NICHOLAS AURIEMMA, SR v. ANDREW WONG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NICHOLAS AURIEMMA, SR.,

and DAWN BOUGHTON f/k/a

DAWN AURIEMMA,

Plaintiffs-Respondents,

v.

ANDREW WONG and WAI MEI LAU,

Defendants-Appellants.

________________________________________

December 22, 2014

Submitted November 12, 2014 - Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. LT-2096-13.

Thomas J. Major, attorney for appellants.

Respondents have not filed a brief.

PER CURIAM

Defendants Andrew Wong ("Andrew") and Wai Mei Lau ("Wai Mei") appeal from an order entered on September 26, 2013, by the Law Division, Special Civil Part, granting a judgment for possession in favor of plaintiffs Nicholas Auriemma, Sr. ("Nicholas") and Dawn Auriemma ("Dawn") in this landlord-tenant dispute. For the reasons that follow, we affirm.

Plaintiffs are the owners of a residence on Cutter Drive in East Hanover. In August 2011, plaintiffs leased the premises to defendants for a term beginning on September 1, 2011 and ending one year later. Among other things, the lease required defendants to pay monthly rent of $2450. The lease was not renewed, but became a month-to-month tenancy after September 1, 2012.

Initially, defendants resided in the premises with Dawn's aunt, Grace Roach ("Grace"), who paid plaintiffs $1100 per month in rent, and divided the cost of the utilities with defendants. Defendants and Grace initially shared the residence, but at some point Andrew wanted more privacy for his family, and defendants had a door installed separating Grace's space from the space that defendants occupied.

Near the end of 2012, Dawn informed defendants that she wanted to move into the residence. She asked defendants to leave and Andrew said they would do so by the end of January 2013. However, defendants did not vacate the premises and began to pay reduced rent. In February 2013, defendants only paid $1810. In April and May 2013, they paid $975. In May 2013, John DePola ("DePola"), the municipality's code enforcement officer, visited the property to investigate complaints from neighbors. Later, DePola returned to the premises with Thomas Pershouse ("Pershouse"), the Township's zoning official.

Pershouse went through the house and noticed the door separating defendants' space from the space that Grace occupied. He also noticed that there were stoves in both sections of the house. Pershouse and DePola determined that the residence violated the Township's zoning regulations, because it had become an illegal two-family dwelling in an area zoned for single-family dwellings.

In June 2013, Pershouse sent a letter to plaintiffs informing them that the residence was in violation of the Township's zoning ordinance. Pershouse wrote that the violation must be corrected immediately "to avoid further action." In July 2010, Dawn wrote to plaintiffs, confirming that she had informed them that the tenancy had "to terminate." Defendants did not pay any rent in July or August 2013.

On August 6, 2013, plaintiffs filed their landlord-tenant complaint in the Special Civil Part, seeking a judgment for possession based on non-payment of rent and certain unspecified other reasons. In addition, on August 5, 2013, plaintiffs filed a complaint in the Special Civil Part seeking damages for the removal of furniture and a tree without the owners' consent, non-payment of a heating bill and the costs of certain repairs. They sought $15,000, plus interest and costs. Defendants denied liability, and asserted a counterclaim seeking a return of rent paid in the amount of $53,900 because the tenancy was an illegal occupancy. They also sought relocation costs of $14,700 pursuant to N.J.S.A. 2A:18-61.1h.

Defendants did not pay rent in September 2013. That month, police officers, acting pursuant to a court order, went to the premises to remove the stove and the door separating Grace's area of the house from defendants' area. Defendants initially refused to allow the officers to enter.

Eventually, defendants allowed the officers to remove the stove in Grace's area and the door dividing the premises. According to DePola, at that point, the premises were once again considered to be a single-family dwelling. Pershouse, DePola and members of the fire department inspected the premises and found no ordinance violations.

On September 26, 2013, the trial court entered a judgment for possession in favor of plaintiffs on the landlord-tenant complaint, based on the non-payment of rent. The court found that $10,940 in rent was due and owing at that time. The court determined that, because the illegal occupancy had been corrected, defendants were not being displaced for that reason. Therefore, defendants were not entitled to relocation expenses pursuant to N.J.S.A. 2A:18-61.1h. On November 6, 2013, defendants filed their notice of appeal from the September 26, 2013 order. The trial court later filed a written opinion pursuant to Rule 2:5-1(b), amplifying its reasons for entering the judgment.

