or destroyed by fire. Lyon v. Buerman , 70 N.J.L. 620, 621 (Sup. Ct. 1904); Naumberg v. Young , 44 N.J.L. 331 (Sup. Ct. 1882); Heintze v. Bentley , 34 N.J. Eq. 562 (E. & A. 1881). On the contrary, unless a lease stipulation so provided, even complete destruction of the leased premises did not relieve the tenant of his obligation to pay rent, Carley v. Liberty Hat Mfg. Co. , 81 N.J.L. 502 (E. & A. 1911); Pivnick v. Seaboard Supply Co. , 30 N.J. Super. 605, 611 (Cty. Ct. 1954); and a lease provision requiring the tenant to deliver up the premises in the same condition as upon the demise, obligated him to repair fire damage and, in case of total destruction, to rebuild. Pivnick v. Seaboard

Supply Co., supra; Coles v. Celluloid Mfg. Co. , 39 N.J.L. 326 (Sup. Ct. 1877), affirmed o.b. 40 N.J.L. 381 (E. & A. 1878).

Nor was an obligation which would subject him to damages imposed on the landlord by the statutes, now R.S. 46:8-6 and 7, enacted to relieve tenants from the hardship of the common-law rule.

The cited sections, which do not apply where the parties have otherwise stipulated in their agreement of lease, provide that if a building or buildings erected on leased premises are totally destroyed by fire or otherwise, without the fault of the lessee, the lease comes to an end, rent being payable up to the time of destruction (R.S. 46:8-7); if the building or buildings are injured by fire without the fault of the lessee, "the landlord shall repair the same as speedily as possible"; in default of such repair the rent ceases until such time as the building or buildings are put in complete repair (R.S. 46:8-6).

Neither section imposes any liability in damages on the landlord. Total destruction merely terminates the lease, and even R.S. 46:8-6, which expressly requires the landlord to repair fire damage as speedily as possible, does not make the landlord liable in damages for failure to do so. "The only penalty which it imposes upon him for failure to comply with this requirement is that the rent shall cease so long as he neglects to comply with this provision of the statute." Sayre v. Roseville Motor Co. , 85 N.J.L. 10 (Sup. Ct. 1913). Accord, Lesser v. Kline , 101 Conn. 740, 127 A. 279 (Sup. Ct. Err. 1925).

The complaint alleges that defendant's covenant "to repair, restore and rebuild said building and premises" are to be found in article XIII and other provisions of the lease, but in their brief, plaintiffs rely, and properly so, solely on article XIII.

The other provisions of the lease are not pertinent to the issue presented. They include, inter alia , an agreement by the lessor to initially ...

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