This matter comes before the court via a forfeiture hearing pursuant to N.J.S.A. 2C:64-1 et seq. wherein the State seeks an order for forfeiture against defendants' interests in real property located at 120 Livingston Street, Westfield, New Jersey. There appears to be no reported case wherein the State has sought to apply the statute against real property.
The applicable statute, N.J.S.A. 2C:64-1, reads in pertinent part:
(a) Any interest in the following shall be subject to forfeiture and no property right shall exist in them: . . .
(2) All property which has been . . . utilized in furtherance of an unlawful activity, including, but not limited to, conveyances intended to facilitate the perpetration of illegal acts, or buildings or premises maintained for the purpose of committing offenses against the State.
N.J.S.A. 2C:64-3 details the procedures to be followed to implement forfeiture. Subsection (f) of that statute raises the rebuttable presumption that the property was utilized in furtherance of an unlawful activity through evidence of a conviction of a criminal offense in which the seized property was used for said activity. The question that faces this court, therefore, is what interest in said property, if any, is subject to forfeiture and to what extent. A review of the pertinent history concerning the property's ownership is necessary in order to consider these questions.
Joseph Lundy and Mary Price were married in March 1961 and purchased 120 Livingston Street (hereinafter "the property") as tenants by the entirety in March 1968. One child, Joseph, Jr., was born of the marriage. In 1971, Mary Lundy separated from Joseph, Sr., left the property and took up residence elsewhere in Union County. Joseph and Mary remained married but continued to live separate and apart at all
relevant times thereafter. Joseph, Jr. remained with his father at the property until he became emancipated in 1984.
Although separated from her husband, Mary would visit the property over the years to look in on her son, husband and the property on an average of once a month. Because she did not live there and had not maintained intimate relations with her husband, Mary testified that her visits were limited to first floor common areas, e.g., the living room, kitchen and bathroom.
Joseph was arrested in 1983 on an unrelated possession of CDS charge but he never told Mary. Throughout the years, Joseph maintained the property and paid the mortgage, taxes, utilities and other expenses without contribution from Mary, despite the fact from 1986 forward he was unemployed. Mary was aware of his unemployment but never concerned herself with how Joseph met those expenses.
On January 30, 1988, Joseph Lundy was arrested by the Westfield Police Department on charges which alleged that he distributed drugs from the property. This court finds, as a result of this hearing, previous plea negotiations and the materials submitted in support of a search warrant for said property, that Joseph Lundy used the property in furtherance of his drug distribution scheme, specifically by holding, packaging and selling CDS from the premises. On April 28, 1988 the State initiated this action in forfeiture against certain items found in the house and the real property in question. Only the latter is in issue now.
Testimony at the hearing divulged that Joseph and Mary agreed at the time of their separation that he was to remain on the premises and utilize it for their son's benefit while he was a minor. Thereafter, the property was to be sold at an unspecified point in time, but such a sale was never effected. From November 1986 on, Joseph claims to have had difficulty in making his mortgage ...