CEDAR WRIGHT GARDENS v. ALI AND JOAN OUHEISH

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6290-07T16290-07T1

CEDAR WRIGHT GARDENS,

Plaintiff-Respondent,

v.

ALI AND JOAN OUHEISH,

Defendants-Appellants.

________________________________________________________________

 

Argued May 6, 2009 - Decided

Before Judges Lyons and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. LT-4378-08.

Meena J. Ra argued the cause for appellants (Northeast New Jersey Legal Services, Inc., attorneys; Ms. Ra, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendants Ali and Joan Ouheish appeal from the denial of their motion to vacate a warrant of removal that was issued upon the application of their landlord, plaintiff Cedar Wright Gardens without notice or a hearing. We reverse.

On April 28, 2008, plaintiff filed a complaint against defendants for a judgment of possession based upon nonpayment of rent. According to the complaint, defendants owed the sum of $1822.64, consisting of $1411 in rent for the month of April, $75.55 in late charges, $55.09 for garage and MCI, as well as attorneys' fees and court costs. On May 21, 2008, a second complaint for judgment of possession was filed against defendants on grounds that included an allegation that defendants had damaged the premises, causing a leak to the apartment below. The parties entered into a stipulation of settlement prepared by defendants' counsel, Northeast New Jersey Legal Services, that was executed by defendants on June 24 and by plaintiff on June 25, 2008. In the stipulation, the parties agreed to assume certain obligations, which are recited here:

1. The Defendant will pay $2,938.00 to the Plaintiff for May and June 2008 rent.

2. The Homeless Prevention Program (HPP) will pay, on behalf of the Defendant, rent for April 2008 provided the Plaintiff has completed and returned the necessary paperwork to HPP which was sent via facsimile to the Plaintiff on June 24, 2008.

3. The Defendant does not admit any liability, responsibility, or fault for any damage alleged by the Plaintiff in this matter.

4. The Plaintiff will complete caulking around the bathtub and the floor of the Defendant's bathroom.

5. The Plaintiff will hire a licensed plumber to identify the source of the water leak in apartment 39-D.

6. [T]he Defendant will pay $52.50 in addition to the monthly rent due by the 5th of each month for July and August 2008.

The stipulation did not address the judgment of possession sought in the initial complaint and did not provide any remedies for either party in the event of a breach.

On July 9, 2008, plaintiff filed a "Certification by Landlord" seeking the issuance of a warrant of removal. The certification included this representation: "Tenant entered into

a Stipulation of Settlement . . . wherein tenant agreed to pay July's rent by July 5, 2008. Tenant has failed to pay July's rent entitling the Landlord [to] the issuance of a Warrant of Removal."

This certification purported to seek a warrant of removal based upon Rule 6:6-4, which addresses consent judgments for possession and stipulations of settlement. Subsection (b) authorizes the clerk to enter judgment of possession "[w]hen the tenant is represented by an attorney and the attorney has signed the agreement . . . upon receipt of the signed consent of the parties and the affidavit of the landlord and the certification of the landlord's attorney specified in R. 6:6-3(b)."

On July 14, 2008, the clerk issued a warrant of removal, directing the Special Civil Part Officer to dispossess defendants on or after July 18, 2008. Defendants filed an order to show cause, seeking a stay of the warrant of removal. The court scheduled the matter for July 21, 2008, adding the requirement that the tenant post $1519.59 with the court by 4:30 p.m. on July 17, 2008.

On the return date, defendants had posted the rent money with the court. Defense counsel argued that the warrant should be vacated because no judgment of possession had been entered. When plaintiff's counsel countered that the warrant was issued based upon defendants' breach of the settlement pursuant to Rule 6:6-4(b), the court reviewed the stipulation and observed, "You used the wrong form."

Rule 6:6-4(b) only authorizes the issuance of a warrant of removal by the clerk when the parties have consented to the entry of a judgment of possession or entered into a stipulation of settlement in which a judgment of possession is entered upon the tenants' breach of the terms of settlement. Defense counsel noted that there was no provision for the entry of a judgment of possession in the stipulation of settlement. This was not a mere oversight. Defense counsel had prepared the stipulation of settlement and advised the court that her office deleted this provision from all stipulations of settlement. The court rejected this argument, stating that such a provision was implied in the settlement, "It's, obviously, implied in there that if you don't comply with the settlement, there's a breach of the settlement. The breach being the warrant of removal." The court then issued a hardship stay of three months, which was later extended an additional three months.

