Opinion
DOCKET NO. A-5142-11T2
07-22-2013
ANNA MAE CASHIN, Plaintiff-Appellant, v. MARISELA BELLO AND MARTINO BELLO, Defendants-Respondents.
Roberta L. Tarkan argued the cause for appellant. Cathy C. Cardillo argued the cause for respondents.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Espinosa and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. LT-4847-12.
Roberta L. Tarkan argued the cause for appellant.
Cathy C. Cardillo argued the cause for respondents. PER CURIAM
Plaintiff-landlord Anna Mae Cashin appeals from a June 19, 2012 judgment of the landlord-tenant court dismissing her complaint for possession of a rental unit in Hoboken that she owns and wishes to occupy personally. We affirm.
The Anti-Eviction Act prohibits the removal of residential tenants "except upon establishment of . . . good cause." N.J.S.A. 2A:18-61.1. The meaning of "good cause" is explicitly set forth in the statute as "grounds" for eviction designated by separate subsections marked (a) through (r). Subsection (1) authorizes a landlord to dispossess a tenant when the owner seeks to occupy that unit personally.
The Anti-Eviction Act does not apply to all residential tenancies. The exemptions listed in the introductory paragraph of N.J.S.A. 2A:18-61.1 are not applicable in this case, and therefore, the statute applies.
Subsection (1) was not originally part of the Anti-Eviction Act but was added by 1975 amendments. In Cabrera v. Mordan, 220 N.J. Super. 373, 377-78 (Law Div. 1987), overruled on other grounds by Durruthy v. Brunert, 228 N.J. Super. 199, 200 (App. Div. 1988), certif. denied, 114 N.J. 482 (1989), the Law Division referenced judicial decisions prompting enactment of the statutory amendment. Those decisions had questioned the deprivation of property rights of owners or purchasers of residential property who sought personally to occupy one of the rental units. See Bradley v. Rapp, 132 N.J. Super. 429, 433-34 (App. Div.), certif. denied, 68 N.J. 149 (1975); Sabato v. Sabato, 135 N.J. Super. 158, 172-75 (Law Div. 1975), overruled by Puttrich v. Smith, 170 N.J. Super. 572, 576 (App. Div. 1979). The Legislature's response was to enact amendments of the Anti-Eviction Act applicable to a "building," or to condominiums, cooperatives, or mobile homes, consisting of three or fewer residential units. N.J.S.A. 2A:18-61.1(1) .
The part of the statute relevant to this case provides as a ground for eviction that:
The owner of a building of three residential units or less seeks to personally occupy a unit, or has contracted to sell the residential unit to a buyer who wishes to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing.In this appeal, our attention is focused on the word "building" in the statute. The issue is whether plaintiff qualifies as the "owner of a building of three residential units or less."
[N.J.S.A. 2A:18-61.1(l)(3).]
The relevant facts were developed at a trial in the landlord-tenant court. Plaintiff, a seventy-seven-year-old widow, owns and lives in a townhouse on Hudson Street in Hoboken. Her husband died two years before she filed this eviction action against defendant Marisela Bello, who has resided in the subject rental unit for forty years.
In 1966, plaintiff and her husband purchased property on Washington Street in Hoboken that contained a building with six apartments and a separate two-car garage, originally built as a horse stable. They converted the garage into an apartment. They and their children occupied the garage-apartment (also referred to as the carriage house) for about four years beginning in the late 1960s. The apartments in the main residential building were rented to tenants.
After plaintiff's family moved out of the garage-apartment, it was rented to a tenant beginning in 1971 and then to defendant Marisela Bello beginning in 1973. Defendant has remained there continuously since that time. Her son, defendant Martino Bello, resides with her in the apartment and was also named a defendant in the eviction action.
Over the years, plaintiff's husband managed the Washington Street rental property. The property was zoned for a maximum of six rental units. The ground floor apartment in the main building was converted at some point into a workshop and later a storage facility. So, the property consisted of five residential units in the main building and the additional garage-apartment as a separate structure. At some point, plaintiff and her husband also permitted a telecommunications antenna to be constructed on the roof of the main building, and they collected rent from a major cell phone communications provider for that use.
The garage-apartment was never listed separately on the tax rolls of the city, and no separate deed was ever executed or recorded for it as a distinct property. But it acquired a separate mailing address on Court Street. Apparently, it is not unusual for a single lot in Hoboken to have different street addresses for different dwelling units located on the same lot. Defendant-tenants received their mail at the Court Street address, not at the Washington Street address.
