MIGUEL A. HECTOR v. HINDRAJ BALANI et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4474-05T54474-05T5

MIGUEL A. HECTOR,

Plaintiff-Respondent,

v.

HINDRAJ BALANI and

AMRITH RAMNATH,

Defendants-Appellants.

____________________________________________

 

Argued March 21, 2007 - Decided April 17, 2007

Before Judges A. A. Rodr guez and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. HUD-LT-4549-06.

Bruce E. Gudin argued the cause for appellants (Levy, Ehrlich & Petriello, attorneys; Mr. Gudin and Anne P. Ward, on the brief).

Thomas M. Venino, Jr. argued the cause for respondent (Venino and Venino, attorneys; Mr. Venino and Joanne Venino, on the brief).

PER CURIAM

This is a summary dispossess action brought and tried in the Special Civil Part of the Law Division pursuant to the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to 61-12. See 447 Assocs. v. Miranda, 115 N.J. 522 (1989). In a letter opinion, the court entered judgment for possession, terminating the lease and granting landlord, plaintiff Miguel A. Hector ("landlord"), the right to apply for a warrant of removal of the tenants, defendants Hindraj Balani and Amrith Ramnah ("tenants"). Because there is ample credible evidence in the record that supports a finding that tenants breached the lease, and there is no evidence that the trial court abused its discretion by refusing tenants the opportunity to cure the breach after the entry of judgment, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Landlord is the owner of an eleven-unit residential apartment complex in Union City. Landlord is subject to the Union City municipal rent leveling ordinance. Tenants leased a one bedroom apartment in the property for over fifteen years. The lease between the parties provided as follows:

16. Interruption of Services. The landlord is not responsible for any inconvenience or interruption of services due to repair, improvements, or for any reason beyond the landlord's control. In the event the landlord determines to renovate the tenant's apartment, the tenant agrees to relocate to a similar apartment.

On December 28, 2005, landlord notified tenants, by letter, of his intention to commence renovations on the property beginning approximately February 1, 2006. Landlord advised that he would be relocating tenants to a similar apartment located approximately six blocks away in neighboring North Bergen. He advised that the relocation would be temporary, only for as long as it takes to renovate the apartment, and that after the renovations are complete, they would be moved back to their current apartment, all at landlord's expense. Landlord advised that if he did not hear from tenants by January 6, 2006 he would assume that they were prepared to relocate when the renovations begin.

By letter dated January 5, 2006, tenants advised landlord that they were disputing the notice regarding relocation and stated that they wanted time to have the notice reviewed by their attorneys. Tenants argued in their letter that they needed more time to move and that they did not know the exact timeframe of the renovation or how long it would take. Landlord responded with a written notice to cease pursuant to N.J.S.A. 2A:18-61.2b and N.J.S.A. 2A:18-53c(4), advising that a refusal to relocate is a violation of the covenant contained in the lease to move so the landlord could commence renovations. Tenants responded by signing the typed statement on the notice to cease that they would "agree to abide by the provisions in paragraph 16 of our lease," and that they "revok[e] the dispute contained" in their earlier letter. They added, however, that

[W]e are only signing this agreement because we do not wish to violate paragraph 16 of our lease. We, however, will not give up any of our rights whatsoever in this matter. We still wish to have an attorney review and hope you won't object to it."

Landlord's counsel responded by letter on January 12, 2006 restating that the renovations were to begin on February 1.

Landlord's counsel advised tenants that the remaining tenants in the building would be moving on January 18, and that if tenants wished to view the new apartment, they could do so in the company of landlord. Landlord's counsel, on January 17 and 18, 2006, wrote to tenants acknowledging receipt of tenants' agreement to abide by the terms of the lease typed on the notice to cease and informing tenants of the address of the new apartment to which they would be relocating, the name of the movers, and that the movers would be at their apartment on Tuesday, January 24, 2006, at 8:30 a.m. to pack their belongings and move them.

