On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Landlord-Tenant Division, Bergen County.
McElroy, Dreier and Shebell. The opinion of the court was delivered by Dreier, J.A.D.
[200 NJSuper Page 87] Plaintiff instituted this summary dispossess action against defendants alleging a violation of N.J.S.A. 2A:18-61.1(i) a failure to accept a landlord's reasonable change of substance in the terms and conditions upon the renewal of a lease. This action was filed in the Bergen County District Court on November 28, 1983 and was continued in the Special Civil Part of the Superior Court, Bergen County, after the abolition of the County District Court on December 30, 1983. See N.J.S.A. 2A:4-3a. Jurisdiction
of the County District Court was transferred to the Superior Court as of that date. N.J.S.A. 2A:4-3c.
Defendants have appealed from the summary dispossess order entered in the Superior Court. Plaintiff alleges that after due notice defendants were required to accept an effective lease provision prohibiting pets in their apartment. In fact, such a provision had been included in defendants' lease for the fourteen years that they had been in residence. The landlord gave notice that with the renewal of the lease the clause was to be enforced, requiring that defendants either give up possession of their dog in the apartment or move. Plaintiff further contends that a "no pets" provision was reasonable and specifically authorized by Terhune Courts v. Sgambati, 163 N.J. Super. 218 (Cty D.Ct.1978), aff'd o.b. 170 N.J. Super. 477 (App.Div.1979), certif. den. 84 N.J. 418 (1980). We need not directly address the effect of Terhune Courts, since we find the facts in the instant case to be distinguishable. We reverse the judgment for possession granted below.
Defendants initially occupied their apartment under a two year written lease from May 1, 1971 to April 30, 1973. This lease contained a provision prohibiting pets on the premises. When they moved in there were no dogs on the premises, but they noted that other tenants acquired dogs between 1971 and 1973. In December of 1973 defendants decided to purchase a dog for protection, after noting a number of break-ins in the apartment complex and due to the fact that defendant Kevin Concannon often worked at night leaving his wife home alone. Before purchasing the dog, however, Mr. Concannon telephoned Mr. Hamilton, the owner and operator of Royal Associates, and requested permission to purchase the dog. Defendant testified that Mr. Hamilton told him that since defendants were such good tenants they could have a dog so long as they took care of it and kept it on a leash. Further, he was told he could keep the dog for as long a period of time as he maintained it, but with no more specific comment as to duration. For the period in excess of ten years that they have had their dog, defendants
received no complaints from management or from any other tenants regarding their dog.
Mr. Hamilton testified that defendants were one of four or five tenants to whom he had given what he called "special permission" to have a dog for as long a period of time as they controlled the dog. No permanent term or duration, however, had been established. He admitted he had never seen defendants walking their dog without a leash and did not contest defendants' assertion that they fully complied with plaintiff's conditions regarding ownership of the dog.
Through successive two year leases, plaintiff did nothing to enforce the "no pets" provision. On June 2, 1982, however, defendants received a letter addressed to all tenants in the apartments indicating that there was a problem with dogs in the complex and that all tenants would be required to get rid of their dogs. The same letter, however, contained a statement that "only people who had special permission to own a dog will be allowed to stay." Defendants later learned that dispossess actions had been commenced against other pet owners in the complex, but not against them, and no further word was received concerning the issue until May 1983 when defendants' lease was renewable. The proposed lease from plaintiff contained not only the "no pets" provision but a Rider wherein all tenants who still owned dogs specifically agreed to get rid of them by a specified date. Believing that this Rider did not apply to them because of their special permission, Mr. Concannon went to plaintiff's office in April 1983 and indicated to Mr. Hamilton that he would not sign the Rider in view of their specific agreement to the contrary, i.e., that defendants could keep their dog as long as they controlled it. Plaintiff and defendants then signed the lease without the Rider, Mr. Hamilton commenting that since the "no pets" provision was in the lease and defendants had been informed of his change in policy, the absence of the Rider would make no difference.
On June 28, 1983 plaintiff served a Notice to Cease upon defendants as required by N.J.S.A. 2A:18-61.2 and then served a Notice to Quit on September 27, 1983. During the interim period defendants paid their rent monthly as required and each payment was accepted by plaintiff. Cf. Carteret Properties v. Variety Donuts, Inc., 49 N.J. 116, 129 (1967), holding that the acceptance of rents after a Notice to Terminate constitutes a waiver as a matter of law; see also Jasontown Apartments v. Lynch, 155 N.J. Super. 254, 263 (App.Div.1978).
Terhune Courts v. Sgambati held that each successive lease was a new contract between landlord and tenant, creating a "new and separate tenancy . . . with new and separate rights and obligations. Covenants as to past tenancy have no bearing on a new leasehold." 163 N.J. Super. at 222. In the abstract, this court has noted, in dictum, that a covenant forbidding dogs in a leased apartment is reasonable. Housing Auth., Atlantic City v. Coppock, 136 N.J. Super. 432, 435 (App.Div.1975). In that case, however, the only ...