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Ivy Hill Park Section III v. Smirnova

362 N.J. Super. 421, 828 A.2d 343 (Law Div. 2003)

LANDLORD-TENANT; EVICTION—The concept of damage to property as employed in the Anti-Eviction Act refers to damage caused by a tenant to tangible property, not to intangible property, such as a landlord’s asserted interest in good smelling air.

A man undertook an “alternative medical treatment.” It required him to boil his urine. He fell asleep and the urine boiled over and the pot’s plastic handle melted. Another tenant complained of the resulting noxious odor to the property manager. The property owner then sought to evict the tenant “for having caused damage either willfully or through gross negligence,” alleging that the odor of the boiling urine which emanated from, or “seeped” out of, the man’s apartment damaged its property. The tenant responded that “the odor did not constitute ‘destruction, damage or injury to the premises’” and that his conduct was neither willful nor grossly negligent. He further alleged that he “promptly remediated the problem by cleaning up and applying certain deodorants.” The landlord argued that “[t]he air in the [man’s] apartment [was] not [his] private property; it circulate[d] into other apartments, as well as the common areas of the building, ” and claimed it had property rights to the air. It further alleged that the odor of urine in the air made the air unusable for its normal purpose, constituting damage or destruction to the air in which the landlord had rights. It also argued that the odor was caused by the man’s voluntary act. Lastly, it argued that “[t]he statute clearly does not contemplate an opportunity to cure the damage or destruction once it has occurred.”

The Court agreed that curing the problem or later eliminating the problem is irrelevant to an eviction pursuant to the anti-eviction statute. It also agreed that the conduct was grossly negligent. “Gross negligence is conduct that comes somewhere between ‘simple’ negligence and the intentional infliction of harm, or, ‘willful misconduct.’” With respect to whether it caused damage or destruction, the Court looked to an Appellate Division case holding that a tenant who stole money from his landlord’s coin operated washer and dryer machines did not cause “any damage to the machines, coin boxes or any of [the landlord’s] property.” It looked to “whether the Legislature contemplated that the destruction, damage or injury must be to tangible ‘property’ or whether it may be to an intangible character or quality ... inherent in property.” It was the Court’s conclusion that “an adverse affect [sic] to the human senses was not in the contemplation of the Legislature as damage or destruction, but that the Legislature contemplated that the damage would be to tangible property only.” This was not to say that the landlord had no remedy for the man having created the noxious odor. It could seek eviction “for substantial breach of rules and regulations, or of the lease, or for destroying the peace and quiet of the occupants or other tenants living in [the] house or neighborhood.” If the tenant did not violate any of those provisions, the landlord simply had no remedy.


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