The language of the notice is specified in N.J.S.A. 2A:18-61.9. A tenant who receives notice of eviction under N.J.S.A. 2A:18-61.2 g is to receive from the owner "moving expense compensation of (sic) waiver of payment of 1 month's rent." N.J.S.A. 2A:18-61.10. Comparable housing may be requested of the landlord by the tenant, and in any proceeding under N.J.S.A. 2A:18-61.1 k the owner must prove that the tenant was offered comparable housing and given a chance to inspect and examine that housing. N.J.S.A. 2A:18-61.11. Under this provision, courts can grant up to five stays of one year each if the court is not satisfied that the tenant has been offered comparable housing and has had a reasonable opportunity to inspect that housing; no more than a one-year stay shall be granted if the owner waives payment of five months' rent. The Department of Community Affairs is required to adopt rules and regulations establishing procedures implementing the rights granted tenants under the act. N.J.S.A. 2A:18-61.12.
The foregoing provisions make it clear that the New Jersey Legislature intended its legislation to be the exclusive source of law regulating eviction of tenants from apartments being converted to condominiums. The statute sets out in great detail the procedures that must be followed by a landlord before the removal can take place. The statute also specifies the rights and remedies available to tenants faced with the prospect of losing their apartments through conversion. Notice requirements are spelled out. Tenants are given a chance to buy their apartments from the landlord. The landlord must provide comparable housing and give the tenants a chance to inspect those units. This complex and thorough treatment of the question of what steps are necessary before eviction occurs is evidence of a clear and unmistakable intent to have a state-wide policy on removal of tenants when an apartment is converted. Balancing the rights of tenants to keep their apartments as tenants against the rights of landlords to alter the form of ownership of the residential units, the legislature arrived at a comprehensive scheme which takes the interests of both sides into account. Pervasive regulation by the legislature, if not determinative on the question of preemption, strongly suggests that preemption should be found. See Garden State Farms, Inc. v. Bay, supra, 77 N.J. at 450, 390 A.2d 1177; Overlook Terrace Management Corp. v. Rent Control Board of West New York, 71 N.J. 451, 461, 366 A.2d 321 (1976); Township of Little Falls v. Bardin, supra, at 17. Similarly, the very depth of the legislation supports the belief that the legislature intended the rules on this subject to be uniform throughout the state, without variation among municipalities and with its legislation being exclusive in the field. That, too, weighs in favor of finding preemption. Overlook Terrace Management, supra, 71 N.J. at 461, 366 A.2d 321.
Decisive, however, on the issue of preemption is that defendant's ordinance conflicts with state policy. See Garden State Farms, supra, 77 N.J. at 450, 390 A.2d 1177; Ringlieb v. Township of Parsippany-Troy Hills, 59 N.J. 348, 352-53, 283 A.2d 97 (1971); Summer v. Teaneck, 53 N.J. 548, 554, 251 A.2d 761 (1969); Township of Little Falls, supra, at 17. Under the ordinance, for a one-year period no conversions can take place, and during that period "no one can request a tenant to vacate a unit as a consequence of a conversion of said unit to a condominium." Yet, under state law tenants may be requested to leave an apartment if conversion occurs, provided the tenant chooses not to exercise his right to purchase the unit and the landlord follows the statutory procedures. Thus, assuming all other requirements are met, a landlord has the right under state law to evict a tenant once conversion is completed.
It is equally clear that under New Jersey law a municipality may not enact an ordinance which is inconsistent with N.J.S.A. 2A:18-61.1 et seq. In Brunetti v. Borough of New Milford, 68 N.J. 576, 350 A.2d 19 (1975), New Milford limited the grounds on which an action for removal could be maintained. Plaintiffs contended that the borough was preempted by N.J.S.A. 2A:18-61.1, and the Supreme Court agreed. The Court said that after the enactment of that statute, "which sets forth specific enumerated grounds of eviction, there can no longer be any doubt that the Legislature intended to preempt this area of the law. Consequently, we hold that provisions in municipal ordinances which set forth grounds for eviction or dispossession are invalid as having been preempted by state enactments." Id. at 603, 350 A.2d at 33. In an accompanying footnote, the Court said that it was not necessary to reach plaintiffs' claim that the provisions in question prevented plaintiffs from converting an apartment into a condominium. The Court added, "To pursue this complaint further plaintiffs must challenge the validity of the pertinent State statutes directly." Id. at 603 n.26, 350 A.2d at 33 n.26. Though the significance of the latter comment is perhaps obscure, what emerges from the case is that municipalities lack the power to change the permissible grounds for eviction. See also Guttenberg Savings and Loan Association v. Rivera, A-2752-78 (App.Div. Dec. 11, 1979) (without explicitly mentioning preemption, court reversed order evicting tenants because ground for eviction not listed in Anti-Eviction Act; common law rule cannot "defeat the Legislature's obvious purpose or . . . lessen the statute's plainly intended scope.") Defendant's ordinance has the effect of excluding conversion to condominiums as a basis for evicting tenants. However, N.J.S.A. 2A:18-61.1 k explicitly allows tenants to be removed from an apartment because of conversion to a condominium. See generally Fishman v. Pollack, 165 N.J.Super. 235, 237-38, 397 A.2d 1144, 1145 (App.Div.1979), where the court observes, "The legal rights of the tenant who is already living in the apartment house are controlled, when conversion occurs, by the provisions of the statute, N.J.S.A. 2A:18-61.1 et seq."
