One month notice to quit required to evict on month to month tenancy
NOT FOR PUBLICATION
WITHOUT THE
APPROVAL OF THE APPELLATE
DIVISION
SUPERIOR
COURT OF NEW JERSEY
APPELLATE
DIVISION
JACOB ZLOTKIN,
Plaintiff-Respondent,
v.
LEORA DUBROVSKY REALTY
GROUP, LLC,
Defendant-Appellant.
__________________________________
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Argued May 9, 2016 – Decided
Before Judges Nugent and Higbee.
On appeal from Superior Court of New Jersey, Law Division,
Special Civil Part, Monmouth County, Docket No. LT-3277-14.
Elias L. Schneider argued the cause for appellant.
George J. Cieri argued the cause for respondent.
PER CURIAM
Defendant, Leora
Dubrovsky Realty Group, LLC, appeals from a July 11, 2014 judgment for
possession issued against it in an action brought by plaintiff, Jacob Zlotkin. We affirm.
Plaintiff is the
owner of a commercial unit on Court Street in Freehold. On May 10, 2012, plaintiff and defendant
entered into a one-year commercial lease (the "May 2012 lease") of the
unit on Court Street, with rent payable in $300 monthly installments. The lease also provided defendant had the
option to extend the lease on a year-to-year basis for the next five years. This provision stated all other terms of the
renewal would remain identical, except for yearly rent increases to be
negotiated by the parties.
As the lease drew
near its end, the parties were unable to agree on a rent increase. Defendant remained in possession of the
premises past the expiration of the lease term. For several more months, defendant paid rent
under the rate fixed by the May 2012 lease. Later in 2013, plaintiff served defendant with
a Notice to Quit and a Demand for Possession, effective November 1, 2013. Again, defendant remained in possession of the
property past this date.
Plaintiff filed a
summary dispossession action. After
trial, a judgment for possession of the property was entered for plaintiff, and
this appeal followed. In subsequent
proceedings in 2014, the parties agreed to a stay of the execution of the
judgment of possession pending this appeal.
The court's scope
of review of a judgment rendered after a non-jury trial is limited, and should
not be disturbed unless completely unsupported by the evidence in the record. Rova Farms Resort, Inc. v. Investors Ins.
Co. of Am., 65 N.J. 474, 483-84 (1974). More specifically, "[w]e do not weigh
the evidence, assess the credibility of witnesses, or make conclusions about
the evidence." Mountain Hill,
L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div.
2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)), certif.
denied, 199 N.J. 129 (2009).
Indeed, we "do not disturb the factual findings and legal
conclusions of the trial judge unless convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Rova Farms Resort, supra, 65 N.J.
at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super.
154, 155 (App. Div. 1963)).
Defendant asserts
because this lease was year-to-year, the notice to quit was not timely, and
thus the court lacked jurisdiction to enter judgment on plaintiff's summary dispossession
action. This argument misses the mark. N.J.S.A. 2A:18-53(a) vests in the
Special Civil Part jurisdiction of actions to remove non-residential holdover
lessees and tenants.
N.J.S.A.
2A:18-56(a),(b) sets forth the time periods for serving the notice to quit. Subsection (a) requires that year-to-year
tenants be given at least three months' notice, while subsection (b) requires
month-to-month tenants be given only a single months' notice. Therefore, to resolve the issue before us we
must determine the lease term at the time the defendant was noticed: a month-to-month term, in which case notice
was timely, or a year-to-year term, in which case notice was untimely. This question, in turn, requires resolving
whether defendant successfully exercised its option to renew under the May 2012
lease.
Defendant
challenges on appeal the interpretation of the parties' rights and responsibilities
under the lease agreement and contends it successfully exercised its option to
renew for another year under the terms of the May 2012 lease. The interpretation of contracts is a
"matter of law for the court subject to de novo review." Sealed Air Corp. v. Royal Indem. Co.,
404 N.J. Super. 363, 376, certif. denied, 196 N.J. 601
(2008); see also Town of Kearny v. Disc. City of Old Bridge, Inc.,
205 N.J. 386, 411 (2011) (applying this principle to the interpretation
of leases).
At trial, the
judge credited testimony that negotiations to exercise the option provided by
the May 2012 lease took place during the 2013-2014 term. The record contains both oral testimony as
well as evidence of email exchanges between the parties regarding price
negotiations.[1]
However, the parties were ultimately
unable to agree on a rent increase. Based
upon this testimony, the trial judge determined there was no "meeting of
the minds" and the option to renew was not exercised. We agree.
A tenant who holds
over beyond the expiration of their lease term is deemed to be a month-to-month
tenant. N.J.S.A. 46:8-10. Therefore, when defendant held over, the
company became a month-to-month tenant, entitled to only a month's notice to
quit. N.J.S.A. 2A:18-56(b). Since this notice to quit was appropriately
given, the trial court committed no error by hearing plaintiff's summary
dispossession action.
Defendant argues,
in the alternative, that although the parties could not agree on the rental
amount, the trial judge was in error by not intervening and supplying a
reasonable rental amount. Putting aside
the fact defendant did not request the court supply a rental amount at any time
prior to trial, there is no legal authority in New Jersey providing a court to set
a new rental amount when parties are unable to agree. As defendant admits in its brief, there is no
reported New Jersey case where a New Jersey court has set a new rental amount
where parties only agreed to agree to negotiate future increases, but are
unable to agree on the amount of rent to be paid during the renewed term. Defendant provides extensive citations to
other jurisdictions – ranging from Alaska to the U.S. Virgin Islands – to
illustrate use of this practice elsewhere. Absent guiding New Jersey precedent, the trial
judge correctly refused to set a rent for the parties and properly entered the judgment
of possession.
Affirmed.
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[1] At trial, there was also discussion
regarding a proposed May 2013 lease, which contained several different terms
and eliminated all options to renew. Defendant
argues that these changes are evidence of plaintiff's failure to abide by the
terms of the May 2012 lease and a failure to negotiate a yearly rent increase
in good faith. However, the exact role
of this second lease is unclear. Plaintiff
was unable to testify confidently that he personally prepared this second
lease, or as to what its specific function in the negation process may have
been. What is clear, however, is that
this lease did not represent the totality of the negotiations between the
parties.
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