SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-417-95T1
WILLIAM MUSSELMAN and CHANDRA RAMU,
Plaintiffs-Respondents,
vs.
KAREN CARROLL,
Defendant/Counterclaimant-
Appellant.
Argued March 19, 1996 - Decided April 12, 1996
Before Judges Baime and Villanueva.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Bergen
County.
Michael P. Hickey argued the cause for
appellant.
Respondents William Musselman and Chandra
Ramu argued the cause pro se.
The opinion of the court was delivered by
VILLANUEVA, J.A.D. (retired and temporarily assigned on recall)
Defendant Karen Carroll appeals from the trial court's order dismissing her counterclaim for lost rent and ordering defendant to return plaintiffs' security deposit, minus certain charges for damages to the premises and a late fee.See footnote 1 We reverse and remand
for entry of judgment on the counterclaim in favor of
defendant/counterclaimant.
Defendant is the owner of a single-family house located at
214 Larch Avenue, Teaneck, New Jersey. On or about August 29,
1994, defendant entered into a written lease of the premises with
plaintiffs Chandra Ramu and William Musselman. While negotiating
to rent defendant's house, plaintiffs advised defendant that they
wished to have a month-to-month lease since they were hoping to
buy a residence. In light of the fact that the plaintiffs might
terminate the lease in a short period of time, defendant required
a sixty-day notice-to-vacate provision so that she would have
sufficient time to re-rent the premises. The signed lease
provided that the term would be month-to-month and would begin on
September 1, 1994, but plaintiffs agreed to provide defendant
with sixty-days' notice of their intention to vacate. In
addition, plaintiffs provided a security deposit equal to one and
one-half months' rent.
Approximately two months after moving into the house, on or
about November 15, 1994, plaintiffs sent a letter to defendant,
stating they intended to move out on January 15, 1995. As a
result of plaintiffs' notice, defendant sought to rent the house
to Pam Aspen. Aspen allegedly agreed to rent the house so long
as it would be available on January 15, 1995. As a result of
this oral agreement, defendant sent a letter to plaintiffs on
December 29, 1994. For some inexplicable reason, the trial court
refused to consider this letter which confirmed plaintiffs' move-out date of January 15, 1995, and also advised plaintiffs that
since defendant had re-rented the house as a result of their
notice to vacate, defendant expected plaintiffs to move out by
January 15, 1995.
In response, plaintiffs sent defendant a letter dated
January 1, 1995, advising her that they would not vacate the
house on January 15, 1995, as originally stated but that they
intended to remain in the house until the end of January.
Defendant contacted Aspen, who advised defendant that she already
had given notice to her landlord that she would be leaving and
that she had to either move into defendant's house by January 15
or find someplace else to live. Defendant sent another letter to
plaintiffs advising them that she had re-rented the house and
that they would be required to vacate the premises by January 15,
1995.
The uncertainty of the situation led Aspen to speak directly
with the plaintiffs about their plans. Shortly after Aspen met
with plaintiffs, she advised defendant that she would be unable
to sign a lease because defendant could not assure her that the
plaintiffs would move out by the fifteenth. Due to plaintiffs'
unilateral extension of their move-out date, defendant lost Aspen
as a tenant.
Defendant accepted the plaintiffs' payment of rent for the
remainder of January, expecting plaintiffs to vacate by the end
of that month. However, on February 4, 1995, plaintiffs sent
defendant a letter with a rent check for the first two weeks of
February, stating that they had no idea when they were going to
move. Plaintiffs also advised defendant that she should not rent
the premises without first checking with them. At that point,
since defendant had no idea when the house would become
available, she obviously was unable to re-rent the house.
