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Chambers v. Nunez

Decided: November 19, 1986.

GEORGE AND LUCY CHAMBERS, PLAINTIFFS,
v.
JOSE AND MARIA NUNEZ, DEFENDANTS



Fast, J.s.c.

Fast

This is an action for the summary dispossession of a tenant from an apartment at 215 Forest Street, Belleville, New Jersey. The building is currently occupied by the plaintiffs-landlords on the first floor, with the defendants-tenants on the third floor.

The landlords served the defendants with a one month notice to quit and demand for possession. The notice said, along with the usual provisions, that it was being served pursuant to N.J.S.A. 2A:18-51, 2A:18-56, and 2A:18-61.1. The tenants did not move out, and the landlords brought this summary action for possession.

The dispute in this action centers on the use of the second floor. For some period prior to June 1986, there were two tenants on the second floor. Although the record is not clear how long the second floor had been occupied by two tenants, it appears that two tenants occupied that floor in separate units, each having an independent access, and each paying rent independently of the other, from 1978 until June 1986. It was stipulated that there were two tenants on the second floor as of June 1986, and that there was only one tenant on that floor as of the date of service of the subject notice on the defendant, the third floor tenant. Each of the second floor units had its own access, kitchen, bath facilities, etc, making two separate and distinct rental units. After the first of these last two second floor tenants moved out (apparently voluntarily), the landlords converted the building by restoring the second floor to one unit

by removing a sheetrock partition and replacing it with a door. It appears that the sheetrock had been put in where there was formerly a doorway between the two second floor apartments, and that was the sheetrock that had been removed and replaced with a door, bringing it back to its original condition. The remaining second floor tenant testified that she planned to marry and to use the entire expanded second floor as a single apartment for her own use.

The plaintiffs-landlords argue that the facts extant at the time of the service of the notice are controlling. The defendants-tenants argue that the conversion of the two units into one was a violation of the defendants' rights to live in a four unit building to which accrues the benefits of the "eviction for cause" statutes. The defendants-tenants have lived in their apartment since 1972, that is, for 14 years.

A letter from the Belleville Construction Code Official's office was put into evidence. It stated that the tax assessor's office "has this house listed as a three family home." There was no testimony to state how the assessor's office came to that listing, although a "Registration Statement" filed by the Plaintiffs in November 1984 and November 1985 were marked into evidence. The 1984 statement showed that the first floor was owner occupied, the second floor had a rental income of $275.00, and the third floor had a rental income of $255.00. The 1985 statement included the following:

"Number of Apartments in Building 3 X $1.00 per unit = $3.00."

That was for the calculation of the registration fee, and appears to be in contrast to the testimony which showed four units for those periods. The 1985 form again represented that the first floor was owner occupied, the second floor had a rental income of $290.00, and the third floor had a rental income of $268.00. Those representations also were contradicted by the testimony which clearly showed a greater rental income for those years for the second floor. At best, those forms are self serving, and

I have not given them any weight to prove that there were only three units in the building. There was no testimony as to any limitation on the number of families according to the municipal zoning ordinance.

N.J.S.A. 2A:18-61.1 became effective on June 25, 1974 and has been effective since then (with amendments ...


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