KENNETH HURDLE v. CITIMORTGAGE, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1251-07T21251-07T2

KENNETH HURDLE,

Plaintiff-Appellant,

v.

CITIMORTGAGE, INC.,

Defendant-Respondent.

_____________________________________

 

Argued February 25, 2009 - Decided

Before Judges Axelrad and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-2561-07.

Ronald Kurzeja argued the cause for appellant.

Mark S. Winter argued the cause for respondent (Stern, Lavinthal, Frankenberg & Norgaard, LLC, attorneys; Mr. Winter, on the brief).

PER CURIAM

Plaintiff Kenneth Hurdle appeals from a Law Division order dismissing his unlawful entry and detainer complaint and an order denying his motion for reconsideration. Following a hearing, the judge concluded N.J.S.A. 2A:39-1 was inapplicable to the facts presented at trial, which revealed defendant Citimortgage, Inc., a mortgagee in possession, secured the residential premises following a fire and later prevented reentry when the municipality issued a notice that residential use of the premises was not permitted.

We have considered the arguments raised in light of the record and applicable legal principles. We affirm.

The following facts were presented at the hearing. Defendant obtained a final judgment foreclosing on a multi-family dwelling located at 180-182 Park Place, Irvington (the premises). Title to the premises was transferred to defendant, following sheriff's sale in April 2002.

Plaintiff occupied the third floor of the premises (the apartment), pursuant to the terms of a two-year written lease agreement he had executed with the former owner on December 10, 2001. The third floor was the dwelling's attic, which had been transformed into three rooms. The lease provided plaintiff would pay $300 per month as rental for this space.

On November 18, 2006, the Irvington Fire Department responded to a fire at the premises. Specifically, the fire department extinguished a fire that started in the apartment. Plaintiff escaped the smoke and fire by climbing out a window and onto the roof where he was rescued by a fireman. According to the fire incident report, the exact cause of the fire was not yet determined, however, the firefighters stated an upholstered sofa or chair ignited.

James Suter, Irvington Township's Fire Official, testified that after the fire was extinguished, the department followed accepted safety procedures, which included shutting off the electrical breakers, gas meters, and the water, as needed. Suter explained the homeowner is then informed not to turn on the utilities until an inspection has been performed to determine the origin of the fire.

Suter also testified no one was to return to the apartment because

[i]t's an illegal apartment. You can't have [plaintiff]. There's no -- no smoke alarm system in -- by him being on the third floor makes it a three-family apartment. . . . Not legal, but in order to be a three-family house you have to have a hard wired smoke detector system, which it didn't have. All right. He has to have two means of egress from each apartment, which he didn't have and [which] put him in severe danger.

According to Suter, if plaintiff had reentered the apartment, an imminent hazard notice would have been issued and he would have been removed immediately.

Plaintiff left the apartment following the fire, but asserted he returned later that evening and entered through an unsecured rear door. Plaintiff suggested no one advised him against reentry and he insisted he intended to continue his residency. Upon further questioning, plaintiff admitted he never resumed living in the apartment due to the fire and smoke damage, but over the next two weeks, he went back at night to make repairs and remove his personal property. Beginning on the date of the fire, plaintiff secured another monthly apartment rental where he continued to reside at the time of the hearing.

On December 5, 2006, plaintiff delivered a handwritten letter to defendant's counsel, which he stated was in reference to "Habitability Repairs for 180 Park Place, Irvington, NJ." The correspondence characterized the apartment as "in need of significant repair, lately resulting from fire damage[;]" the "entire apartment [wa]s "severely damaged by smoke and fire[;]" and "there [we]re no door locks, or functioning doors, windows, safe electric service, etc."

Following the fire, Suter informed the Irvington Department of Housing Services (DHS) of the hazards posed by the third floor apartment. On December 11, 2006, DHS sent a notice to defendant's agent, Sharp Realty stating:

Our Tax records indicate the premises . . . is listed as a 2-Family, Attic and Basement cannot be occupied. Therefore[,] you are in violation of Property Maintenance Code PM 404.4.4. And you are hereby notified to remove illegal tenant from Attic.

Failure to comply by December 27, 2006 will result in immediate court action.

Thereafter, the doors and windows of the apartment were boarded.

On January 23, 2007, plaintiff presented an application for summary relief, alleging defendant's unlawful entry and detainer by filing a complaint and Order to Show Cause (OTSC), pursuant to N.J.S.A. 2A:39-6. Along with its opposition, defendant submitted a cross-motion to dismiss the complaint. On the return date of the OTSC, the judge had not been provided with defendant's cross-motion. The court ordered the papers to be resubmitted and continued the hearing.

