[119 NJSuper Page 117] This is an action to dispossess defendant from an apartment which he occupies at 68 Steinberg Avenue, Garfield, New Jersey. Plaintiff is a tenant by the entirety
with her husband, George Cahayla, from whom she has been separated since 1967. She resides in the first-floor apartment; her husband does not reside with her or upon the premises. Defendant is in possession of the second-floor apartment by virtue of an agreement made with the husband, to whom he does and has paid the rent.
On November 26, 1971, plaintiff served written notice upon defendant to vacate the premises as of January 1, 1972. The husband did not join in this notice, nor in this action.
The question raised by the facts of this case is the right of this court to entertain the action.
A summary dispossess action is a creature of the Legislature and, as such, jurisdiction is limited by the statutes. Such jurisdiction is conferred upon the county district courts by N.J.S.A. 2A:6-34 but is limited by the provisions of N.J.S.A. 2A:18-51 et seq.
The prime requisite for a summary dispossess action is the existence of a landlord-tenant relationship between the parties. A plaintiff's right to possession of property without such relationship is not cognizable by a county district court. Without a landlord-tenant relationship a plaintiff must seek possession of property through a Superior Court ejectment action. Title to the property from which a defendant is sought to be dispossessed is not a requisite to jurisdiction in the court; in fact, if proof of title is required, the court loses jurisdiction of the action.
N.J.S.A. 2A:18-52 provides
If upon trial of a landlord and tenancy proceeding the plaintiff shall not be able to prove, by lease or other evidence, his right to the possession of the premises claimed by him without proving title to lands, tenements and hereditaments, the cause shall be dismissed, provided however that an assignee or grantee of a landlord may, at the trial or hearing, offer in evidence a deed or other writing for the purpose of showing the assignment or grant by the landlord. Furthermore a deed or other writing may be received for the purpose of showing the right to possession of the premises for the recovery of which the proceedings are brought.
There are very few cases wherein this statute has been construed, and none of recent vintage. Nor are there any wherein the plaintiff was a tenant by the entirety seeking to dispossess a tenant who came into possession under authority of the other tenant by the entirety.
Gatti v. Meyer , 9 N.J.L.J. 271 (D. Ct. 1886), was a summary judgment under the Landlord and Tenant Act brought by a purchaser of the fee against the tenant. It was there held that "the contract of letting is one that attaches to the estate, and runs with the land. It is not a personal contract. The purchaser becomes a substituted landlord, and by virtue of his privity of estate with the original landlord he becomes a party to the ...