Aaroe, J.s.c. (retired and temporarily assigned on recall).
Defendant co-signed deeds for two dwelling units in the Town of Phillipsburg. They were delivered and recorded. Thereupon,
the Town charged him with their sale without first obtaining occupancy permits. The municipal court found him guilty and assessed a fine of $500 and costs on each charge.
On appeal, the defendant contends the municipality has no authority to require a certificate of occupancy by a vendor before such sale.
Research discloses no case on the subject in this State. This Court agrees with the defendant and reverses.
N.J.S.A. 40:48-2.12a provides that:
"The governing body of any municipality may make, amend, repeal and enforce ordinances to regulate buildings and structures and their use and occupation to prevent and abate conditions therein harmful to the health and safety of the occupants of the said buildings and structures and the general public in the municipality."
N.J.S.A. 40:48-2.12m provides:
"The governing body of a municipality may adopt ordinances regulating maintenance and condition of any unit of dwelling space, upon the termination of occupancy, in any residential rental property for the purpose of the safety, healthfulness, and upkeep of the structure and the adherence to such other standards of maintenance and condition as are required in the interest of public safety, health and welfare. Such ordinances shall require the owner of any residential rental property, prior to rental or lease involving a new occupancy of any unit of dwelling space in such property, to obtain a certificate of inspection or occupancy for the unit of dwelling space. Such certificate of inspection or occupancy shall be issued by the municipality upon the inspection of the unit of dwelling space by a municipal inspector and his findings that such unit meets the standards provided by law. The municipality may charge a fee to fund the costs of the inspections and the issuance of the certificates. For purposes of this act "owner" means the person who owns, purports to own, or exercises control of any residential rental property."
The municipal ordinance provided in pertinent part:
"WHEREAS, the residents of the Town of Phillipsburg feel that it would be in the best interests of the citizens of the Town to provide for inspection upon sale of, rental, ...