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Stamboulos v. Kee

Decided: June 17, 1975.

DE METRIOS STAMBOULOS AND GEORGIA STAMBOULOS, HIS WIFE, AND ANNA STAMBOULOS, PLAINTIFFS-RESPONDENTS,
v.
CHRIGHTON MC KEE AND JOHANNA MC KEE, DEFENDANTS-APPELLANTS



Carton, Crane and Kole. The opinion of the court was delivered by Kole, J.A.D.

Kole

Defendants have been month-to-month tenants of an apartment in a four-family apartment building in Fort Lee for a substantial period of time. Plaintiffs acquired title to the building on May 31, 1974. On that day they served on defendants a notice to quit and demand for possession of the apartment as of June 30, 1974. One of the plaintiffs apparently desired to reside therein. After the notice was served it appeared that another apartment in the building would become vacant in July, but it had been promised to a friend of one of the plaintiffs.

Defendants held over beyond June 30. This dispossess action was thereafter instituted. The trial judge held that plaintiffs had complied with the 30-day notice required by law; that the right to possession of the apartment vested in the landlord when the notice was given on May 31, 1974, and that the newly enacted eviction statute, effective June 25, 1974, pertaining to residential property such as that here involved, L. 1974, c. 49,*fn1 did not apply since the landlords' vested right to possession accrued prior to its effective date. He granted a judgment for possession to plaintiffs. This appeal followed.

There is adequate credible evidence to sustain the trial judge's determination that the required 30-day notice was served in time, as required by law. That finding, accordingly,

is affirmed. State v. Johnson, 42 N.J. 146 (1964).

We have concluded, however, that the judge erred in holding that plaintiffs' right to possession vested upon service of the notice to quit and demand for possession, rather than on June 30, 1974 when possession was to be surrendered. Hence, the new eviction statute, effective June 25, 1974, applied to this proceeding. Since good cause for eviction under that statute was not shown, the action should have been dismissed. See 25 Fairmount Ave., Inc. v. Stockton, 130 N.J. Super. 276 (Cty. D. Ct. 1974).

We are in substantial agreement with the rationale of Stockton. As applied to a month-to-month tenancy, the right to possession in the landlord did not arise until the time specified in the 30-day notice for the termination of the tenancy -- here, June 30, 1974. On that date the new statute was applicable and precluded, with respect to residential tenants such as defendants, the termination of the month-to-month tenancy, the vesting of a right to possession in the landlord, or the dispossession of the tenants until and unless one of the "good cause" requirements specified in ยง 2 of the statute, N.J.S.A. 2A:18-61.1, was shown.

We do not agree with plaintiffs that N.J.S.A. 2A:18-56, requiring one month's notice to quit in order to terminate a month-to-month tenancy, indicates that the tenancy is terminated merely by the giving of the notice. That provision has been said to be intended to protect the tenant by giving him time to readjust his affairs before his tenancy is terminated on the date set forth in the notice. Gretkowski v. Wojciechowski, 26 N.J. Super. 245, 250 (App. Div. 1953); Pa. R.R. Co. v. L. Albert & Son, Inc., 26 N.J. Super. 508, 511 (App. Div. 1953), cert. den. 13 N.J. 361 (1953). See also, Bhar Realty Corp. v. Becker, 49 N.J. Super. 585 (App. Div. 1958).

Moreover, a month-to-month tenancy is a continuing tenancy, which does not give rise to a new relationship for each month. Even under the law as it existed prior to this

statute, a new tenancy was established only when the existing monthly tenancy was actually ended and the new one commenced. Thus, where the landlord gave a proper notice to quit and demand for possession at the end of the month, unless the tenant paid an increased rental commencing the beginning of the following month, the holding over of the tenant created a new tenancy at the increased rental. See Bhar Realty Corp. v. Becker, supra; Saracino v. Capital Properties Associates, Inc., 50 N.J. Super. 81, 87 (App. Div. 1958); Hertzberg v. Siegel, 8 N.J. Super. 226 (App. Div. 1952); Dector v. Phelps, 136 N.J.L. 53 (Sup. Ct. 1947); Finkelstein v. Herson, 55 N.J.L. 217 (Sup. Ct. 1893).

Additionally, the notice to quit under N.J.S.A. 2A:18-56 is one of the procedural requirements to effect a termination of the tenancy in order to give the county district court jurisdiction in a dispossess action. The mere giving of it does not create or affect substantive rights between a landlord and tenant. Stockton, supra, 130 N.J. ...


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