The authority relied upon for the issuance of the warrant of removal here, Rule 6:6-4, states at the outset, "Notwithstanding any consent by a tenant, no warrant of removal may be issued or executed unless in compliance with all provisions of law." For the warrant of removal to comply with all provisions of law, there first had to be a judgment of possession. N.J.S.A. 2A:18-57 explicitly states that "No warrant of removal shall issue until the expiration of 3 days after entry of judgment for possession . . . ." The judgment of possession is the critical judicial action that terminates a tenancy. See Musselman v. Carroll, 289 N.J. Super. 549, 555 (App. Div. 1996).

Rule 6:6-4(a) describes the requirements for a stipulation of settlement that permits the court to enter a judgment for possession:

A stipulation of settlement or an agreement that provides for entry of a judgment for possession must be written, signed by the parties, and presented to a judge for approval on the day of trial . . . but if it requires the tenant to both pay rent and vacate the premises, the judge shall review it in open court.

[(Emphasis added.)]

Here, the written terms of the settlement did not provide for a judgment of possession to be entered upon defendants' failure to comply with the agreement.

The trial court's conclusion that the entry of a judgment of possession was implicit in the terms of the stipulation of settlement rests upon an interpretation of the terms of the stipulation, "a matter of law [that is] subject to de novo review." Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 190 (App. Div.), certif. denied, 196 N.J. 85 (2008). The terms of a settlement agreement are generally "given their plain and ordinary meaning." In re Estate of Vnencak, 398 N.J. Super. 464, 472 (App. Div. 2008) (quoting M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378, 396 (2002)). A court cannot interpret a settlement agreement in a manner that is broader than the parties intended, nor may it vary the material terms. Impink ex rel. Baldi v. Reynes, 396 N.J. Super. 553, 562-64 (App. Div. 2007); Isetts v. Borough of Roseland, 364 N.J. Super. 247, 254 (App. Div. 2003); see also Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 477 (App. Div. 2009). Moreover, where a question arises concerning the validity of a landlord-tenant agreement, trial courts should "generally favor the tenant rather than the landlord." Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 226 (1998) (quoting Carteret Properties v. Variety Donuts, Inc., 49 N.J. 116, 127, (1967)).

The principle that critical terms must be explicitly included in a landlord-tenant settlement is illustrated in Housing Authority v. Hayward, 81 N.J. 311 (1979). In Hayward, the plaintiff commenced summary dispossess proceedings based on nonpayment of rent, and the parties entered into a consent order settling the case upon the defendants' compliance with the order's terms. The order "did not fix a time within which compliance was required, nor did it provide for the entry of a judgment for possession ex parte if the terms of the order were not met." Id. at 313-14. When the defendants failed to comply, the plaintiff requested an ex parte judgment of possession and warrant of removal, both of which were issued the following day. Id. at 314. The Supreme Court held that the judgment was void and vacated a judgment of possession that was obtained ex parte in part because it was based on a settlement that did not explicitly provide for an ex parte application. Id. at 316-17. The Court stated that the landlord should not have sought the judgment ex parte and, even if the judgment had been entered lawfully, the court lacked jurisdiction to issue the warrant of removal on the same day because N.J.S.A. 2A:18-57 requires the "expiration of 3 days after entry of judgment for possession" before the warrant may be issued. Hayward, supra, 81 N.J. at 315-16.

If parties who agree to the entry of a judgment of possession must explicitly agree to the entry of the judgment ex parte for such a judgment to be valid, it is an ineluctable conclusion that a stipulation must explicitly provide for the entry of a judgment of possession, the critical judicial action to terminate a tenancy, before one can be entered. It was error to find that provision implicit in the stipulation of settlement here.

Since a court's jurisdiction in summary dispossess proceedings is "entirely statutory," Housing Auth. v. Little, 135 N.J. 274, 281 (1994), the court lacked the authority to issue a warrant of removal in the absence of a judgment of possession as required by N.J.S.A. 2A:18-57. Moreover, since defendants paid all rent that was due before the entry of a valid final judgment, the summary dispossess action must be dismissed pursuant to N.J.S.A. 2A:18-55. Little, supra, 135 N.J. at 281.

Reversed. The trial court is directed to vacate the warrant of removal and dismiss the complaint.

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A-6290-07T1

June 3, 2009