Plaintiff and her husband never registered the garage-apartment as a rental unit with the City of Hoboken. During the time of defendants' tenancy, plaintiff's husband did not raise defendants' rent in conjunction with rent increases in the apartments in the main building. In fact, records of the Hoboken Rent Leveling Board indicate approved rent increases for the five residential units in the main building but make no mention of the garage-unit. At the time of plaintiff's eviction action, defendants were paying $345 per month for the garage-unit, which plaintiff claims is approximately fourteen percent of the market rate for the unit.
In 2009, when plaintiff's husband was hospitalized, she issued a notice to quit upon defendants, stating that her son wished to occupy the garage-unit. Through counsel, defendants rejected the notice to quit and declined to vacate the apartment. Plaintiff took no further action at that time to evict defendants.
After her husband died, plaintiff again issued a notice to quit to defendants, this time indicating that she wished to occupy the garage-unit herself. She filed her complaint for possession in April 2012. At the trial, plaintiff testified that she suffered from osteoarthritis and wished to move from her Hudson Street home to the smaller garage-unit on Court Street. She testified that she would modify that unit to make it more accessible and thus to accommodate her health needs, including avoiding stairs. On cross-examination, she acknowledged that her home on Hudson Street had a working elevator accessible to all floors. In addition, defendants presented evidence to show that the garage-unit had stairs that could not be avoided.
The trial court did not reach a decision as to plaintiff's bona fide intent to occupy the unit personally. In a written decision issued on June 11, 2012, the court assumed that such a reason existed. The court concluded, however, that N.J.S.A. 2A:18-61.1(1)(3) did not apply to plaintiff's complaint for possession because the property contains more than three residential units. Consequently, the court dismissed plaintiff's complaint.
On appeal, plaintiff contends that the trial court erred because the garage-unit is in a separate "building" containing only one residential unit. She argues that the court should have interpreted the words of the statute as they were written, rather than construing the word "building" in subsection (1)(3) as synonymous with the word "premises" in other parts of the Anti-Eviction Act.
Defendants respond that subsection (l) was enacted as a remedy for owners or buyers of small rental buildings who wished to occupy a unit themselves. It was not intended to apply to "investment type ownership" of residential rental units.
We begin by acknowledging that the legislative intent in enacting the Anti-Eviction Act is contained in "findings" of the Legislature stated in N.J.S.A. 2A:18-61.1a, including that "[i]t is in the public interest of the State to maintain for citizens the broadest protections available under State eviction laws to avoid . . . displacement and resultant loss of affordable housing . . . and personal hardship, which is particularly severe for vulnerable seniors." N.J.S.A. 2A:18-61.1a(d). We stated in 3519-3513 Realty, LLC v. Law, 406 N.J. Super. 423, 425-26 (App. Div. 2009), that:
[T]he clear purpose of this statute is to protect residential tenants from the effects of what the Legislature has recognized to be a severe shortage of rental housing in this state. Its overall purpose is to prevent the eviction of blameless tenants by limiting the permissible bases for their removal.
[Citations omitted.]
We must not lose sight of that legislative purpose in addressing the disputed issue on appeal. See In re Adoption of N.J.A.C. 7:11, 149 N.J. 119, 127-28 (1997). Furthermore, "[i]n establishing tenants' rights to continued occupancy of their rental dwellings the Anti-Eviction Act is remedial legislation deserving of liberal construction." 447 Assocs. v. Miranda, 115 N.J. 522, 529 (1989).
Plaintiff emphasizes that subsection (1)(3) applies to a "building of three residential units or less," and there can be no dispute that the garage-apartment is a separate building from the main building that contains five residential units. She argues that the Anti-Eviction Act uses the word "premises" when it makes reference to the entirety of the landlord's property, see Fresco v. Policastro, 186 N.J. Super. 204, 207 (Dist. Ct. 1982), and the Legislature is presumed to have intended a different meaning when it used the word "building" in subsection (1)(3).
Plaintiff's isolation of the word "building" from the rest of the language of subsection (1)(3) leads to a mistaken reading of the statute and a deviation from the Legislature's intent. The statute provides a ground for eviction for "[t]he owner of a building of three residential units or less." Plaintiff is the owner of the entirety of the Washington Street property. She does not have distinguishable ownership of the garage-unit, although it is a separate structure from the main residential building. Our dissenting colleague refers to the garage-apartment as a single family home, but no evidence was presented in the landlord-tenant court of a subdivision of the Washington Street property. Furthermore, plaintiff did not contend that a dual use of her property, as the site of both a single-family residence and an apartment building, complies with Hoboken's zoning laws.
Under the statute, plaintiff is the owner of six residential units located at the Washington Street property, not three or less, and all six have been rented to tenants for the past forty-two years. The trial court correctly concluded that subsection (1)(3) does not apply to her complaint for possession of one of those units.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
GUADAGNO, J.A.D., dissenting
I disagree with the majority's conclusion that a building, converted from a garage to a two-story residence in 1967 and utilized as such for over forty-five years, is not a separate structure under the Anti-Eviction Act, and must be considered part of a nearby, unconnected apartment building. Because I believe the owner is entitled to occupy this residence under the Act, I respectfully dissent.
