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Abella v. Mansour

A-7236-97T3 (N.J. Super. App. Div. 2000) (Unpublished)

LEASES; EVICTION—To evict a tenant that is unwilling to accept reasonable lease changes as a condition of renewal, a landlord must send a thirty day notice to terminate the tenancy and then a second, one month, notice to evict as a holdover tenant.

A landlord and a tenant signed a one year lease. The lease prohibited pets. Despite this, the tenant had a dog in the apartment for three years. According to the tenant, its landlord was aware of the dog’s presence in the apartment. At the expiration of the lease term, the tenant became a month-to-month tenant without any objection. About three years later, when the tenant decided to withhold rent in order to force its landlord to make certain repairs, the landlord served the tenant with “a notice to quit, and notice of increased rent.” The notice also terminated the tenancy and offered a new month-to-month tenancy upon certain conditions, including one that all pets must be removed from the apartment. The tenant did not pay several months’ rent and refused to sign a new lease, whereupon the landlord instituted a summary dispossess action alleging non-payment of rent and that the tenant was a holdover tenant. At a hearing, the lower court found that the tenant was not justified in withholding the monthly rent and also found that the tenant had not signed the new lease. On that date, the tenant paid the rent arrearages, but a warrant of removal was issued two weeks later. On appeal, the tenant contended that because he paid all rent arrearages, the warrant of removal was null and void and the tenancy complaint should have been dismissed. The Appellate Division agreed as to the cause of action based on non-payment of rent. It also agreed that because the landlord failed to comply with the notice requirements concerning the tenant’s alleged refusal to accept reasonable lease changes, the warrant to remove should have been dismissed altogether. Under N.J.S. 2A:18-61.2(e), one month’s notice must be given prior to institution of a summary dispossess action “alleging refusal of acceptance of reasonable lease changes.” Thus, there must first be a notice terminating the pre-existing tenancy and then, after a refusal by the tenant to accept the changes, the landlord must give a second notice at least thirty days prior to the institution of a dispossess action. Here, the landlord failed to give the second notice. Since this was a pre-requisite, the holdover count of the dispossess action should have been dismissed.


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