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Schlesinger v. Brown

Decided: October 12, 1971.

LEONARD J. SCHLESINGER, PLAINTIFF,
v.
LAWRENCE BROWN, DEFENDANT



Yanoff, P.J.D.C.

Yanoff

The narrow issue in this case is whether a landlord in a week-to-week tenancy may have relief by way of dispossess pursuant to the provisions of N.J.S.A. 2A:18-53(a).

Defendant is a week-to-week tenant who was served with two weeks' notice to vacate. There is no question that the form of notice is sufficient and that service was made in compliance with the requirements of the statute. The basic difficulty is that the District Court Act, N.J.S.A. 2A:18-51 et seq. , makes no provision for dispossess in holdover cases in tenancies of this kind. I therefore am constrained to hold in favor of the tenant for the reasons set forth hereafter.

At common law the landlord's sole method of obtaining possession from a defaulting or holdover tenant was by action of ejectment. Den ex dem. Decker v. Adams , 12 N.J.L. 99 (Sup. Ct. 1830); Den ex dem. McEowen v. Drake , 14 N.J.L. 523 (Sup. Ct. 1835); Den v. Wade , 20 N.J.L. 291 (Sup. Ct. 1844).

Thus a landlord's power to dispossess his tenant by summary proceedings is entirely the creation of statute. The first dispossess act in this state was L. 1847, p. 142, cited in Hopper and Broomhead ads. Chamberlain , 34 N.J.L. 220 (Sup. Ct. 1870).

23 N.J. Practice (LeWine, Landlord & Tenant Law), ยง 3231 at 486 (1962) states:

Summary dispossession proceedings are a special action created by statute for the purpose of enabling a landlord to recover from his tenant the possession of real estate speedily and easily. This action was intended to overcome the obstacles incident to ejectment whereby the tenant could resort to technical delays and withhold the possession of the premises for an indefinite period.

The sole purpose of the statute is to enable the landlord to recover possession in proper case and the resulting judgment is not res adjudicata. McWilliams v. King , 32 N.J.L. 21 (Sup. Ct. 1866); Hopper and Broomhead ads Chamberlain, supra; Van Vlaanderen Machine Co. v. Fox , 95 N.J.L. 40 (Sup. Ct. 1920); Academy Spires, Inc. v. Jones , 108 N.J. Super. 395 (Law Div. 1970); Vineland Shopping Center, Inc. v. DeMarco , 35 N.J. 459, 462 (1961).

In the event the landlord wrongfully exercises the power to dispossess, the tenant's remedy is by way of action against the landlord. Section 59 of the statute (N.J.S.A. 2A:18-59) explicitly provides that a landlord shall remain liable in a civil action for "unlawful proceedings." Academy Spires, Inc. v. Jones, supra , at 400; Construction & Renting Corp. v. Stein , 6 N.J. Super. 239 (App. Div. 1950).

It has long been the rule that the District Court Act must be strictly followed if the landlord is to be given relief under it. The cases cited by the court in Marini v. Ireland , 56 N.J. 130 (1970), 137-138 make clear that the power of the County district court to dispossess is confined to the areas conferred upon it by the statute. Although that case involved a nonpayment of rent situation, the court's statement that

The jurisdictional issue, i.e. , the statutory basis for removal, can be twice raised in a dispossess action. First, by motion directed at the complaint for failure to accurately ...


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