The opinion of the Court was delivered by ARNOLD M. STEIN, J.A.D.
We reverse the judgment of possession in favor of plaintiff landlord, vacate the order of possession and remand to the Law Division, Special Civil Part, for entry of a judgment in favor of defendant.
There is a stormy relationship between this landlord and this tenant. Pursuant to the Section 8
In the meantime, plaintiff began other preliminary steps to secure defendant's removal from the apartment.
By letter dated March 28, 1990, plaintiff's attorney sent defendant a notice to cease advising defendant that "[if] you do not immediately cease (stop) doing the acts complained of, you may be EVICTED. This means you may be forced to leave." The letter listed the following "acts complained of":
The notice to cease did not list or describe any occupants living in the apartment in addition to plaintiff and her son, nor did it list or describe any persons who occupied the premises as an assignee, subtenant or temporary guest in excess of seven days.
This notice to quit was fatally defective in at least three respects:
1. By the express language of N.J.S.A. 2A:18-53, the removal grounds therein cannot be used as the basis for removal of residential tenants pursuant to N.J.S.A. 2A:18-61.1;
2. The notice did not list or describe the unauthorized individual residing in defendant's apartment; and
3. Even if the claim for removal was based upon violation of any of the landlord's rules and regulations (N.J.S.A. 2A:18-61.1d) or a substantial breach of the lease covenants or agreements (N.J.S.A. 2A:18-61.1e), defendant was entitled to at least a one-month notice to quit the premises. N.J.S.A. 2A:18-61.2b. The notice did not specify in detail "the cause of termination of the tenancy" as required by N.J.S.A. 2A:18-61.2, Carteret Properties v. Variety Donuts, Inc., 49 N.J. 116, 124-25, 228 A.2d 674 (1967).
Plaintiff then commenced this dispossess action setting forth the following reasons for removal in its complaint:
The required notices served upon defendant prior to the filing of this complaint were a hodgepodge of inconsistencies, misinformation and vagueness. They fell far short of the statutory requirements of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq. No judgment for possession may be entered unless the landlord demonstrates strict compliance with these statutory provisions. RWB Newton Associates v. Gunn, 224 N.J.Super. 704, 709, 541 A.2d 280 (App.Div. 1988). As we
1. The tenant must violate the landlord's rules and regulations or lease provisions;
2. The landlord must give the tenant a notice to cease those violations;
3. The tenant must continue to violate the rules and regulation or lease provisions after receiving the notice to cease; and
4. The landlord must give the tenant a notice of termination one month before filing suit. Id.
After service of the complaint, defendant filed a motion to consolidate this case with an already-existing tenancy-related action previously remanded by us to the Law Division. The motion, returnable on the return date of this case, was denied. The judge ruling on the motion stated:
That day, this case was tried by a different judge.
We see no reason why this later action should not have been consolidated with the earlier pending action. The cases involve the same landlord, the same tenant, the same premises and a similar general issue, plaintiff's right to dispossess tenant. The interest of justice is not served by piece-meal disposition of the ultimate conflict, plaintiff's right to possession of the premises and defendant's right to remain in her apartment. R. 4:38-1(a); 6:4-1(a).
Plaintiff's trial proofs consisted of evidence that defendant's friend, William Kingston, was frequently present at her apartment, as much as four or five days per week.
The trial judge made no findings as to whether Kingston was an unauthorized occupant of the apartment in violation of the lease. Instead, he decided that plaintiff was entitled to
It was improper for the trial judge to terminate defendant's possession of the apartment for violation of a lease provision never mentioned by the landlord. Moreover, paragraph 38 cannot be a basis for judgment of possession because it is not a reasonable lease provision. Violation of a lease covenant or agreement may be the basis for removal of a residential tenant "provided that such covenant or agreement is reasonable." N.J.S.A. 2A:18-61.1. This is not a reasonable lease provision because it interferes with the covenant of quiet enjoyment set forth in paragraph 8 of the lease. Paragraph 38 bars "reoccurring visits" by adult persons or children. This would disallow such regular visitors as babysitters and visiting care providers for the elderly or disabled. The prohibition is so vague as to be clearly unenforceable. Paragraph 38 further provides that "one continuous visit of seven (7) or more days and nights in a thirty (30) day period will be considered a violation of the lease and cause for termination." Under this provision, a tenant could not have the same guest on continuous weekends, entertain a relative or friend for eight continuous days or exercise a two-week visitation or regular weekend visitation with the tenant's child pursuant to a shared custody or visitation arrangement.
Reversed and remanded to the Law Division for entry of judgment in favor of defendant.