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Fairken Associates v. Hutchin

Decided: December 18, 1987.

FAIRKEN ASSOCIATES, PLAINTIFF,
v.
CURTIS HUTCHIN, DEFENDANT



Fast, J.s.c.

Fast

This is an action for possession following the conversion of the subject unit to the condominium form of ownership. This case presents two issues, both of which appear not to have been reported in any New Jersey case.

The issues presented are:

1) Whether comparable housing must be offered when a tenant does not request it, and

2) Assuming that no such offer is required, did the landlord waive the benefit of having served the tenant with the three year notice by collecting rent for two years following the effective date of that three year notice, or is the landlord subject otherwise to the defenses of estoppel or laches?

The plaintiff here was the sponsor of the conversion, and the defendant had been a tenant at the time of the conversion, sometimes referred to as a "pre-conversion tenant."

N.J.S.A. 2A:18-61.11a provides:

a. Tenants receiving notice under section 3 g. of P.L.1974, c. 49 [ N.J.S.A. 2A:18-61.2] may request of the landlord within 18 full months after receipt of such notice, and the landlord shall offer to the tenant, . . . the rental of comparable housing or park site and a reasonable opportunity to examine and rent such comparable housing or park site. In any proceeding under subsection 2 k. of P.L.1974, c. 49 [ N.J.S.A. 2A:18-61.1] instituted following the expiration of notice required under section 3 g. of P.L.1974, c. 49, the owner shall prove that a tenant was offered such comparable housing or park site and provided such reasonable opportunity to examine and rent such housing or park site as requested pursuant to this section. . . . [Emphasis added]

I have found that the three year notice required by N.J.S.A. 2A:18-61.2 was given on November 1, 1982. It was effective three years later, to wit, November 1, 1985. That notice included the right of the tenant to request the comparable housing. I also have found in this case that the tenant did not request comparable housing, and that no comparable housing was offered to the tenant.

Additional material facts are that the tenant has received notices to increase his rent, and that the rent has been paid to date.

ISSUE I

MUST COMPARABLE HOUSING BE OFFERED WHEN THE TENANT DOES ...


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