Plaintiff, Anna Mae Cashin, and her husband John, purchased properties on Court Street and Washington Street in 1966. "Washington Street" is a six-unit residential building. "Court Street" is located behind Washington Street, separated by a small yard. The two buildings are not connected.
When the Cashins purchased the two buildings, Court Street was a two-story garage. They converted it to a single family home and began to live there in 1967 or 1968. Mr. Cashin was a professional engineer and obtained all the necessary permits from the City of Hoboken to convert the building from a garage to a residence, although the conversion was not recorded with the Hoboken tax assessor. As a result, Court Street does not appear as a separate property on the tax map.
Plaintiff and her family lived at Court Street until 1971. Defendant, Marissa Bello, began renting Court Street in 1973 and continues to reside there with her son, Martino. Bello currently pays $375 per month, five dollars more per month than she paid in 1973. Over the years, Bello experienced "family difficulties." As a result, Mr. Cashin did not raise her rent beyond a five-dollar increase in the 1970s. Bello's rent is approximately fourteen percent of the rent paid by the tenants of Washington Street.
John Cashin died in 2010. Plaintiff, who is now seventy-seven, wants to move into Court Street, which is much smaller than her current eleven-room townhouse. Plaintiff suffers from arthritic osteoporosis and finds the high front stoop and stairs at her current residence difficult to climb, while Court Street can be entered directly from the street. She also seeks the financial advantages of lower upkeep and utility costs that come with the smaller building.
In 2012, plaintiff filed a registration statement for Court Street with the City of Hoboken Rent Leveling Office, seeking to register that building. Finding no record in the tax assessor's office showing Court Street as a "separate property," the rent regulation officer filed the registration statement in the Washington Street property file.
There is no evidence in the record before us that the rent regulation officer was aware that the City issued a permit for the conversion of Court Street from a garage to a dwelling in 1966.
After plaintiff filed a complaint for eviction, defendant claimed that Court Street was not a legally recognizable property and the court lacked jurisdiction to evict her. After trial, the court dismissed the complaint, finding that Court Street was not a "building" under the Anti-Eviction Act. N.J.S.A. 2A:18-61.1(l)(3). The judge based this conclusion entirely on Hoboken's tax records, noting that "[p]laintiff pays one real estate tax assessment for the two buildings." He found "the tax assessor records indicate the property at [. . .] Court Street is a garage and not a house," and concluded that Court Street was "technically a garage, a structure associated with an apartment building."
Although Court Street was a garage in 1966 when the Cashins purchased it, there is no question that it has been converted into a separate two-story single-family dwelling unit and has been utilized as such for more than forty-five years.
While the tax records should be given some consideration, they are not dispositive as to the nature of the structure. Consideration must be given to how the structure has been used over the last forty-five years and whether the City approved the conversion from a garage to a dwelling.
After paying rent to live at Court Street for over forty-years, I find defendant's argument that her dwelling should be considered a garage, is inconsistent with her own use of the building. Through the kindness of plaintiff and her husband, Bello has paid only a small fraction of the rent that could have been charged, with only a five-dollar increase during her forty year tenancy. Bello's desire to continue to reap the benefits of the Cashins' beneficence both for herself and her son is understandable; her argument that the single-family home where she has resided for over forty years, is really a "garage," is not.
Under certain circumstances, the Act protects the surviving resident of a household from eviction if he "bore a substantial portion of responsibility for the rental obligation of [the] tenancy." Maglies v. Estate of Guy, 193 N.J. 108, 112 (2007).
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Plaintiff's testimony that her husband obtained all necessary permits from the City of Hoboken before the premises was converted from a garage to a dwelling in 1966 is not disputed. Thus, we are left with a situation where, as the trial judge noted, the tax assessor's records have not been updated. I find this fact, standing alone, insufficient to conclude, as the majority does, that Court Street should be considered an additional residential unit of Washington Street. In determining how this structure should be viewed, the approval of the conversion by the City of Hoboken is entitled to at least as much consideration as the failure to have the records of the tax assessor updated.
While my colleagues correctly note that one purpose of the Anti-Eviction Act is to "prevent the eviction of blameless tenants," ante at 7, the Act also permits the owner of a building of three residential units or less to remove a tenant if the owner seeks to personally occupy one of the units. N.J.S.A. 2A:18-61.1(l)(3). Because plaintiff's stated desire to occupy her single-family house on Court Street constitutes "good cause" under N.J.S.A. 2A:18-61.1(l)(3), I respectfully dissent.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION