These two municipal court appeals were consolidated for purposes of this opinion inasmuch as they involve common questions concerning the application of our defiant trespasser statute, N.J.S.A. 2C:18-3(b), insofar as it may pertain to persons who occupy realty under color of title.
The first-captioned appeal involves an in rem tax foreclosure obtained by Fairfield Township against certain realty occupied by James and Patricia Pierce. The Pierces had been living on this property under a claim of title granted to them by a relative. However, they were not the record owners. Fairfield Township notified the Pierces to vacate under the authority of the in rem tax foreclosure secured in the Superior Court, Chancery Division. Defendants had been living at the location both before and after the tax foreclosure action for a period of five years.
In the second-captioned appeal defendant Clay Wilson, a/k/a Clay Dell, was in possession of rental premises originally leased
by his father. After the father's death the landlord notified Wilson to vacate the premises on the ground that the tenancy had ceased upon the father's death. Thereafter, a criminal and repossess complaint was filed against Wilson in the Millville Municipal Court.
All three defendants were convicted of criminal trespass and fined by the respective municipal courts.
Defendants in both appeals assert that the criminal trespass statute is not applicable under the facts of these cases and that appropriate civil remedies are available to the prosecuting parties. James and Patricia Pierce claim a right to possession although they are admittedly delinquent taxpayers. Clay Wilson claims to be a month-to-month tenant. His claim is a viable one based on the principle that the death of a tenant from month-to-month does not terminate the tenancy and the interest of the tenant therein passes to his personal representative. Baum v. Tazwell , 26 N.J.Misc. 292, 61 A.2d 12 (Cir.Ct.1948); Levigton v. Tuly , 126 N.J. Eq. 552 (Ch.1940); Gross v. Peskin , 101 N.J. Super. 468 (App.Div.1968).
The question presented is whether the defiant trespasser statute, N.J.S.A. 2C:18-3(b), is applicable in the absence of an action for possession where an individual occupying premises under a claim of right to possession disregards a notice to vacate.
Generally a trespass as such is viewed as a private wrong and was not an indictable offense at common law. State v. Burroughs , 7 N.J.L. 426 (Sup.Ct.1802). Any criminal sanctions against a trespasser must necessarily be statutory. Hopewell Tp. v. Gruchowski , 29 N.J. Super. 605 (Cty.Ct.1954).
The recently enacted trespass statute, N.J.S.A. 2C:18-3, states in pertinent part:
b. Defiant trespasser. A person commits a petty disorderly persons offense, if knowing that he is not licensed or privileged to do so, he enters or remains in any place as ...