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Cedar Wright Gardens v. Ouheish

A-6290-07T1 (N.J. Super. App. Div. 2009) (Unpublished)

LANDLORD-TENANT; EVICTION — If a stipulation of settlement in an eviction matter does not expressly state that the parties have consented to entry of a judgment of possession, then a landlord is not automatically entitled to a judgment of possession and no warrant of removal may be issued without one.

A landlord sued tenants in one of its apartments because they failed to pay rent. It sought a judgment of possession and damages. The parties entered a stipulation of settlement. The stipulation did not address the judgment of possession sought in the initial complaint and did not provide any remedies for either party in the event of a breach. When the tenants failed to pay rent by the date set forth in the stipulation, the landlord filed a “Certification by Landlord” seeking the issuance of a warrant of removal. The clerk issued a warrant of removal directing the Special Civil Part Officer to dispossess the tenants. The tenants filed an order to show cause, seeking a stay of the warrant of removal. On the return date, the tenants argued the warrant should be vacated because no judgment of possession had been entered. The landlord argued that the warrant was validly issued based upon its tenants’ breach of the settlement.

The Law Division agreed with the tenants that the landlord used the wrong form. It noted that a warrant of removal is authorized only when the parties consent to an entry of a judgment of possession or enter into a stipulation of settlement in which a judgment of possession is entered upon the tenants’ breach of the terms of settlement. The Court held that it was “implied” in the settlement that if the tenants did not comply with the settlement, that breach authorizes the issuance of a warrant of removal. The Court then issued a hardship stay. The tenants appealed.

The Appellate Division reversed, agreeing with the lower court that no warrant of removal may be issued unless a judgment of possession has first been issued. The Court held that a judgment of possession is the critical judicial action that terminates a tenancy. Under court rules, for a court to enter a judgment of possession based upon a stipulation of settlement, the stipulation must be in writing and must expressly provide for issuance of the judgment. Since a court cannot interpret a settlement agreement more broadly than the parties intended, nor vary its material terms, the Court refused to imply that a breach of the stipulation authorized the issuance of a warrant of removal. In furtherance of this ruling it also noted that lower courts should generally favor a tenant rather than a landlord. Since a court’s jurisdiction in summary dispossess proceedings is entirely statutory, the Court held that the lower court lacked the authority to issue a warrant of removal in the absence of a judgment of possession. In addition, because the tenants had paid all the rent that was due before the entry of a valid final judgment, the summary dispossess action was dismissed. Accordingly, the lower court was directed to vacate the warrant of removal.


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