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Parkway Inc. v. Curry

September 11, 1978

PARKWAY, INC., PLAINTIFF,
v.
MABEL BRIGGS CURRY, DEFENDANT



Baime, J.d.c.

Baime

[162 NJSuper Page 411] The question presented in this case is of first impression. At issue is whether defendant's failure to pay double rent, as mandated by N.J.S.A. 2A:42-5,*fn1 constitutes sufficient grounds for eviction under New Jersey's summary dispossess statutes.*fn2 Resolution of the question depends upon a reconciliation of two competing statutory

commands. Specifically, N.J.S.A. 2A:42-5 provides that a tenant is to pay double rent where he fails to vacate the demised premises in accordance with a notice terminating a periodical tenancy previously served upon the landlord. However, the Anti-Eviction Act does not expressly authorize the removal of a residential tenant who holds over. In point of fact, the Act permits a residential tenant to remain indefinitely in the demised premises as long as he adheres to the terms of the lease*fn3 and does not willfully destroy the landlord's property*fn4 or otherwise act in a disorderly manner.*fn5 Nevertheless, the summary dispossess statutes provide for summary eviction where a tenant fails to pay rent in accordance with his lease. N.J.S.A. 2A:18-61.1(a). The principal question raised here is whether the failure of the defendant to pay the statutory penalty prescribed by N.J.S.A. 2A:42-5 constitutes good cause for summary eviction.

Plaintiff argues that defendant violated the proscription set forth in N.J.S.A. 2A:42-5 when she refused to vacate the demised premises in accordance with a notice to quit which she previously served upon the landlord, thereby subjecting her to the statutory penalty requiring the payment of double rent. It is uncontroverted that defendant has continued to pay rent in accordance with her lease. However, she has refused to pay the statutory penalty as required by N.J.S.A. 2A:42-5. Plaintiff's claim is thus grounded upon N.J.S.A. 2A:18-61.1(a) which provides that the failure to "pay rent due and owing under the lease" constitutes "good cause"*fn6 for eviction.

Defendant argues that the notice served upon the landlord was defective in various particulars and, therefore, did not

effectively terminate her month-to-month tenancy. She further contends that the liability imposed by N.J.S.A. 2A:42-5 is in the nature of a statutory penalty and does not constitute "rent" as that term is utilized in N.J.S.A. 2A:18-61.1(a). Finally, she argues that the penalty prescribed by N.J.S.A. 2A:42-5 was impliedly repealed by the Legislature's subsequent enactment of the Anti-Eviction Act.

The facts are not in dispute. On November 15, 1974 defendant entered into a two-year written lease with respect to residential premises located in Irvington. Under the rental agreement defendant was to pay monthly installments in the sum of $188. The lease further provided that defendant was to give plaintiff 60 days notice in the event she intended to vacate the premises at the expiration of the two-year term. It would appear that both parties were satisfied with the agreement and complied fully with its provisions.

The lease expired on November 30, 1976, but defendant continued to reside in the premises on a month-to-month basis at an increased rental of $195. On June 6, 1978 defendant gave written notice to plaintiff indicating her intention to vacate the apartment. In the notice defendant stated that her tenancy was to terminate on June 30, 1978. Evidently, defendant's decision to terminate the month-to-month tenancy was precipitated by a dispute with plaintiff concerning the conditions of the apartment. In any event, it is uncontroverted that defendant subsequently met with a representative of plaintiff at the latter's office and attempted to revoke her notice to quit the premises. Plaintiff refused defendant's request and ultimately instituted an action to evict the tenant on the basis of her failure to adhere to the terms of the notice to terminate the tenancy. Another judge of the Essex County District Court dismissed plaintiff's complaint in a letter opinion finding that the "basis upon which [the landlord] sought to dispossess the tenant was not one of the designated statutory grounds for removal." Specifically, the judge concluded that N.J.S.A. 2A:18-61.1 does

not expressly authorize summary eviction of a holdover residential tenant. However, the trial judge did not have occasion to rule upon the question presented here, i.e. whether the failure of a holdover tenant to pay the penalty exacted by N.J.S.A. 2A:42-5 permits summary eviction. Shortly thereafter plaintiff's attorney sent notice to defendant advising her that henceforth the monthly rental was to be increased to $390 by virtue of her "holdover" status. The attorney also enclosed a copy of N.J.S.A. 2A:42-5. Following service of the notice upon defendant, plaintiff received a check in the sum of $195 which it credited against the $390 allegedly due with respect to the August rent. Plaintiff instituted this action upon defendant's refusal to tender the additional $195 which the landlord claims is due and owing.

I

Defendant first contends that the notice purportedly terminating her tenancy was defective. It is argued that defendant's letter of June 6, 1978 did not effectively terminate her tenancy because it failed to provide the landlord with one month's notice. Since the notice was ineffective, defendant ...


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