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Sparkle Mair v. Jerry Wiley

March 16, 2012

SPARKLE MAIR, PLAINTIFF-RESPONDENT,
v.
JERRY WILEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. DC-026200-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 31, 2012

Before Judges Carchman and Baxter.

In this landlord-tenant matter, defendant-landlord, Jerry Wiley, appeals from a December 22, 2010 Special Civil Part judgment requiring him to pay the sum of $4500 to plaintiff-tenant, Sparkle Mair. Plaintiff initiated the proceeding pursuant to N.J.S.A. 2A:18-61.1h, which imposes a financial penalty on a landlord who creates an illegal occupancy. In such cases, the landlord is required to reimburse the displaced tenant in an amount equal to six times the monthly rent. N.J.S.A. 2A:18-61.1h(c). We reject defendant's contention that because the tenant was not evicted in an eviction proceeding by court order, but instead moved out after the Jersey City code enforcement officer directed her to do so, the judge was not entitled to impose the statutory penalty. We likewise reject defendant's assertion that by agreeing to vacate the premises and accept a refund of the two months rent that she had paid, plaintiff relinquished her right to seek and obtain the statutory penalty authorized by N.J.S.A. 2A:18-61.1h(c). We affirm, although we modify the judgment to reflect the $1500 refund defendant previously issued.

I.

On July 1, 2010, the parties signed a document entitled "Commercial Lease" for "the premises . . . described as 310 Pacific Avenue" in Jersey City on a month-to-month basis at a rent of $750 per month. Even though the building had three floors, the lease did not specify the portion of the building to which the lease applied. In paragraph 2, the lease provided:

Lessee shall use and occupy the premises for OFFICE. The premises shall be used for no other purpose. [Landlord] represents that the premises may lawfully be used for such purpose.

According to plaintiff, she told defendant at the time she signed the lease that she intended to live there with her five-year old son. When she asked defendant why the lease was entitled "Commercial Lease," he responded that "she should not worry about it" and "that was the only lease that he was able to pull up." Because it was the first time plaintiff had ever rented an apartment, she "trusted him" and "gave him the benefit of the doubt."

Plaintiff moved into the premises, which consisted of two small bedrooms, one for her and one for her son, a kitchen and a bathroom. The unit was located in the rear of the first floor of the building, behind a commercial space.

Plaintiff paid the July and August 2010 rent, which totaled $1500. In the middle of August, defendant presented plaintiff with the utility bill, which she disputed. Plaintiff then spoke to the tenants who lived on the second and third floors of the building, who told her that she should "confirm and make sure the apartment is legit" [sic] before she agreed to split the utility bill with defendant. After her conversation with the other tenants, plaintiff "c[a]me to the realization that it wasn't an apartment, it was illegal. He had halved it off from his commercial property."

At that point, plaintiff "took it upon [her]self" to call the Acting Zoning Officer, Nick Taylor, who advised her on August 20, 2010 "that the apartment was illegal." According to plaintiff, Taylor notified her that "due to [the] violation[,] [she] would have to move and relocate [her]self." Taylor told plaintiff that it was "illegal for [her] to be there as a resident living with a five-year old son and [she] had to vacate the premises[.]"

At some time that same day, August 20, 2010, Taylor conducted a site inspection and recommended to the parties that plaintiff move out immediately, and that defendant refund the $1500 of rent that plaintiff had already paid. Plaintiff agreed to those terms and moved out at 6:00 p.m. the same day. She and defendant executed a document, which stated in its entirety:

Re: Refund of all rents paid Effective today, August 20, 2010, $1500 will be refunded to the above mentioned tenant. Said dollar amount represents a full refund of two months of rent paid by tenant. Tenant agrees to vacate the premise[s] today.

Both parties signed the document.

Three days later, on August 23, 2010, Taylor issued defendant a notice of ...


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