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Surace v. Pappachristou

Decided: July 3, 1989.

VINCENT SURACE AND JOAN SURACE, PLAINTIFFS,
v.
CLARA PAPPACHRISTOU, DEFENDANT



Harris, J.s.c.

Harris

Introduction.

This summary dispossess action pits a 13-year tenant in an owner-occupied, multi-family dwelling against her landlord who seeks a judgment of possession to enable the landlord to personally occupy her apartment.

Plaintiff claims that defendant is not protected by the provisions of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq. Rather, plaintiff claims entitlement to a judgment of possession under the all-encompassing summary dispossess statute, N.J.S.A. 2A:18-53(a). In reliance upon this statutory provision,

plaintiff did not comply with the notice provisions of N.J.S.A. 2A:18-61.2. He concedes that if the Anti-Eviction Act applies to this tenancy, the court is without jurisdiction, and the complaint must be dismissed.

Findings of Fact.

Plaintiff owns property at 2191 McKay Avenue, Fort Lee, New Jersey. It is located in a residential district which permits single- and two-family dwellings. Inexplicably, when plaintiff purchased the property in 1985 it was occupied by five tenants, each in separate quarters. Two tenants occupied separate apartments in the basement and three tenants, including defendant, occupied separate apartments upstairs.

Plaintiff purchased the property from an investor who had not resided in the premises. After acquiring the property, plaintiff was able to oust*fn1 three of the tenants; plaintiff's family is now occupying the entire basement and one of the upstairs apartments. Physical modifications to the basement have been made so that it no longer is capable of being used, without further modification, as multiple-dwelling units.

Defendant appears to have been a model tenant. She has paid her rent in a timely fashion. She is not a disorderly tenant, and she has not physically damaged the premises. Plaintiff has virtually conceded that there is an absence of "cause" under the Anti-Eviction Act to remove her, except, perhaps, under N.J.S.A. 2A:18-61.1(l)(3). As such, plaintiff seeks her eviction in this action on the strength of his argument that the Anti-Eviction Act is inapplicable, and he may remove her for any reason whatsoever.

Conclusions of Law.

The issue here is the meaning of "owner-occupied premises with not more than two rental units*fn2" N.J.S.A. 2A:18-61.1. If the instant property may be so characterized, plaintiff will obtain its goal of a judgment of possession. If not, defendant shall be victorious and the complaint will be dismissed.

In Bradley v. Rapp, 132 N.J. Super. 429 (App.Div.1975), certif. den. 68 N.J. 149 (1975), the Appellate Division -- in one of the earliest appellate decisions construing the Anti-Eviction Act -- determined that one who purchases a two-family property for the express purpose of immediately residing therein renders the premises "owner-occupied" within the meaning and intendment of that phrase as used in N.J.S.A. 2A:18-61.1.

The language of Bradley, supra, strongly suggests that the Appellate Division was struggling with the anomaly (since corrected by N.J.S.A. 2A:18-61.1(l)(3)) that seemed to prevent an owner of a small building from recovering possession of property. However, in so struggling, the Appellate Division enunciated some appropriate warnings ...


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