This matter comes before the court on a motion by certain of the defendants for an order dismissing the complaint for failure to state a claim upon which relief can be granted, pursuant to R. 4:6-2(e).
Defendants in this mortgage foreclosure action include the original mortgagors and their assignees, several junior mortgagees, potential judgment creditors and tenants of the mortgaged premises. The first count of the complaint demands a judgment foreclosing the mortgage held by plaintiff and the second count demands a judgment of possession against all the defendants.
The tenants' motion to dismiss is based on their contention that N.J.S.A. 2A:18-61.1 bars the tenants' removal since none of the causes for removal set forth in that statute is present here. Plaintiff maintains that the statute is inapplicable because no landlord-tenant relationship exists between plaintiff and the tenants since there has been no attornment by the tenants to plaintiff. See 30 N.J. Practice (Cunningham & Tischler, Law of Mortgages), § 373 at 328 (1975).
Because the statute in question is in derogation of a landlord's common law rights of ownership, it must be strictly construed. Floral Park Tenants Ass'n v. Project
Holding, Inc. , 152 N.J. Super. 582, 591 (Ch. Div. 1977). In so construing this statute I can find nothing to indicate that it was intended to affect a mortgagee's right to take possession upon default by the mortgagor.*fn1
N.J.S.A. 2A:18-53, as amended and supplemented by N.J.S.A. 2A:18-61.1,*fn2 governs summary actions in the county district court for possession of property. Although N.J.S.A. 2A:18-61.1 states that it governs actions both in the county district court and in the Superior Court, it appears that the reference to the Superior Court is intended to apply to dispossess actions initiated in the county district court and removed to Superior Court pursuant to N.J.S.A. 2A:18-60. The movants have not produced any authority establishing that this statute was intended to, or does in fact apply to actions other than summary dispossess actions. Absent such authority, this court is unwilling to expand the applicability of N.J.S.A. 2A:18-61.1 to cases beyond the Legislature's apparent contemplation.
In Bradley v. Rapp , 132 N.J. Super. 429, 433 (App. Div. 1975), the court stated that "[i]n * * * review of [ N.J.S.A.
2A:18-61.1], we are compelled to give primary regard to the fundamental purpose for which it was enacted." The court further stated (at 434) that "we should reach the result probably intended by the draftsman had he anticipated the situation at hand." There being no indication whatsoever that the draftsman intended to interfere with a mortgagee's right to possession, it appears that the required strict construction of the statute compels the conclusion that it does not apply to the case at hand.
Accordingly, the tenants' motion to dismiss for failure to state a ...