The second basis for voiding the ordinance comes from the recently enacted Condominium Act. N.J.S.A. 46:8B-1, et seq. That statute regulates the creation, administration, taxing, and termination of condominiums. Condominium is defined as "the form of ownership of real property" having certain specified characteristics. 46:8B-3(h). The penultimate provision of the Act reads in part, "All laws, ordinances and regulations concerning planning, subdivision and zoning, shall be construed and applied with reference to the nature and use of the condominium without regard to the form of ownership." N.J.S.A. 46:8B-29. This means that municipalities are forbidden to place restrictions on condominiums that do not also apply to all other forms of ownership. If the Claridge House converts its rental units into condominiums "(t)he use of the land will not be affected. Planning controls . . . cannot be employed by a municipality to exclude condominiums or discriminate against the condominium form of ownership, for it is use rather than form of ownership that is the proper concern and focus of zoning and planning regulation." Maplewood Village Tenants Association v. Maplewood Village, 116 N.J.Super. 372, 377, 282 A.2d 428, 431 (Ch.1971).
In enacting the ordinance in question, the defendant has run afoul of the limitation on its police powers imposed by the Act. The goal of the Condominium Act is to regulate condominiums on a state-wide basis; regulations enacted by municipalities that affect condominiums must be based on the "nature and use" of the condominium and not on the fact that it is a condominium. Defendant's ordinance, though, is aimed solely and directly at the form of ownership. Ordinance No. 15-79 can be viewed only as a law that discriminates on the basis of the form of ownership. This is obviously inconsistent with N.J.S.A. 46:8B-29.
The State legislature has dealt with the subject of condominiums in depth on at least three occasions. One statute regulates the manner in which evictions may take place, while the Condominium Act resolves many questions concerning rights and responsibilities in creating and maintaining condominiums. The third piece of legislation is the Planned Real Estate Development Full Disclosure Act, N.J.S.A. 45:22A-1 et seq. The Act requires developers to register developments, including condominiums, with the Division of Housing and Urban Renewal. N.J.S.A. 45:22A-26. The statute regulates the contents of the registration statement. N.J.S.A. 45:22A-27.
Taken together, these three statutes amount to a comprehensive, detailed, and thorough scheme for regulating condominiums. The point that must be emphasized is that the statutes regulate they do not preclude. Faced with a host of problems arising out of this new form of ownership, the legislature has tried to cure these problems by placing controls on condominiums. At the same time, the legislature has removed some obstacles that otherwise made it harder to create condominiums. Tenants can be evicted to make way for conversions, and condominiums cannot be discriminated against in zoning or planning because of its form of ownership.
The moratorium enacted by the defendant does not regulate, but forbids.
Because of the prohibition it places on the conversion of apartments to condominiums, even if for one year, the ordinance deleteriously affected what was intended to be a state-wide program of regulation. Since the moratorium stands in the way of executing the twin legislative goals of permitting while regulating, the ordinance must be voided on the ground that the subject matter it covers has been preempted.
Fair Lawn Education Association v. Fair Lawn Board of Education, 79 N.J. 574, 586-87, 401 A.2d 681 (1979).
It should be stressed that the holding of the court is very narrow. Its sole effect is to void an ordinance which forbids for one year the converting of apartments into condominiums. This decision does not in any way impair the ability of municipalities to restrict or prohibit condominiums pursuant to traditional exercises of police power. See, e.g., Segal Construction Co. v. Zoning Board of Adjustment, 134 N.J.Super. 421, 341 A.2d 667 (App.Div.1975) (per curiam). The court simply holds that the defendant's ordinance is preempted by state law.