Skip to main content



Park v. Timber Creek Plaza, LLC

02-4929 (U.S. Dist. Ct. D. N.J. 2005) (Unpublished)

LANDLORD-TENANT; SUBLEASES—Failure to secure consent to a subleasing, as required by the terms of a lease, does not by itself void a subleasing since it is generally accepted that lessees may transfer their leases despite restrictions in their lease against doing so.

A subsubtenant sued its sublandlord, seeking damages and “the return of her property” after the sublandlord allegedly “forcibly removed [the subsubtenant] from, and took possession of, her massage therapy business.” The sublandlord sought to have the suit dismissed.

Originally, a businesswoman had bought the sublandlord’s massage business and then subleased the premises. Those premises had been leased by the sublandlord from a real-estate company. The record did not show whether the sublandlord needed the owner’s permission before making the sublease agreement. The businesswoman then resold the massage business to the subtenant who thereafter “took possession of the premises, [and] began renovations and conducted business therein.” The sublandlord claimed that the subtenant took possession of the premises without her knowledge, and the businesswoman’s husband admitted that he sold the business to the subtenant without the sublandlord’s consent or knowledge. Thereafter, the subtenant claimed that “she paid rent directly to” the lessor. Later, the subtenant and the businesswoman each received a letter from the sublandlord purporting to terminate the original sublease agreement between the sublandlord and the businesswoman. The subtenant claimed that about three months after receiving that letter, the sublandlord “and others arrived at the premises and forcibly removed” the subtenant “from the store and discarded certain of her property.”

Property Deprivation
The subtenant alleged that the sublandlord “deprived her of her property without due process of law in violation of the 14th Amendment of the Constitution.” The District Court dismissed that claim since “[d]eprivation of property without due process of law requires a showing of state action” and the subtenant failed to show that the sublandlord had exercised power “possessed by virtue of state law and made possible only because the wrongdoer [was] clothed with authority of state law.”

Detainer and Forcible Entry
The Court held that, in New Jersey, in order to recover under a claim of forcible entry and detainment of property, the claimant “must make a showing of legal actual possession at the time of entry ... as well as a showing of legal entitlement to actual possession”—although title to the property is not required. The sublandlord argued that the subtenant was not “legally entitled to possession of the premises” since she was “not a named party to any contractual agreement found in [the] record” and since she subleased the premises without the sublandlord’s “knowledge or consent, thereby violating the terms of the original sublease” between the sublandlord and the businesswoman, thereby voiding the businesswoman’s sublease agreement with the subtenant. The Court rejected this argument, finding that the businesswoman’s “failure to secure the permission of [the sublandlord] prior to subleasing the premises would not by itself void that agreement” since it is generally accepted that lessees may transfer their leases despite restrictions in the lease against doing so.

Thus, the Court held that “any sublease agreement entered into by [the businesswoman] was not void ... for failure to obtain” the sublessor’s consent. Additionally, the Court found that a dismissal of the subtenant’s claim would be improper since “a reasonable jury could conclude, based on the facts ... that [the subtenant] was in actual legal possession of the premises on the date of the alleged incident.” This conclusion was supported by the fact that the sublandlord “entered into a second sublease with” the businesswoman in what appeared to be an effort to circumvent the subtenant’s “entitlement to the premises” after the sublandlord and the businesswoman entered into their sublease agreement. The Court likewise rejected the sublandlord’s contention that “an unwritten commercial sublease is void” since the rule had since been changed. Finally, the Court held that since each party gave dissimilar accounts of what had occurred, it was more proper for a jury to resolve those factual disputes.

Distraint
The subtenant sought damages for wrongful distraint, which the Court referred to as “the ‘seizure of another’s property to secure the performance of a duty, such as payment of overdue rent.’” The sublandlord argued that the Court had no evidence that the subtenant “owned any of the property distrained and, thus, [was] not entitled” to any damages. The Court agreed and dismissed the subtenant’s conversion, trover, and wrongful distraint claims since her “evidence on the issue of ownership” was “a mere scintilla and [was] ‘not significantly probative.’”


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com