Trial testimony was provided by plaintiff, Suter, and Donald Price, a retired contractor, who appeared at plaintiff's request regarding his expert opinion of the cost to repair the apartment's fire damage. The trial judge concluded defendant had not contravened plaintiff's rights as a tenant in the alleged apartment. He determined the safety risks posed following the fire and the notice that the apartment constituted an illegal residence precluded plaintiff's reentry. The court dismissed plaintiff's complaint. Plaintiff's motion to reconsider that decision was denied and this appeal followed.

Cumulatively, plaintiff's arguments on appeal suggest the trial court erred in dismissing his complaint based on an erroneous interpretation of N.J.S.A. 2A:39-1. Also, for the first time, plaintiff asserts an entitlement to the remedies provided by N.J.S.A. 2A:18-61.1g. In response, defendant argues the court's determination was correct and contends the appeal is mooted because the property was sold.

We first consider whether plaintiff presents a "justiciable claim for relief," Oxfeld v. N.J. State Bd. Of Educ., 68 N.J. 301, 303 (1975), notwithstanding the fact that defendant sold its ownership interest in the premises. It is clear defendant's transfer of ownership foreclosed plaintiff's pursuit of the remedy of possession, as provided by N.J.S.A. 2A:39-8, see Truesdell v. Carr, 351 N.J. Super. 317, 320 (Law Div. 2002) (treble damages may be awarded in lieu of possession). However, the statute also allows treble damages when possession "would be an inappropriate remedy." N.J.S.A. 2A:39-8; McNeil v. Estate of Lachmann, 285 N.J. Super. 212, 219 (App. Div. 1995). Thus, the matter may proceed as there remains "effective relief [and] . . . concrete adversity of interest between the parties." Caput Mortuum, L.L.C. v. S & S Crown Servs., Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004) (citing Advance Elec. Co. v. Montgomery Tp. Bd. Of Educ., 351 N.J. Super. 160 (App. Div. 2002)).

Turning to plaintiff's arguments, we note our standard of review of judicial factfinding in a nonjury trial is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We must determine whether the findings made are reasonably supported by adequate, substantial, credible evidence present in the record. Ibid.; Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). On the other hand, a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Plaintiff's complaint is based on the Forcible Entry and Detainer Act (Act), N.J.S.A. 2A:39-1 to -8. Specifically, N.J.S.A. 2A:39-1, provides in pertinent part:

No person shall enter upon or into any real property . . . and detain and hold the same, except where entry is given by law, and then only in a peaceable manner. With regard to any real property occupied solely as a residence by the party in possession, such entry shall not be made in any manner without the consent of the party in possession unless the entry and detention is made pursuant to legal process . . . .

At common law, a landlord could dispossess a holdover tenant peaceably, even using self-help to regain possession. Vasquez v. Glassboro Serv. Ass'n, 83 N.J. 86, 105 (1980) (citing Mershon v. Williams, 62 N.J.L. 779, 784 (E. & A. 1899)). Alternatively, a landlord could file for ejectment, which was a "slow and expensive" remedy. Ibid. The Legislature resolved these issues by the adoption of related statutes. The Act protects tenants from wrongful eviction and the seizure of personal property by overreaching landlords. Vasquez, supra, 83 N.J. at 105. The adoption of legislation providing for summary dispossession actions affords landlords a swifter proceeding to regain possession of the leasehold when a tenant wrongfully holds over or ceases rental payments. N.J.S.A. 2A:18-61.2; Hodges v. Sasil Corp., 189 N.J. 210, 221 (2007).

Plaintiff asserts defendant could only prevent his continued occupation of the apartment by obtaining a Judgment of Possession. N.J.S.A. 2A:18-57. Furthermore, defendant's failure to initiate legal proceedings violated the Act. Our analysis of this position requires examination of two questions. First, whether plaintiff was in possession at the time his reentry to the apartment was prevented, and, second, whether defendant's actions, under the circumstances described, are proscribed by the Act entitling plaintiff to damages.

Although possession under the Act has not been specifically defined, its meaning is contextual. This court has concluded the protections of the Act do not apply to transient or seasonal tenants residing at a hotel, motel or other guest house. See Vasquez, supra, 83 N.J. at 108 (migrant farmworkers using farmer's housing are not tenants); Francis v. Trinidad Motel, 261 N.J. Super. 252, 257 (App. Div. 1993) (plaintiff did not achieve tenant status merely by staying weekly at a motel room for an indefinite period paying a specially reduced rental), certif. denied, 133 N.J. 437 (1993); Poroznoff v. Alberti, 161 N.J. Super. 414, 422 (Cty. D.C. 1978), aff'd, 168 N.J. Super. 140 (App. Div. 1979) (the plaintiff's week-to-week occupancy of a room at the Y.M.C.A. as his sole residence was insufficient to establish his status other than as a transient guest); but see Williams v. Alexander Hamilton Hotel, 249 N.J. Super. 481, 486 (App. Div. 1991) (tenancy status for purposes of the Anti-Eviction Act arose when plaintiff's family resided in a hotel room for two-and-a-half years).