On January 25, 2006, one day after the planned move did not occur, the landlord sent a second notice to cease pursuant to N.J.S.A. 2A:18-53c(4) and N.J.S.A. 2A:18-61.2b. Again, the grounds for termination of the lease were stated to be a violation of paragraph 16 of the lease, which requires them to move to a comparable apartment while landlord renovates the building. The notice pointed out that tenants failed to cooperate with the move on January 24, 2006. Landlord then sent a notice terminating the tenancy on January 30, 2006, pursuant to N.J.S.A. 2A:18-53c(4) and N.J.S.A. 2A:19-61.2b. By letter dated February 8, 2006, tenants' attorney wrote to landlord's attorney advising that he thought the notice required under the statute was ninety days and offered to negotiate a settlement. In response, landlord's counsel, on February 14, 2006, advised that he disagreed with tenants' counsel's interpretation of the required notice and that he would continue to move forward and look to tenants for monetary damages, in addition to the remedies available under the Anti-Eviction Act.

On February 20, 2006, tenants retained new counsel who wrote to landlord's counsel advising that they were interested in working out a resolution, provided that they have sixty days to relocate, receive assurances as to when they can return and an approximate rental amount that will be set when they return, as well as a guarantee that the temporary apartment is in good condition. On February 27, 2006, landlord's counsel responded noting that tenants were the only tenants left in the building, that the project was supposed to begin on February 1, and that landlord is incurring financial losses. However, he offered to settle the matter if tenants moved by March 1, 2006. On February 25, 2006, that offer was rejected by tenants.

On March 9, 2006, landlord served a complaint for possession on tenants seeking their eviction from the property and the termination of the lease. A trial was held on April 17 and 18, 2006. In addition to landlord, a number of tenants who had relocated testified. One of the tenants, defendant Hindraj Balani, also testified. During his testimony, he conceded that thirty days notice would be a reasonable time to move and stated that he did not move because he was looking for four different assurances from landlord. He wanted to know the time he would be out of his apartment, the new rent, which would be in effect when he returns, a guarantee that he would return, and an assurance that the building would not be turned into condominiums. The record reveals that he had consulted with two attorneys and now had a third attorney defending him at the trial, that he recognized that this was a rent controlled apartment and that the rent would not be determined until the improvements were completed. The trial court noted that the exact time for completion could not be determined since there were contractors working which landlord could not completely control and inspections that would have to occur. The record also contains a letter in which landlord had told tenants that they would be moving back and at his cost.

By letter opinion dated April 20, 2006, the trial court found tenants' "conduct to have been duplicitous." The trial court found that tenants had not shown good faith efforts to comply and that their demands were unrealistic and beyond the obligation of the landlord under the lease. Accordingly, the court entered judgment for possession, terminated the lease and granted landlord the right to apply for a warrant of removal according to law.

On April 28, 2006, tenants' fourth attorney wrote to landlord's counsel offering to move immediately. The letter argued that a late cure is recognized by the courts and would make enforcement of the judgment no longer equitable. On May 2, 2006, tenants' counsel filed an order to show cause for relief staying the eviction to permit tenants' motion for reconsideration to be heard. That order was denied. On May 3, 2006, a warrant of removal was signed providing that tenants must vacate by May 10, 2006, at 9 o'clock. On May 8, 2006, this appeal was filed.

On May 12, 2006, an order on emergent application was entered by our court granting a stay of judgment for possession and warrant for removal, provided that tenants immediately relocate so that the landlord may proceed with renovations.

On appeal, tenants present the following arguments for our consideration:

POINT I

THE EVIDENCE IN THE RECORD DOES NOT SUPPORT A FINDING THAT APPELLANTS BREACHED THE LEASE.

POINT II

THE LOWER COURT ABUSED ITS DISCRETION BY REFUSING APPELLANTS THE OPPORTUNITY TO CURE THE BREACH.

