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Ashley Court Enterprises v. Whittaker

Decided: July 10, 1991.

ASHLEY COURT ENTERPRISES, PLAINTIFF-RESPONDENT,
v.
GAIL WHITTAKER, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County.

Judges Pressler, Baime and A. M. Stein. The opinion of the Court was delivered by A.m. Stein, J.A.D.

Stein

We reverse the judgment of possession in favor of plaintiff landlord, vacate the order of possession and remand to the Law Division, Special Civil Part, for entry of a judgment in favor of defendant.

There is a stormy relationship between this landlord and this tenant. Pursuant to the Section 8*fn1 lease signed by the parties, the Clementon Housing Authority was responsible for 100% of defendant's rent. In July 1990, the landlord refused to renew defendant's lease. Defendant claimed that good cause for nonrenewal did not exist. When the lease was not renewed, Clementon Housing Authority stopped paying defendant's rent. Plaintiff then brought a dispossess action based upon non-payment of rent. In January 1990 plaintiff obtained a judgment for possession. We stayed defendant's eviction and remanded the matter. That case was later consolidated with Whittaker v. Clementon Housing Authority, an action filed by defendant claiming wrongful termination of her benefits. Her

action has now been removed to the United States District Court.

In the meantime, plaintiff began other preliminary steps to secure defendant's removal from the apartment.

By letter dated March 28, 1990, plaintiff's attorney sent defendant a notice to cease advising defendant that "[if] you do not immediately cease (stop) doing the acts complained of, you may be EVICTED. This means you may be forced to leave." The letter listed the following "acts complained of":

You are presently in violation of your lease agreement due to the "Unauthorized Resident" presently living in your apartment and damage to Apartment A-2. Following is a list of Paragraphs of the lease which apply to these violations:

"Additional Agreements-This apartment lease is to be used as a residence only by those individuals listed on the application and no more. Tenants listed on lease were Gail Whittaker and son Kevin."

"5. No Assignment or Subletting-The Tenant may not do any of the following without the Landlord's written consent: (a) assign this lease, (b) sublet all or any part of the Apartment or (c) permit any other persons to use the Apartment except as a temporary guest of no more than SEVEN (7) DAYS."

"29. Lease Terminations: Landlord may terminate this Lease under any one or more of the following circumstances:

(A) Tenant fails to pay rent, due and owing on a lease.

(B) Tenant causes or allows destruction, damage or injury to the leased premises or in the common areas ...


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