On appeal from the Superior Court, Law Division, Special Civil Part, Camden County.
Deighan and R. S. Cohen. The opinion of the court was delivered by R. S. Cohen, J.A.D.
Defendant has rented an apartment in plaintiff's complex for some 16 years. In October 1988 plaintiff presented defendant a new lease for her signature. She did not sign it. Because defendant failed to sign the new lease, plaintiff filed this summary dispossess action. From the resulting judgment for possession and the denial of a motion to reconsider, defendant appeals; we reverse.
Almost all of the summary dispossess trial testimony addressed the disputed question whether defendant had received the new lease and plaintiff's written communications about it. The Special Civil Part judge found, contrary to defendant's testimony, that she had received the lease and the communications. Because that finding was based on substantial credible evidence we accept it.
The new lease was presented to plaintiff on October 20, 1988, with a demand that it be signed in five days if defendant wished to remain a tenant. The new lease is not reproduced in the record, but we are told that it deletes a 1984 lease addendum which granted plaintiff exclusive use of two on-site parking spaces, apparently leaving her to compete with other tenants for available spaces. Every other lease term, with the possible exception of permissible rent increases, remained the same. Defendant did not respond to plaintiff's submission of a new lease or reminders about it.
In its complaint, plaintiff alleged that defendant was a residential tenant, that on October 20 she was given a new lease and five days to sign it, and she was told that if she failed to sign it, she had to vacate by November 30. The complaint alleged that on December 5 the unresponsive defendant was told she had to vacate by January 4, and that she failed to do
so. The complaint and plaintiff's trial evidence did not mention the change in a lease provision, or allege its reasonability.
The lease reproduced in defendant's appendix has a one-year term from July 1, 1983, to June 30, 1984. It was periodically renewed, it appears, in such a way as to give defendant a month-to-month tenancy on the same terms, except for rent increases. The lease has the following provision:
The Landlord may offer the Tenant a new lease to take effect at the end of this Lease. The new lease may include reasonable changes. The tenant will be notified of any proposed new lease at least 60 days before the end of the present Lease. If no changes are made, the Tenant may continue to rent the Apartment on a month to month basis (with the rest of the lease remaining the same). In either case the Tenant must notify the Landlord of the Tenant's decision to stay or leave at least 60 days before the end of the term. Otherwise, the Tenant will be responsible under the terms of the new lease.
The quoted provision has two consequential features. The first is that plaintiff has to give defendant 60 days' notice of any reasonable lease changes. Because termination was to be November 30, the date chosen by plaintiff, the October 20 notice did not comply. The second feature is that if defendant fails to notify plaintiff whether she will stay or leave, "the Tenant will be responsible under the terms of the new lease." The effect therefore of a tenant's failure to accept or refuse the new lease is not to abort it, but rather to put its terms into effect.*fn1
Thus, the old lease contemplates the situation that arose, and resolves it with an automatic renewal under the new terms. And, plaintiff does not allege that defendant has violated any of those terms. But, plaintiff argues that it is entitled to a signature on the new lease. The answer is that plaintiff itself decided the contrary when it offered defendant the old ...