An appellate court is bound by the trial judge's determination of credibility and those findings of fact which are reasonably supported by the record. Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Where the focus of dispute is not on credibility but, instead, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the appellate function is somewhat broadened." Hanover Mobile Home v. Hanover Ville, 316 N.J. Super. 256, 266 (App. Div. 1998). If an appellate court's review of the record "leaves [it] with the definite conviction that the judge went so wide to the mark that a mistake must have been made," an appellant court may "appraise the record as if [it] were deciding the matter at inception and make [its] own finding and conclusions." Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff'd, 78 N.J. 320 (1978).

The trial judge's conclusion that tenants' breached the lease is amply supported by the trial testimony. The terms of the lease itself were not contradicted. The proofs indicated that all of the tenants left within three weeks of receiving the notice in December, 2005. There is no question that the lease provision at issue was reasonable. The proofs indicate that the need for relocation was so that the building could be rehabilitated. Testimony indicated that the lease had been entered into after a hearing before the court some ten years earlier. The covenant in the lease was directed to allow the building to be rehabilitated and the landlord's letter clearly indicated that, at his cost, he was moving the tenants and would be moving them back. The tenants' own testimony conceded that a thirty day notice to move would be reasonable. The requisite statutory notices were all appropriately given.

The Court has held that in order to proceed under N.J.S.A. 2A:18-61.1d, the burden of proof is on the landlord to establish the existence of good cause. 447 Assocs., supra, 115 N.J. at 531. Certainly public policy supports rehabilitating buildings to provide adequate and safe housing for tenants. In this case, landlord sought to relocate tenants beginning on December 28, 2005, and these tenants did not leave until after judgment was entered on or about May 12, 2006, over four months from the initial letter in spite of the clear provision in the lease to relocate.

What is abundantly clear is that the tenants did not relocate voluntarily or timely. As the trial court noted, they repeatedly advised that they wanted to comply, but they simply and obstinately did not. In summary dispossess proceedings, a landlord has the burden to prove every element of the claim by the greater weight of the credible evidence. Vill. Bridge Apts. v. Mammucari, 239 N.J. Super. 235, 240 (App. Div. 1990). The record amply supports the trial court's decision finding that landlord met his burden to prove each and every element of the claim by the greater weight of the credible evidence.

Tenants further argue that the trial court abused its discretion by refusing tenants the opportunity to cure the breach. The record indicates that there was no application either pre- or post-judgment to the trial judge to permit the tenants to cure the breach. Rather, tenants' attorney filed an order to show cause seeking a stay of the eviction pending a hearing on defendants' notice of motion for reconsideration and to vacate the judgment under R. 4:50-1(e) and (f) alleging that tenants had a right to cure and that they would relocate immediately. The order to show cause to stay the eviction was summarily denied. The appeal followed and the motion for reconsideration and to vacate the judgment was never heard in the trial court, therefore, we find it questionable whether this issue is appropriately before us. However, we have looked at the denial of the order to show cause as, in effect, a motion for relief from judgment under R. 4:50-1. See Jersey City Mgmt. v. Garcia, 321 N.J. Super. 543, 545 (App. Div. 1999).

Tenants argue that the trial court abused its discretion by refusing tenants an opportunity to cure relying on Hous. Auth. of Morristown v. Little, 135 N.J. 274 (1994) and Vill. Bridge Apts., supra, 239 N.J. Super. at 240. In Hous. Auth., the Court dealt with R. 4:50-1(e) and (f) and noted that the right of a judge to do equity using those provisions may be applied in tenancies but it must be used sparingly. 135 N.J. at 289. The Court noted that:

the discretion afforded to a trial court under the Rule also includes the duty to consider evidence in the record that militates against the grant of relief, including evidence that a tenant's past payment record has been erratic, or that the tenant has been disorderly, or has damaged the premises.

[Id. at 290.]

