July 26, 2007
PEDRO QUEZADA, PLAINTIFF-RESPONDENT,
MARIA HERNANDEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. LT-6850-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 10, 2007
Before Judges Fuentes and Graves.
Defendant Maria Hernandez appeals from the judgment of possession entered by the Special Civil Part terminating her tenancy in the third floor apartment of a three-family building located in the City of Passaic. Plaintiff's complaint alleged two separate grounds for terminating defendant's tenancy:
plaintiff intended to personally occupy defendant's apartment, N.J.S.A. 2A:18-61.1(l)(3); and non-payment of rent, N.J.S.A. 2A:18-61.1(a).
At trial, defendant asserted three separate defenses to the action: (1) plaintiff had not produced proof of compliance with the registration requirements of N.J.S.A. 46:8-29;*fn1 (2) the action constituted a retaliatory eviction under N.J.S.A. 2A:42- 10.10; and (3) the non-payment of rent count in the complaint vitiated the termination notice required to proceed under N.J.S.A. 2A:18-61.1(l)(3).
After reviewing the record, and in light of prevailing legal standards, we reverse. We are satisfied that the trial court erred in its analysis of defendant's retaliation defense. Thus, because there are sufficient grounds to reverse on retaliation, we need not, and specifically do not reach the other arguments advanced by defendant.
N.J.S.A. 2A:42-10.10 provides, in pertinent part, as follows:
No landlord of premises or units to which this act is applicable shall serve a notice to quit upon any tenant or institute any action against a tenant to recover possession of premises, whether by summary dispossess proceedings, civil action for the possession of land, or otherwise:
a. As a reprisal for the tenant's efforts to secure or enforce any rights under the lease or contract, or under the laws of the State of New Jersey or its governmental subdivisions, or of the United States; or
b. As a reprisal for the tenant's good faith complaint to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code or ordinance, or State law or regulation which has as its objective the regulation of premises used for dwelling purposes;
Furthermore, N.J.S.A. 2A:42-10.12a, creates a rebuttable presumption of retaliation if a landlord institutes an action against a tenant, or serves that tenant with a notice to quit, after the tenant "attempts to secure or enforce any rights . . . under the laws of the State of New Jersey, or its governmental subdivisions."
Here, defendant argues that plaintiff's complaint was in retaliation for her refusal to accept an increase in her monthly rent, which violated the maximum rent permitted under the municipal rent control ordinance. Defendant offers no direct evidence in support of her claim. She argues that the trial court should have inferred plaintiff's retaliatory intent based on the fact that plaintiff's complaint quickly followed defendant's refusal of the improper increase. According to defendant, the trial court's failure to inferentially find retaliation from this circumstantial evidence amounts to reversible error.
On this issue, the trial court made the following findings:
It did come out through testimony that the plaintiff is presently renting another similar apartment, I don't know the exact descriptions, except both are termed as two bedroom apartments, at a cost of $550 per month.
The testimony indicated that the rent received from this particular apartment was only $430. It is understood that this is a property that falls under the rent-leveling ordinance for the city of Passaic.
There was also testimony indicating that the mortgage on the new property was $2300 and change per month. And that the combined rents at the three units presently -- leased out fall short of that. Some $1700 per month. So a shortfall was occurring.
There was also testimony -- disputed testimony -- that the landlord had asked this particular tenant for an increase in rent that would have been above the rent-leveling ordinance. However, by adding in the numbers that were thrown out there, I think it was an increase from $430 to $650, still does not produce income sufficient to -- for the carrying costs of the building.
The reasons for the landlord wishing to occupy could very well be economic reasons, that it was not practical for him to continue to pay rent living somewhere else when he could dwell in a building that he owned.
That all being said, I do find that the plaintiff has proved his case. He'll occupy the apartment that he purchased, and said he purchased (phonetic) -- and has satisfied the notice requirements therein.
The court's findings and analysis fails to address the presumption of retaliation created by N.J.S.A. 2A:42-10.12a. In Les Gertrude Associates v. Walko, 262 N.J. Super. 544, 550 (App. Div. 1993), we held that
[t]he landlord can overcome this presumption only by showing that the eviction proceeding was commenced independently of any consideration of protected activities the tenant may have engaged in. Even where a landlord "considers as one of the factors favoring that decision the activities of the tenant described in N.J.S.A. 2A:42-10.10, then the notice to quit is a 'reprisal' within the meaning of the act, although other factors may also be present or even dominant."
[(Internal citation omitted).]
Here, the record shows that the eviction preceding was related to the landlord's failed attempt to raise defendant's rent. Thus, although plaintiff may have had other motives for initiating this eviction action, plaintiff did not rebut the presumption created by N.J.S.A. 2A:42-10.12a.