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Sacks Realty Co. v. Batch

Decided: May 24, 1989.

SACKS REALTY CO., PLAINTIFF,
v.
LOREEN BATCH, ANN THEODORE, GERARD MONTERA, JOSEPHINE LOMBARDI, TILLIE HARRISON, JOHN GOGARTY, AND CHRISTOS CHARLAMBOUS, DEFENDANTS



Harris, J.s.c.

Harris

I.

Introduction.

This landlord-tenant action explores the outer limits of the power and the discipline of the court in connection with a summary dispossess action grounded upon the permanent retirement of real property from residential use. This case raises sensitive issues concerning the separation of powers between the Judiciary and the Legislature, and demands a careful analysis of the legislative intent of the 1986 amendments to the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq. For the reasons which follow, the court determines that the failure of plaintiff to have scrupulously followed all notification procedures mandated by the 1986 amendments to the Anti-Eviction Act, requires that its complaints*fn1 against the seven remaining tenants, in this mostly abandoned building, be dismissed.

II.

Procedural Posture of the Action.*fn2

On June 24, 1987, plaintiff, as managing agent*fn3 of the real property which is the subject matter of this litigation, mailed

(by certified mail, return receipt requested) to each defendant a notice terminating their tenancy and demanding possession of the premises on December 31, 1988 because plaintiff intended to permanently retire the building in which the tenants were living from residential use. Each tenant received a notice on or before July 3, 1987.

On January 10, 1989, plaintiff commenced this action by filing seven identical complaints alleging plaintiff's right to a judgment of possession by virtue of its compliance with N.J.S.A. 2A:18-61.1(h). An initial trial date of February 3, 1989 was scheduled in accordance with R. 6:5-2, but it was adjourned pending the result of defendants' motion pursuant to N.J.S.A. 2A:18-60 to transfer the actions. See R. 6:4-1(g). The transfer motion was denied, and the matter commenced trial on April 6, 1989.

Defendants made a number of motions to dismiss the action during plaintiff's case, and at its conclusion (in accordance with R. 4:37-2(b)), but all were denied to enable a full record to be developed.

III.

Findings of Fact.

Plaintiff is the managing agent for Tri-State Capital Corp. of real property located in the Borough of Fort Lee, commonly known as 2025 Lemoine Avenue. It is a 22-unit building presently adapted to residential use which the owner intends to retrofit and convert to office/commercial uses, in apparent conformity with local land use regulations. In so doing, the property will be completely retired from residential use.*fn4

Notices terminating defendants' tenancies were mailed and received by defendants at least 18 months prior to the institution of the instant action. However, plaintiff neglected to comply with N.J.S.A. 2A:18-61.1c (requiring plaintiff, within five days of mailing the tenants' notice of termination, to advise the Department of Community Affairs of the permanent retirement of the building from residential use), and N.J.S.A. 2A:18-61.1d (requiring plaintiff, within five days of mailing the tenants' notice of termination, to advise the Fort Lee Rent Leveling Board of the permanent retirement of the building from residential use, and listing the existing tenancies and their rents).

On January 10, 1989, the day these summary dispossess actions were initiated, plaintiff finally sent to the Department of Community Affairs and the Fort Lee Rent Leveling Board notice that should have been provided over 18 months earlier.

As of the trial date, plaintiff was in possession of a partial demolition permit from the Borough of Fort Lee to enable it to begin the process of rehabilitation leading ultimately to its permanent retirement from the residential rental market. Plaintiff claims that it need not obtain site plan approval from Fort Lee*fn5 since its intended office/commercial use is a primary permitted use in the zone in which it is located. Cf. Dresner v. Carrara, 69 N.J. 237 (1976). Plaintiff further contends that it is precluded from proceeding with further development permits until an architectural and engineering study is completed. These studies require removal of all tenants in order to be accomplished. Plaintiff asserts that it was not involved in the construction of the building and there are no blueprints, schematics, or other plans available to it. Thus, it claims that an

on-site investigation -- in the absence of these tenants -- must be conducted before full, final plans may be prepared and submitted for a building permit from the local building department. Plaintiff claims that these unusual circumstances entitle it to proceed in this action notwithstanding the otherwise conceded noncompliance with N.J.S.A. 2A:18-61.1b.

Defendants produced each tenant as a witness for the purpose of indicating that neither the landlord nor any public agency had made any attempt whatsoever to offer or provide relocation assistance, comparable housing, or moving expenses. These witnesses also testified that they had each made complaints to plaintiff about the conditions of their apartments (largely limited to water and ceiling damage) and to the local building department. Defendants have relied upon these ...


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