In Vill. Bridge Apts., our court affirmed the trial judge's decision delaying eviction for a period of time after judgment to allow tenant to cure, given the specific facts in that case. 239 N.J. Super. at 240.

Our court, however, in Muros v. Morales, carefully examined the issue of whether a tenant must be given an opportunity to correct the complained-of condition before or after a legal action has been filed. 268 N.J. Super. 590, 594 (App. Div. 1993). The court reviewed all of the causes for eviction under N.J.S.A. 2A:18-61.1 and noted that the statute does not answer the global question whether cessation of the statutory good-cause ground for eviction bars entry of a judgment for possession. Ibid. The court noted that there are good-cause grounds for eviction which are curable after commencement of a summary dispossess action and some which would not be. Id. at 595-96. The court particularly noted that, after a landlord has given the requisite notices and gone to the trouble and expense to prosecute an action and the tenant continues to breach the lease,

[s]omewhere along this time line, the landlord's equities become worthy of recognition along with the tenant's interest in continued occupancy of the rented premises. Whether that recognition results in disallowing a late cure, in conditioning dismissal of a dispossess action on an order for reimbursement of expenses, or in only a regretful shake of the head, is not at issue here.

[Id. at 596.]

A trial court, in reviewing an application to cure after the entry of the judgment under R. 4:50-1, must look at the totality of the circumstances. See In re Guardianship of J.N.H., 172 N.J. 440, 476 (2002). As explained by the Court in Court Inv. Co. v. Perillo, "[n]o categorization can be made of the situations which warrant redress under subsection (f) . . . [T]he very essence of (f) is its capacity for relief in exceptional situations and in such exceptional cases, its boundaries are expansive as the need to achieve equity and justice." 48 N.J. 334, 341 (1966).

An analysis, therefore, of the circumstances in this case is warranted. The equities favoring the tenant are that the Anti-Eviction Act seeks to provide tenants with the utmost protection in maintaining their home. On the landlord's side, though, there were ten of the eleven apartment units empty which were to be rehabilitated and the work could not commence for four months. The apartment to which tenants were to be relocated was kept vacant, at a loss to landlord, for four months. Landlord had contractors waiting to proceed who could not. Legal fees were incurred in pursuing a remedy which the court found clear and reasonable. While the tenants said thirty days would be reasonable to leave, they did not leave for over four months and then, only after a judgment was entered. Tenants stated that they wished to consult with attorneys and had four attorneys but still did not move. Tenants wanted to know what the rent would be and yet they were told repeatedly that it would be subject to an application under the rent control ordinance. Tenants wanted certain assurances which no one could reasonably give them. The balance of the equities in this case clearly rests with landlord.

Finally, tenants argue that the equitable doctrine recognized in Vineland Shopping Ctr. v. DeMarco, that equity abhors a forfeiture, is applicable and that to enforce the judgment here would be a forfeiture of tenants' lease interest. 35 N.J. 459, 469 (1961). However, we note the maxim that "equity follows the law." Natovitz v. Bay Head Realty Co., 142 N.J. Eq., 456, 463-64 (E. & A. 1948). In this case, the Anti-Eviction Act, a creature of the Legislature, was strictly adhered to and entitles landlord to relief. Further, the equitable maxim that "he who seeks equity must do equity" is also applicable. Hudson Bldg. & Loan Assoc. v. Black, 139 N.J. Eq., 88, 96 (E. & A. 1946). That maxim obliges the party seeking equitable relief to do what is required by conscience and good faith. Given the factual pattern and the trial court's findings, there was no good faith demonstrated by tenants.

 
Accordingly, for the reasons set forth, the judgment is affirmed. The stay granted by our court on May 12, 2006 shall be vacated on May 31, 2007 provided tenants continue to pay their rent in a timely fashion and otherwise abide by the terms of their former lease.

(continued)

(continued)

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A-4474-05T5

April 17, 2007