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398 N.J. Super. 299 (App. Div.), certif. denied, 195 N.J. 521 (2008). We again affirm in part; reverse in part; and
remand the matter for further proceedings consistent with this opinion. "> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
The status of this decision is unpublished
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This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2503-07T12503-07T1
CAPITAL FINANCE COMPANY OF
DELAWARE VALLEY, INC.,
Plaintiff-Respondent,
v.
MAUREEN BELL ASTERBADI,
Defendant-Appellant,
and
PNC BANK, and
BOTOOL M. HILNI,
Defendants.
Argued November 5, 2008 - Decided
Before Judges Fuentes and Gilroy.
On appeal from the Superior Court of New Jersey, Chancery Division, Cape May County,
Docket No. C-100-05.
William F. Ziegler argued the cause for appellant (Holston, MacDonald, Uzdavinis,
Eastlack, Ziegler & Lodge, attorneys; Mr. Ziegler, on the brief).
Anne S. Cantwell argued the cause for respondent (Dembo & Saldutti, attorneys; Ms.
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Cantwell, on the brief).
PER CURIAM
Defendant Maureen Bell Asterbadi appeals from the December 14, 2007 order entered on cross-motions to enforce
litigant's rights. This is the second appeal in this matter. The prior procedural history and the statement of facts are
contained in the trial court's reported decision, Capital Fin. Co. v. Asterbadi, 389 N.J. Super. 219 (Ch. Div. 2002) and
in our opinion, affirming in part and reversing in part, Capital Fin. Co. v. Asterbadi, 398 N.J. Super. 299 (App. Div.),
certif. denied, 195 N.J. 521 (2008). We again affirm in part; reverse in part; and remand the matter for further
proceedings consistent with this opinion.
For the purpose of this opinion, it is sufficient to state that plaintiff, Capital Finance Company of Delaware Valley,
Inc., via a judicial sale to collect on a judgment entered against defendant's husband only, succeeded to the
husband's interest as tenant by the entirety in a single-family home in Stone Harbor (the Property). Capital Fin. Co.,
supra, 398 N.J. Super. at 304-05. Plaintiff filed an action seeking to compel a partition of the Property. Id. at 306.
The trial court determined that plaintiff and defendant possessed title to the Property as tenants in common, with a
right of survivorship measured against the lives of defendant and her husband; denied plaintiff's request for
partition; granted plaintiff's request seeking to compel defendant to account for her use and possession of the
Property; directed plaintiff and defendant to establish a fair rental value for the Property; directed plaintiff to
account to defendant for payments of real estate taxes, municipal assessments and insurance premiums; and
granted plaintiff's request to inspect the Property on reasonable notice to defendant. Id. at 306. In addition, the trial
court ordered plaintiff to contribute toward the second mortgage on the Property, but denied defendant's request
that plaintiff contribute toward the first mortgage. Id. at 306-07.
On appeal, we affirmed the trial court's determinations that: the parties hold title to the Property as tenants in
common, with a right of survivorship measured against the lives of defendant and her husband, id. at 309;
defendant's continued occupancy constitutes a constructive ouster of plaintiff, id. at 312; and defendant is to
account to plaintiff for her use and possession of the Property (one-half) based on the imputed fair rental value of
the Property, id. at 311-12. However, we reversed the trial court's ruling pertaining to the first mortgage
indebtedness and determined that plaintiff was obligated to account to defendant for its share of the principal and
interest paid thereon. Id. 312-13. Concerning plaintiff's obligation to account to defendant for payments that
defendant made to preserve the parties' interest in the Property, we stated:
A cotenant who has paid operating and maintenance expenses of the property is
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entitled to an accounting for a pro-rata share from the other cotenants, regardless of
who[m] is in possession. Esteves v. Esteves, 341 N.J. Super. 197, 201-02 (App. Div. 2001).
Operating and maintenance expenses include, but are not limited to, charges such as
taxes, mortgage, interest, and necessary repairs essential to the maintenance of the
capital value of the property. Baird v. Moore, 50 N.J. Super. 156, 169 (App. Div. 1958).
"[O]n principle, the mere fact of possession by the cotenant making advances for the
benefit of the common estate should not preclude reimbursement by contribution
from the cotenants sharing in the benefits by the preservation of the common
property." Id. at 165-66.
[Capital Fin. Co., supra, 398 N.J. Super. at 311.]
In describing the maintenance expenses for which plaintiff must account to defendant, we stated that defendant
was entitled to an offset against the imputed rental value of the Property for any payments "made to preserve the
Property, including payments made on both mortgages, as well as taxes, insurance, and repairs." Id. at 312
(emphasis added).
While the prior appeal was pending, plaintiff filed a motion seeking to enforce litigant's rights, contending that
defendant had not filed an accounting for the 2005-2006 year as previously directed by the trial court. Defendant
cross-moved, seeking an order compelling plaintiff to indemnify her from penalties imposed by the New Jersey
Department of Environmental Protection (DEP) because of plaintiff's removal of sand from the Property. Argument
on plaintiff's motion centered on the accounting that defendant served on plaintiff after defendant received
plaintiff's motion to enforce litigants rights.
Under the accounting, defendant estimated the imputed gross seasonal rental value for the Property at $58,300.
Defendant sought to deduct from that rental value the amounts paid for seasonal supplies, general maintenance
and repairs of $12,389 (the Expenses); utilities of $2,248.29; and taxes and insurance of $15,367.44, for a net rental
value of $28,295.27. Accordingly, defendant sought approval of paying plaintiff one-half of the net figure, or
$14,147.63.
