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Estate of Carmella Rossi v. Federer

Decided: June 20, 1988.

ESTATE OF CARMELLA ROSSI, PLAINTIFF,
v.
CATHERINE A. FEDERER, DEFENDANT



Brown, J.s.c.

Brown

[227 NJSuper Page 519] This matter comes on before the court as a result of a summary dispossess action filed on behalf of plaintiff, the

Estate of Carmella Rossi, by co-executors, Charles Rossi and Concetta Rodino, to evict defendant, Catherine A. Federer, under N.J.S.A. 2A:18-53(a), having served a notice to quit in accordance with N.J.S.A. 2A:18-56(b). Defendant raises the defense that she is entitled to the protection of N.J.S.A. 2A:18-61.1. A trial in the matter was conducted on June 15, 1988, and because of several novel issues raised by the undisputed facts the court reserved decision and does, by way of this opinion, decide the case.

Plaintiff offers testimony of Mrs. Rodino, who indicates that she is co-executrix with her brother, Charles Rossi, of the estate of her mother, Carmella Rossi, which owns certain property located on Belmont Avenue in Belleville, New Jersey. The property is a multi-story building consisting of a tavern, office and two apartments, one occupied by defendant and the other occupied by the co-executrix of plaintiff estate, that is Concetta Rodino, daughter of the decedent. It is the position of plaintiff that this is an owner-occupied two-family structure; that plaintiff served a notice to quit and demand for possession dated March 30, 1988 upon defendant demanding possession as of May 1, 1988; and that defendant was a holdover and, therefore, plaintiff is entitled to possession in accordance with N.J.S.A. 2A:18-53(a). The testimony indicated that a garage and another structure containing four residential rental units are also located on the tax lot, to the rear of the building occupied by defendant.

Defendant contends that she is entitled to the protection of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1, as the premises in question are not owner-occupied and contain more than two rental units. Putting aside for the moment the question as to whether this is owner-occupied or not, the court will first address the issue as to whether there are more than two rental units on the premises.

N.J.S.A. 2A:18-53 provides that except for tenants included in N.J.S.A. 2A:18-61.1,

any lessee or tenant at will or at sufference, . . . of any houses, buildings, lands, or tenements, . . . may be removed from such premises . . . in an action in the following cases: a. Where such person holds over . . . after the expiration of his term and after demand made and written notice given by the landlord or his agent, for delivery of possession thereof.

N.J.S.A. 2A:18-61.1 provides that no lessee or tenant may be removed from

"any house, building, . . . or tenement leased for residential purposes, other than owner-occupied premises with not more than two rental units . . . except upon establishment of one of the following grounds as good cause. . . ."

In Reggiori v. Petrone, 184 N.J. Super. 240 (Cty.D.Ct.1981), Judge Sciuto of the Bergen County District Court ruled that the exception in N.J.S.A. 2A:18-61.1 for owner-occupied premises was not applicable to landlords whose tenants lived in a cottage situated on the same plot of land as the home in which the landlord resided. The district court ruled that the word "premises" as used in the statute should be construed narrowly to mean "building" and that the owner-occupied premises exception "applies only to landlords and tenants who reside under the same roof, and does not include separate dwellings on the same tract of land." Id. at 243.

In Fresco v. Policastro, 186 N.J. Super. 204 (Cty.D.Ct.1982) my colleague, Judge Higgins-Cass, sitting on the then Essex County District Court, declined to follow the reasoning in Reggiori and ruled that the word "premises" should be given the broad meaning of "land and appurtenances." The court in Fresco found the broad definition of premises, as reflected in case law, to be:

the property conveyed in a deed; hence, in general, a piece of land or real estate; sometimes . . . a building or building on land. . . . The word 'premises' is of a broader comprehension then the word 'building.' It may mean land ...


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