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Housing Authority v. Mishoe

Decided: May 20, 1985.

HOUSING AUTHORITY OF THE CITY OF EAST ORANGE, PLAINTIFF-APPELLANT,
v.
MILDRED MISHOE, DEFENDANT-RESPONDENT



On appeal from Essex County District Court.

Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

[201 NJSuper Page 354] In this summary dispossess action, plaintiff landlord appeals from the dismissal of its complaint for possession of an apartment

located in a public housing project sought because of defendant-tenant's alleged violation of a lease provision concerning the use of a washing machine. The appeal raises substantive issues of contract law as well as the procedural question of appellate jurisdiction. We are satisfied that our review is not barred by N.J.S.A. 2A:18-59 and in our view the complaint was improperly dismissed.

Defendant's lease for a three-bedroom apartment in the project owned by plaintiff contained the following provision regarding the installation of appliances:

On several occasions prior to August 23, 1983 notices had been sent to defendant concerning the use of a washing machine in her apartment and indicating that this constituted a breach of the lease. Defendant had not been granted permission to install the washing machine as it was plaintiff's policy never to authorize the use of such an appliance. A laundromat on the first floor of the building was provided by plaintiff for the tenants' use. Each of the notices was accompanied by a letter from the housing manager advising defendant that an inspection of the apartment would take place on a specified future date. According to the manager, the washing machine was not seen when the inspections were made as, being a portable machine, it was removed just prior to the inspections and returned at a later date. However, in August 1983, after having received a damage report from the tenant occupying the apartment beneath defendant's and after seeing water coming into the lower apartment, the manager entered defendant's apartment and found the washing machine there. Accordingly, the notice of August 23rd was sent terminating the tenancy and giving defendant notice to quit effective October 1, 1983. Defendant failed to vacate the premises and the present action was instituted.

The trial court found that defendant had installed a washing machine in her apartment. However, the court interpreted the cited lease provision as permitting the tenant to understand that authorization for the use of a washing machine would not be unreasonably withheld by the landlord and that the blanket refusal to grant such permission was unreasonable and constituted a breach of the lease. The judge also found plaintiff had waived its rights under the lease by not acting upon one or more of the notices which had previously been served upon defendant. Although the court recognized that the unrestricted installation and use of washing machines in the apartments could, because of the limitations of the building's water drainage system, present a potentially damaging situation for the project, he observed the landlord could obtain appropriate relief by suing the tenant responsible for any resulting damage.

The complaint in this matter sought possession of the premises pursuant to N.J.S.A. 2A:18-61.1,*fn1 which provides in pertinent part:

No lessee or tenant . . . may be removed by the county district court or the Superior Court from any house, building, . . . or tenement leased for residential purposes, . . . except upon establishment of one of the following grounds as good cause:

d. The person has continued, after written notice to cease, to substantially violate or breach any of the landlord's rules and regulations governing said premises, provided such rules and regulations are reasonable and have been accepted in writing by the tenant or made a part of the lease at the beginning of the lease term;

e. The person has continued, after written notice to cease, to substantially violate or breach any of the covenants or agreements contained in the lease for the premises where a right of reentry is reserved to the landlord in the lease for a violation of such covenant or agreement, provided that such covenant or agreement is reasonable and was contained in the lease at the beginning of the lease term; . . .

In dismissing the complaint, the trial judge concluded that the lease provision regarding the use ...


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