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Center Avenue Realty Inc. v. Smith

Decided: May 4, 1993.

CENTER AVENUE REALTY, INC., PLAINTIFF-RESPONDENT,
v.
JOEL SMITH, AS EXECUTOR OF THE ESTATE OF CECIL SMITH AND JOEL SMITH, INDIVIDUALLY, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division-Special Civil Part, Bergen County.

Pressler, R.s. Cohen and Kestin. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

Commenced as a summary dispossess action in the Special Civil Part, this landlord-tenant dispute was transferred to the Law Division pursuant to R. 6:4-1(g) by sua sponte order of the court. Defendant Joel Smith, individually and as executor of the estate of his deceased mother Cecil Smith, appeals from a summary judgment entered by the Law Division granting plaintiff-landlord, Center Avenue Realty, Inc., a judgment of ejectment and an award of money damages. We reverse.

The relevant facts are not in substantial dispute. The premises consist of an apartment in plaintiff's residential building in Fort Lee. Defendant's family took occupancy of the apartment in 1967 under a two-year lease naming his parents, Leon Smith and Cecil Smith, as tenants, and both executed the lease. Occupancy was limited to the Smiths and those members of their immediate family named in their application form. Defendant, then an adult, had been so named and resided with his parents for several years. He left in 1970 when he married. Written annual renewal leases were thereafter executed, the last for the period ending March 31, 1981. At some point during this relationship, Leon Smith became the only named and executing tenant although his wife continued to live with him. As we understand the record, the continued tenancy after 1981 was a month-to-month holdover tenancy pursuant to law, N.J.S.A. 46:8-10, and was memorialized by way of an annual notice of extension sent by the landlord and signed by the tenant, Leon Smith, stating the new annual rent.

Leon Smith died in 1987. Cecil Smith remained as the tenant, and although she refused to sign the annual extension notices which now named her as the tenant, she nevertheless paid the rent due as required thereby. Mrs. Smith's health had by this time begun to fail and by 1989, she was suffering from a degenerative disease making it difficult for her to continue living alone. Consequently defendant, by then divorced, returned to Fort Lee to live with his mother. His subsequent request to plaintiff that

he be named as the tenant in the annual extension notices was rejected.

Mrs. Smith died testate in February 1991. Defendant was her executor and heir. He claimed the right to succeed to his mother's tenancy in either of those capacities or as tenant-occupant during his mother's lifetime. Plaintiff, however, took the position that Mrs. Smith's death had effectively terminated the original tenancy and that if defendant wished to remain, he would have to do so as a new tenant subject to Fort Lee's vacancy decontrol ordinance. Since defendant insisted on his right to remain under the original tenancy, plaintiff brought a summary dispossess action, which, as noted, was then transferred to the Law Division for Disposition as an ejectment action.*fn1

The trial court, Concurring with plaintiff's view of the matter, required defendant to vacate and entered judgment in plaintiff's favor in the amount of the difference between the rent Mrs. Smith had been obligated to pay and the decontrolled rental value of the apartment. Although defendant appealed from that judgment, he voluntarily vacated before the end of 1991 even though the judgment, entered in October 1991, was, by its own terms, stayed pending appeal.

Because defendant has vacated the premises, we are satisfied that his right to remain in the premises as a successor tenant under the terms of the original lease and subject to removal only under the Anti-Eviction Law, N.J.S.A. 2A:18-61.1, presents a moot question that we need not decide. In order to address the remaining damages issue, we must, however, determine the legitimacy of defendant's retention of the premises under his mother's tenancy at least for the period between her death in February 1991 and either the date of the trial court judgment in October 1991 or his actual removal in December 1991.

As noted, defendant argues that his right to remain for that period of time derives from his status as an occupant on the date of his mother's death or his status as a tenant in his own right based either on his original or resumed occupancy, or his status as executor, or his status as heir, or a combination of some or all of these factors.

We consider first the consequence of defendant's executor status, erroneously dismissed as inconsequential by the trial Judge. It is well settled that when a tenancy for a stated term of a year or more is converted to a holdover month-to-month tenancy by reason of expiration of a written lease without execution of a renewal lease, the holdover tenancy is ordinarily subject to all the terms and conditions of the written lease other than its durational term. See, e.g., S.D.G. v. Inventory Control Co., 178 N.J. Super. 411, 414, 429 A.2d 394 (App.Div.1981); Heyman v. Bishop, 15 N.J. Super. 266, 269, 83 A.2d 344 (App.Div.1951). Consequently, the continued tenancy of Mrs. Smith, ...


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