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Delmat Corp. v. Kahn

Decided: February 9, 1977.

DELMAT CORPORATION, PLAINTIFF-APPELLANT,
v.
MARIE KAHN, DEFENDANT-RESPONDENT



Lynch, Milmed and Antell. The opinion of the court was delivered by Milmed, J.A.D. Antell, J.A.D. (dissenting).

Milmed

Plaintiff, owner of the nine-family apartment building at 433 William Street in East Orange, appeals from the dismissal of its complaint which sought possession of an apartment occupied by defendant in the building.

The facts may be briefly summarized. In November 1973 the parties entered into an oral month-to-month tenancy and defendant-tenant paid to plaintiff-landlord a security deposit of $220. Plaintiff failed to comply with the 1973 amendment to N.J.S.A. 46:8-19.*fn1 Thereafter, in accordance

with the provisions of that statute, defendant notified plaintiff that the security money was to be applied on account of the January 1975 rent for the apartment.*fn2 Subsequently, plaintiff served defendant with a notice that on March 1, 1975 she (defendant) was to quit and vacate the apartment which she occupied, but that if she remained in possession after that date, she would be required to pay to plaintiff a security deposit in the amount of $367.50. Defendant was thereafter served with another notice, this one dated April 14, 1975, that she was to quit and vacate the premises on June 1, 1975 and that her "present tenancy" was

The trial judge held that the landlord's demand for the further security deposit was unreasonable and unwarranted. We agree. N.J.S.A. 2A:18-61.1, N.J.S.A. 46:8-19.

As pointed out by this court in Saracino v. Capital Properties Associates, Inc. , 50 N.J. Super. 81 (App. Div. 1958):

Although the authorities are in disagreement over the nature of a month-to-month tenancy, see 51 C.J.S. Landlord and Tenant § 145, pp. 746-747; 2 Harper and James, Law of Torts (1956), § 27.16, p. 1507, n. 6; 1 American Law of Real Property (1952), § 3.23, p. 221 et seq. , New Jersey follows the view that such a tenancy is a continuing one and not a new relationship for each

month. Barwick v. Gendel Realty Co. , 11 N.J. Super. 6, 9 (App. Div. 1950); cf. Jador Service Co. v. Werbel , 140 N.J. Eq. 188 (E. & A. 1947). * * * [at 87]

See also, Stamboulos v. McKee , 134 N.J. Super. 567, 570 (App. Div. 1975).

Plaintiff urges that we cast aside this judicial approach to a month-to-month tenancy in this case in favor of a "rule" which would provide "that a month-to-month tenancy expires at the end of each month and is renewed on the first day of the succeeding month." We discern no compelling reason for doing so. The above quoted view, expressed in Saracino and reiterated in Stamboulos , is eminently sound. Furthermore, the 1973 amendment to N.J.S.A. 46:8-19*fn3 specifically provides in circumstances such as are here present that after notifying the landlord that the "security money be applied on account of rent payment * * * due or to become due from the tenant, * * * thereafter the tenant shall be without obligation to make any further security deposit during the term of his lease and the person receiving the money so deposited [the landlord] shall not be entitled to make further demand for a security deposit." We are satisfied that the term "lease" as used in the statute is intended to cover both written and parol leases, in short, "[a]ny agreement which gives rise to [a] relationship of landlord and tenant." Black's Law Dictionary (rev. 4 ed. 1968), at 1035, 1036.

Beyond this, "good cause" for eviction under N.J.S.A. 2A:18-61.1 has not been shown. See also N.J.S.A. 2A:42-10.10(a) and (d). The dissent questions the "fairness" of our reference to this latter statute, stating, in part: "This is the 'Reprisal' Act, and the question of whether this action was taken by the landlord as a form of reprisal was never even suggested in the county ...


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