Plaintiff challenged the accounting, contending that the Expenses claimed by defendant were general occupancy
expenses, not the necessary repairs needed for preservation of the Property. Plaintiff argued that only defendant
should bear the cost of the Expenses. Alternatively, plaintiff contended that even if some of the Expenses claimed
were necessary for preservation of the Property, defendant failed to comply with the terms of the trial court's order
of March 16, 2006, directing "that the parties shall, other than in an emergency, obtain consent from each other
before effecting any alterations or capital repairs to the [P]roperty." Thus, plaintiff asserted that defendant owed an
additional $6,437.37 under the 2005-2006 accounting.
On November 30, 2007, the trial judge, without the benefit of our prior opinion, rendered an oral decision, which,
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among other matters: 1) accepted plaintiff's accounting and determined defendant owed an additional $6,437.37
for her use and possession of the Property for the 2005-2006 season; 2) determined that defendant, as the tenant in
occupancy, is responsible for all "ordinary and necessary occupational expenses" and that defendant was not
entitled to the $12,389 credit for the Expenses; and 3) directed plaintiff to indemnify and hold defendant harmless
from all fines and penalties of the DEP. A confirming order was entered on December 14, 2007.
As framed by defendant, "[t]he only issue presented by virtue of this appeal is whether or not it was appropriate for
the trial judge to rule that all ordinary and customary expenses of occupancy shall be the exclusive obligation of the
party in possession, at present, [defendant]." Defendant argues that the Expenses were "reasonable and necessary
expenses attendant to maintenance of the [P]roperty and keeping the [P]roperty in a rentable condition."
Defendant contends that because of the "construct" created by the trial judge, she is renting the Property while
paying one-half of the imputed fair rental value to plaintiff; and therefore, she should "be permitted to deduct
reasonable and necessary expenses associated with maintaining the [P]roperty." We disagree.
We previously held that defendant's continued occupancy of the Property constitutes a constructive ouster of
plaintiff. Id. at 312. We concluded that as the tenant in occupancy, while defendant is accountable for one-half of
the imputed rental value of the Property to plaintiff, she is entitled to a credit for plaintiff's pro-rata share of the
"[o]perating and maintenance expenses includ[ing], but [] not limited to, charges such as taxes, mortgage, interest,
and necessary repairs essential to the maintenance of the capital value of the Property." Id. at 311. We further
described the necessary repairs as those needed "to preserve" the Property. Id. at 312. In applying that standard
against the Expenses, we conclude that defendant is not entitled to an accounting for the following items: window
air conditioners, kitchen supplies, bedding and sheets, a trash can, clothes pins and battery for fire alarm, outside
grill, grill cover, plants and flowers, plumbing charges, carpet cleaning, weed control, and beach tags, totaling
$2,215.26. Although these items may be necessary expenses to rent the Property to a third party, they are not
necessary to maintain or preserve the capital value of the Property.
Defendant claims that the balance of the Expenses for painting, replacement of a window, repair of a screen door
and replacement of blinds, totaling $10,173.74, were incurred as a result of an act of vandalism that occurred at the
Property and were necessary to preserve the Property. This issue requires a remand for the trial court to ascertain
the exact nature of each of those items and the reason therefore. If any of those items represent expenses necessary
to maintain or preserve the capital value of the Property, defendant is entitled to a credit from plaintiff for one-half
of such costs, unless the item or items were incurred in violation of the trial court's order of March 16, 2006,
requiring defendant to provide advance notice to plaintiff, except on an emergency basis. The issue of whether
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defendant had sufficient time to first give plaintiff notice of the repairs or whether they needed to be made on an
emergency basis without notice is to be resolved by the trial court on remand.
Affirmed in part; reversed in part; and remanded to the trial court for further proceedings consistent with this
opinion.
Defendants PNC Bank and Botool M. Hilni are not involved in this appeal. Accordingly, for the purpose of this
opinion, the term "defendant" shall only refer to Maureen Bell Asterbadi.
The Expenses included $5,235.80 for painting and paint supplies; $3,900 for replacement of a window; $300 for
replacement of a screen door; $737.94 for replacement/repair of blinds; $652.72 for window air conditioners;
$142.22 for kitchen supplies; $391.35 for bedding and sheets; $14.83 for a trash can; $23.37 for clothespins and
battery for a fire alarm; $240.58 for outside grill and cover; $53.74 for plants and flowers; $169.56 for beach chairs;
$164.89 for plumbing supplies/repairs; $122 for carpet cleaning; $150 for weed control; and $90 for beach tags,
totaling $12,389.
On October 26, 2007, defendant's counsel forwarded his firm's attorney trust account check to plaintiff's counsel in
the amount of $14,147.63.
Plaintiff claimed that it was owed $20,585 from defendant under the accounting rather than the $14,147.63 paid by
defendant on October 26, 2007. Although plaintiff agreed that the fair rental value of the property was $58,300 as
stated by defendant, plaintiff asserted that the parties were only responsible to share on a 50/50 basis utilities and
supplies in the amount of $4,323 and taxes and insurance in the amount of $12,806.20, resulting in a net figure of
the fair rental value of $41,170.80, requiring defendant to pay one-half or $20,585.40, rounded down to $20,585.
(continued)
(continued)
4
A-2503-07T1
December 4, 2008
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