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Vander Sterre Bros. Const. v. Keating

October 17, 1995

VANDER STERRE BROS. CONSTRUCTION, A NEW JERSEY PARTNERSHIP, PLAINTIFF-APPELLANT,
v.
MILDRED KEATING, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication October 17, 1995.

Before Judges King, Landau and Humphreys. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

The opinion of the court was delivered by KING, P.J.A.D.

I.

None of our cases directly address whether an owner of an apartment constructed as an intended condominium unit is required to give a new tenant the formal notice specified in N.J.S.A. 2A:18-61.9 of the Anti-Eviction Act (AEA).

Plaintiff-landlord here sought to evict defendant-tenant who rented an apartment in a condominium building. The landlord desired to convey the apartment unit as a condominium unit under a contract of sale to a third party. We conclude that the statutory notice required by N.J.S.A. 2A:18-61.9 should have been given at the inception of the tenancy, even though the apartment building was originally constructed for condominium use and was not a conversion from preexisting apartment use. Absent a proper statutory notice to the tenant, the three-year notice provision of N.J.A.C. 5:24-1.9(b) controls.

II.

Defendant Mildred Keating moved into an apartment on South Irving Street in Ridgewood in early September 1984. She began occupancy under an oral agreement to live in the apartment for one year. During 1985 she signed a one-year lease, for a term from September 1, 1985 to August 31, 1986. After this lease expired, the defendant signed annual leases with similar provisions, except for rent increases.

In 1984, when she moved into the apartment, defendant received no written notice about potential sale. She could not recall the landlord telling her anything about the unit's proposed status, although she remembered an exterior sign identifying the building as a "condominium."

The first lease which Keating signed in 1985, and we presume all later leases, included this provision, typed in the form lease as the final paragraph:

Tenants expressly recognize that Landlord shall have the right to show the premises to prospective purchasers thereof during the term of the Lease. Should the premises be sold by the Landlord, [sic] any sale shall expressly be subject to the tenancy; Tenants, however, expressly recognizing that at the expiration of the Lease term (i.e. August 31, 1986) any owner of the premises shall have the right to occupy same upon giving the Tenants a 30-day notice of the termination of the tenancy.

On July 6, 1994 defendant received the landlord's letter notifying her that it, as owner and landlord, "has entered into a contract for sale of the property which requires that the property be vacant as of the date of closing which is August 31, 1994." The landlord's letter also advised the defendant that refusal to vacate would result in a "dispossess action."

On September 13, 1994 the landlord filed a summary dispossess action. After a trial in November 1994 the Judge ruled that the landlord was obligated to provide notice under N.J.S.A. 2A:18-61.9 and did not do so. The Judge dismissed the complaint for eviction and the landlord appeals.

We conclude that the Judge did not err in finding that N.J.S.A. 2A:18-61.9 applied. The statutory notice of potential conversion should have been given to defendant when her ...


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