On December 4, 2013, defendants moved in the trial court to transfer plaintiffs' damage claims and defendants' counterclaims to the Civil Part of the Law Division, and to stay further proceedings in that matter pending disposition of their appeal from the judgment for possession. The trial court entered an order dated February 4, 2014, transferring the parties' damage claims to the Civil Part. The court stayed further proceedings in that matter pending disposition of this appeal.

In this appeal, defendants argue: (1) the trial court's determination regarding the legality of defendants' occupancy at Cutter Drive has a preclusive effect on their damage claims which requires relief from this court; (2) the trial court's ruling is subject to de novo review; (3) the trial court erred by denying relocation expenses pursuant to N.J.S.A. 2A:18-61.1(g)(3) and N.J.S.A. 2A:18-61.1h; (4) the trial court incorrectly ruled that the illegal occupancy had been abated; and (5) this court should exercise its original jurisdiction and award relocation expenses pursuant to N.J.S.A. 2A:18-61.1h.

We turn first to defendants' contention that the trial court erred by finding that they are not entitled to relocation expenses pursuant to N.J.S.A. 2A:18-61.1h. In this case, plaintiffs sought defendants' removal from the leased premises pursuant to the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, which provides in pertinent part that

No lessee or tenant . . . may be removed by the Superior Court from any house . . . except upon establishment of one of the following grounds as good cause

a. The person fails to pay rent due and owing under the lease whether the same be oral or written;

. . .

g. The landlord or owner . . . (3) seeks to correct an illegal occupancy because he has been cited by local or State housing inspectors or zoning officers and it is unfeasible to correct such illegal occupancy without removing the tenant.

[N.J.S.A. 2A:18-61.1(a); -61.1(g)(3).]

If a tenant is evicted on the latter grounds, and the municipality where the premises are located has not enacted an ordinance pursuant to N.J.S.A. 2A:18-61.1g, providing for payment of relocation expenses when a tenant is evicted based on an illegal occupancy, "the displaced residential tenant shall be entitled to reimbursement for relocation expenses from the owner in an amount equal to six times the monthly rental paid by the displaced person. N.J.S.A. 2A:18-61.1h(a).

Here, plaintiffs' initially sought defendants' removal from the leased premises on the basis of non-payment of rent and other reasons. As the trial court explained in its written opinion, judgment was entered for plaintiffs "based upon nonpayment of rent," and not on any other basis.

Defendants argue, however, that they were actually removed from the premises on the basis of the illegal occupancy. They note that the Township's zoning official had cited plaintiffs for an illegal occupancy. The court nevertheless found, based on DePola's testimony, that at the time of trial, the illegal occupancy had been abated and the premises were no longer in violation of the Township's zoning ordinance.

Defendants contend the court's ruling was erroneous as a matter of law. Defendants assert that, when occupied by their family and Grace, the residence could not be considered a single-family dwelling under the Township's code. Defendants insist that the court erred by relying upon DePola's determination that the premises were in compliance with the Township's zoning requirements.

Defendants' arguments ignore the fact that they were evicted from the premises based on non-payment of rent, not on the basis of an illegal occupancy. It is undisputed that defendants had failed to pay rent when due. As we have noted, the court found that they owed $10,940 in unpaid rent. Defendants' non-payment of rent allowed for their removal from the premises pursuant to N.J.S.A. 2A:18-61.1(a), and that is the basis upon which the court entered its judgment for possession.

We note that, under N.J.S.A. 2A:18-61.1(g)(3), a tenant can be removed when the landlord or owner seeks (1) to correct an illegal occupancy as determined by a local or state housing inspector or zoning officer, and (2) it is not feasible to correct the illegal occupancy without removing the tenant. Here, defendants had been cited by the Township's officials with violating the Township's zoning code, but they later determined that the violation had been abated.

In support of their contention that the Township's officials erred by finding that the illegal occupancy had been corrected, defendants cite Section 95-3 of the Township's municipal code, which defines a one-family dwelling as "[a] building or portion thereof which is designed or used exclusively as the living quarters for one family as defined in this chapter." Township of East Hanover, N.J., Code ch. 95, art. II, 95-3 (Aug. 11, 2014). Defendants contend that their family and Grace did not meet the definition of a "family" under the code. However, the Township's officials could reasonably have determined that, once the dividing door and second stove had been removed, the residence in question was once again a dwelling "designed" to serve as living quarters for one family.

In view of our decision that the trial court correctly determined that defendants were not entitled to relocation expenses, we need not address defendants' other arguments.

Affirmed.