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809-811 Washington Street Associates v. Grego

Decided: January 9, 1992.

809-811 WASHINGTON STREET ASSOCIATES, PLAINTIFF-APPELLANT,
v.
DAVID GREGO, BRANKO & HELEN ILIJIC, MARIA COFINO AND JOSO DADIC, DEFENDANTS-RESPONDENTS



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

Pressler, Shebell and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

SKILLMAN, J.A.D.

This appeal requires us to interpret various provisions of the Anti-Eviction Act and the regulations adopted thereunder which govern condominium conversions.

Plaintiff was the owner of a twenty-two unit apartment building located in Hoboken and defendants were tenants in four of the units.*fn1 On December 31, 1986, plaintiff obtained an order of registration from the Department of Community Affairs (DCA) accepting its public offering statement (POS) in accordance with the provisions of the Planned Real Estate Development Full Disclosure Act, N.J.S.A. 45:22A-21 to -42 (PREDFDA), and on February 11, 1987, DCA registered plaintiff's first amendment to its POS. On February 11, 1987, plaintiff delivered a copy of its POS and its full plan of condominium conversion (full plan of conversion) prepared pursuant to the Anti-Eviction Act, N.J.S.A. 2A:18-61.8, together with its notice of intention to convert to condominium ownership (notice of intention), to the clerk of the City of Hoboken.

Later in February 1987, plaintiff served the notice of intention upon its tenants including the defendants. The POS, which also constituted plaintiff's full plan of conversion, the first amendment thereto, and DCA's regulations governing condominium conversions, N.J.A.C. 5:24-1.1 to -1.12, all accompanied the notice and were incorporated therein. The notice advised each of the tenants of their "exclusive right for a period of ninety (90) days after your receipt of this Notice and attachments, to purchase your apartment unit." The notice stated that "[t]he purchase price of your Apartment Unit is included in the Exhibit entitled 'Purchase Price and Estimated Common Charges' which is attached to the First Amendment to the Plan." The notice also advised the tenants that "an owner of an apartment building who is converting from the rental market to the condominium form of ownership has the right, upon giving of three (3) years prior notice, to remove existing tenants from the converted apartment building." The notice further advised the tenants that if they were evicted pursuant to a condominium conversion, they would have certain additional

rights, including assistance in securing comparable housing and a moving expense allowance from the landlord. Defendants did not exercise their right to purchase their units within the ninety day period allowed by the notice.

In April of 1987, plaintiff served each of the defendants with a notice to quit and for delivery of possession (notice of eviction) which stated that their leases would be terminated as of April 30, 1990, because plaintiff was converting the apartment to condominium ownership in accordance with the February 11, 1987 notice of intention.

Defendants did not surrender possession of the premises by April 30, 1990, as demanded in the notice of eviction, and on May 1, 1990, plaintiff filed summary dispossess actions against them. The complaints were subsequently consolidated for trial.

The trial court issued a written decision on October 22, 1990, revised by a memorandum opinion issued on February 6, 1991, which concluded that plaintiff had failed to comply with various provisions of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to 2A:18-61.12, and its implementing regulations, and that the court therefore lacked jurisdiction to proceed with its complaints. Accordingly, the court entered an order dismissing the complaints. More specifically, the court concluded that the notice of eviction was received by defendant Grego precisely sixty days after he received the notice of intention and therefore was served prematurely, and that plaintiff's complaints had been filed prior to the termination of defendants' tenancies and therefore also were premature. The court also concluded that plaintiff's full plan of conversion, which is required to satisfy the provisions of the Anti-Eviction Act, could not be presented in the same document as its POS, which is required to satisfy the requirements of the PREDFDA. In addition, the court identified two deficiencies in plaintiff's February 11, 1987 notice of intention and numerous deficiencies in its full plan of conversion.

We conclude that plaintiff complied in all respects with the requirements of the Anti-Eviction Act and its implementing regulations. Therefore, we reverse.

I

Before addressing the Special Civil Part's reasons for concluding that plaintiff failed to comply with certain provisions of the Anti-Eviction Act and its implementing regulations and that the court therefore lacked jurisdiction, we first consider two preliminary procedural arguments presented by plaintiff.

A

Plaintiff argues that the Special Civil Part lacked jurisdiction to review the form of its full plan of conversion, because DCA possesses exclusive jurisdiction to review the form of condominium conversion plans and DCA approved plaintiff's plan before it was sent to defendants.

The Legislature has assigned the responsibility to DCA to adopt regulations implementing both PREDFDA and the Anti-Eviction Act. N.J.S.A. 45:22A-35; N.J.S.A. 2A:18-61.12. DCA has discharged these responsibilities by the adoption under the authority of the PREDFDA of N.J.A.C. 5:26-1 to -11.11 and the adoption under the authority of the Anti-Eviction Act of N.J.A.C. 5:24-1.1 to -1.12. The subjects addressed by DCA's regulations include the contents of both public offering statements required under the PREDFDA, N.J.A.C. 5:26-4.2, and full plans of conversion required under the Anti-Eviction Act, N.J.A.C. 5:24-1.5. DCA has the additional responsibility under PREDFDA to review and approve a developer's application for registration of a planned real estate development, which must include a POS. N.J.S.A. 45:22A-26 to -30. Thus, DCA must find that "[t]he public offering statement requirements of this act have been satisfied," N.J.S.A. 45:22A-29(e), before it may register the development, N.J.S.A. 45:22A-30(b). However, although the Anti-Eviction Act authorizes DCA to

adopt regulations prescribing the procedures landlords must follow in informing tenants of their "rights and responsibilities" under the Act and "the plans and proposals of landlords which may affect any tenant in order to maximize tenants' ability to exercise rights provided under this act," N.J.S.A. 2A:18-61.12, which includes the authority to prescribe the contents of full plans of conversion, the Anti-Eviction Act does not authorize DCA to review and pass upon the adequacy of a proposed notice of intention or a full plan of conversion.

Plaintiff elected to satisfy its obligations under the PREDFDA and Anti-Eviction Act by a single document, entitled "Public Offering Statement and Full Plan of Condominium Conversion." Plaintiff submitted this document to DCA as part of its application for registration. DCA approved plaintiff's application by a letter dated December 31, 1986, which stated in pertinent part:

Enclosed herewith please find Order of Registration in the above matter. It is issued pursuant to the authority of N.J.S.A. 45:22A-21 et seq.

Thus, it is clear on the face of DCA's letter to plaintiff that DCA's approval was limited to plaintiff's compliance with the provisions of the PREDFDA and that DCA did not express any opinion regarding plaintiff's compliance with the Anti-Eviction Act. Furthermore, N.J.A.C. 5:26-9.2 expressly states that compliance with the requirements of PREDFDA does not relieve a landlord of complying with the Anti-Eviction Act and the regulations promulgated thereunder. In addition, this court has recognized in a series of decisions that the Special Civil Part has the responsibility in a summary dispossess action arising out of a condominium conversion to determine the landlord's compliance with the applicable provisions of the Anti-Eviction Act. See, e.g., Sibig & Co. v. Santos, 244 N.J. Super. 366, 582 A.2d 840 (App.Div.1990); Riotto v. Van Houten, 235 N.J. Super. 177, 561 ...


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