It is undisputed plaintiff's continued occupancy of the apartment was interrupted by the apartment fire. Defendant took no action to effectuate plaintiff's removal. Further, after removing plaintiff from the roof, the firefighters employed safety protocols and terminated the electric, gas, and water services of the premises. Plaintiff's surreptitious return through an unsecured back door at night does not change the fact that the fire department intended no one return to the premises until the fire investigation was completed and all utility systems were thoroughly checked. We determine the reasonableness of these actions cannot be challenged.

Plaintiff's trial assertion, expressing his intention to return to reside in the apartment following the fire, was belied by his correspondence directed to defendant a little more than two weeks after the fire. The letter discussed "significant" smoke and fire damage rendering the apartment uninhabitable. Moreover, on the day of the fire, plaintiff executed an agreement for a one month residential rental elsewhere, evincing an understanding his tenancy would not resume in a matter of days. Our review of the facts leads us to conclude plaintiff was not in possession at the time the firefighters shut off all necessary utilities intending to prevent occupancy. By plaintiff's admission, his apartment was not habitable due to the fire, smoke, and water damage. He never resumed living in the apartment after the fire. McNeill, supra, 285 N.J. Super. at 218. Accordingly, we agree with the trial judge that these facts fail to support an act of unlawful detainer by defendant.

One week later, defendant learned the attic apartment violated a municipal ordinance and it was "notified to remove [the] illegal tenant from [the a]ttic." Defendant then took steps to preclude further occupancy of the third floor, without prior resort to a summary dispossession proceeding.

We reject plaintiff's contention that defendant was required to commence an eviction proceeding, which generally, requires a three-month notice to quit be served upon a tenant prior to commencing legal process. N.J.S.A. 2A:18-56(a). During that time, if a property owner charged with a violation of a municipal ordinance such as that presented here, disregards the directive in the notice, it assumes a serious risk of increased jeopardy to a tenant's safety and welfare, along with the potential fines and penalties when found guilty. Gibbs v. Harrison, 253 N.J. Super. 673, 674-75 (Law Div. 1992). "Illegal apartments, which often take the form of impermissible attic, basement, and garage units, pose significant fire, health, and safety risks that extend well beyond the premises." Miah v. Ahmed, 179 N.J. 511, 524 (2004). We also determine it was reasonable for defendant to secure the premise once it received the DHS notice.

On these facts, we conclude plaintiff was not evicted by self-help repossession or some other illegal lockout. See Gibbs, supra, 253 N.J. Super. at 674. Were the Act to apply to the circumstances of this matter, a landlord would face the "Hobson's choice" of deciding whether to assume the liability and risks attached to allowing a tenant to resume living in an inhabitable, unsafe, illegal apartment, or to face an award of for treble damages. Such an absurd result is contrary to the breadth of the objectives of the legislation, along with the common sense applicable to the situation. Jersey City Chapter of Prop. Owner's Protective Ass'n v. City Council of Jersey City, 55 N.J. 86, 97 (1969). We affirm the trial court's order dismissing plaintiff's complaint, as defendant's actions fall outside the scope of what the Legislature proscribed in the Act.

We decline to address plaintiff's request for relief pursuant to the Anti-Eviction Statute, N.J.S.A. 2A:18-61.1g, as we do not "consider questions or issues not properly presented to the trial court when an opportunity for such presentation was available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citing Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)).

 
Affirmed.

During the hearing, plaintiff testified he had occupied the premises for twelve years. However, the record does not reveal when his tenancy commenced.

During this time, plaintiff contends he replaced the electrical wiring and reconnected the electricity in the apartment because he believed it was the cause of the fire.

The Property Maintenance Code PM 404.4.4 states "Kitchens and nonhabitable spaces shall not be used for sleeping purposes."

Three days prior to the return of the OTSC, defendant served plaintiff with a "Notice Terminating Lease" and demand for possession, effective June 30, 2007. The basis of eviction was the discovery that the apartment was deemed illegal. After dismissal of plaintiff's complaint, defendant sold the premises to GMD Developers, LLC (GMD) and never filed the anticipated summary dispossession proceeding.

We note the Legislature has made summary dispossession procedures inapplicability to hotels, motels or guest houses rented to transient guests or seasonal tenants. N.J.S.A. 2A:18-59.2.

A month to month tenancy requires the giving of one month's notice to quit. N.J.S.A. 2A:18-56(b)

A remedy exists, pursuant to N.J.S.A. 2A:18-61.1h, for tenants who have been evicted pursuant to N.J.S.A. 2A:18-61.1g(3). The amount of damages is six times the rent. Miah, supra, 179 N.J. at 522-23. However, the statute sets forth an exception for mortgagees in possession. N.J.S.A. 2A:18-61.1h(e).

(continued)

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A-1251-07T2

April 28, 2009