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Zoltak v. O’Connor

A-2790-07T1 (N.J. Super. App. Div. 2009) (Unpublished)

LANDLORD-TENANT; EVICTION — Where a request by a landlord for attorney’s fees remains unresolved, a final judgment for possession remains interlocutory, and the tenant’s appeal may be timely filed even if made as long as two years after granting of the final judgment of possession.

A tenant of a rent-controlled basement apartment was diagnosed with chronic depression and a number of anxiety disorders. The apartment was the only rental unit on the basement level, but the basement also included access to gas and electric meters in the hallway leading to the tenant’s rental unit. Based on the tenant’s diagnoses, she was considered disabled and received federal disability assistance. In addition, she received assistance from her parents. Her landlord, in consideration of the resident’s condition, allowed her to keep books and children’s artwork in the building’s hallways. He also allowed her to keep the hallway doors locked under the condition that she allowed access for the meter readings. After a new owner purchased the building, the tenant refused to sign and agree to new rules and regulations for the building. The new owner brought an action against the tenant for her refusal to sign the new rules and regulations. The lower court found that some of the rules and regulations were appropriate and gave the tenant a deadline for accepting them. The tenant refused to agree to those rules and regulations and a judgment for possession was entered in favor of the owner. Subsequently, the tenant agreed to a revised version of the rules and regulations including provisions prohibiting the tenant from locking the hallway door leading to the basement or using the hallway’s common area for storage. She did not abide by the agreed-upon changes. Through her attorney, the tenant informed the owner that her use of part of the hallway’s common area was necessary so that she could maintain a “buffer zone” from the outside world. In response to a second action for possession, the tenant brought a civil rights claim against the landlord. The lower court issued a judgment for possession in favor of the landlord, but stayed removal of the tenant until the New Jersey Civil Rights Division issued a determination as to the tenant’s civil rights claim. Following the Civil Rights Division’s denial of the tenant’s claim and motions for post-judgment relief, the judgment for possession was entered but stayed pending appeal.

On appeal, the Appellate Division held that the tenant’s appeal was timely even though it was filed two years after the final judgment for possession because an earlier request by the owner for attorneys fees was still to be resolved. This made the judgment of possession interlocutory. It also found that the lower court did not express a material basis for its decision granting possession to the landlord in the second action. In addition, the Court pointed that conditions and circumstances had changed since the lower court’s visit to the premises during the first action, and those changes were disregarded by the lower court in the second proceeding. According to the Court, the lower court should have considered whether the violations had been cured and reversed. Therefore, it remanded the matter for a determination as to whether there has been substantial compliance with the owner’s rules and regulations and whether any breach or violations attributed to the tenant had been cured.


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