On February 14, 1995, defendant, upset by plaintiffs'
refusal to pay February's rent in full and afraid plaintiffs
might not pay rent even for the remainder of February, sent
plaintiffs a letter advising them that the remaining rent for
February was due immediately and that she would file a notice of
eviction if she did not receive the February rent by February 15,
1995. Despite the fact that plaintiffs clearly owed the
remaining rent for February, they did not pay it but, instead,
had their attorney send a letter to defendant's attorney asking
to discuss the matter further. The trial court inexplicably
refused to consider these two letters.
On February 16, 1995, when defendant still had not received
the rent, she discussed filing a dispossess claim with a clerk in
the Superior Court, Special Civil Part, who told her to file a
complaint for possession indicating that she was seeking one and
one-half months' rent, possession of the premises and costs.
Defendant did so on that same day. We note that defendant did
not have the advice of counsel at the time and claims to have not
known the difference between an action for rent and an action for
possession.
Plaintiffs sent defendant a letter dated February 16, 1995,
which purported to enclose a check for the rent for the remainder
of February and stated that they intended to "vacate the house at
the end of February." The rent payment was not enclosed with the
letter but came with a different letter a few days later in which
plaintiffs indicated their intention to move out by the end of
February. Plaintiffs' attorney then advised defendant by letter
that plaintiffs expected to receive their entire security deposit
back. Again, the trial court inexplicably failed to consider
these letters.
In light of plaintiffs' prior practices, defendant had no
reason to believe plaintiffs would actually move out by the end
of February. Plaintiffs ultimately vacated the premises on
February 24, 1995. However, defendant was not able to secure a
new tenant until April 12, 1995, for a move-in date of May 1,
1995. Since defendant lost two months rent, she retained
plaintiffs' security deposit.
On or about May 4, 1995, plaintiffs filed this action
against defendant for the return of their security deposit and
for various other alleged damages. Defendant filed an answer and
counterclaim for damages, claiming lost rent due to plaintiffs'
failure to provide the required sixty-day notice of their
intention to vacate, a late charge, and damage to the premises.
The trial court ordered defendant to return plaintiffs'
security deposit, minus certain charges for damages to the
premises and a late fee. The trial court dismissed the
plaintiffs' other claims for damages and dismissed defendant's
counterclaim for lost rent. The trial court allowed defendant
$75 for the damage to the bathroom and $35 for the late fee,
resulting in a judgment for a net amount of $2,125 (security
deposit of $2,235 less $110). The trial court told defendant,
"You're going to pay the money or [sic] you want me to put a
judgment in." The trial court based its opinion on its belief
that the filing of the complaint for possession terminated the
tenancy and, thereafter, defendant "voluntarily accepted the two
weeks rent."
On appeal, defendant argues that the trial court erred in dismissing defendant's counterclaim for the loss of two months' rent due to plaintiffs' failure to provide sixty-days' notice of their intent to vacate. We agree.
Simply stated, the trial court failed to enforce the lease as written. Parties may enter a lease which provides for a period of notice to vacate different from statutory notice provisions, and the parties will be bound to such terms. See Pennsylvania R. R. v. L. Albert & Son, Inc., 26 N.J. Super. 508, 513 (App. Div. 1953), certif. denied, 13 N.J. 361 (1953) ("`[W]here, as here, the parties agree on the number of days to be given to terminate the tenancy there is no violence to public policy if such an agreement be enforced.'") (citation omitted).
Further, the trial court's ruling ignored the essential purpose of a notice provision in a lease -- to provide the
landlord with "a reasonable opportunity to secure another
tenant." S.D.G. v. Inventory Control Co.,
178 N.J. Super. 411,
415 (App. Div. 1981); see also Harry's Village, Inc. v. Egg
Harbor Tp.,
89 N.J. 576, 584 (1982). Although plaintiffs
repeatedly changed their move-out date and remained unable or
unwilling to provide any commitment as to when they would vacate,
the trial court relieved plaintiffs of their obligations under
the lease and even denied defendant the right to the minimum one
month's notice to quit provided by the common law rule. See
S.D.G. v. Inventory Control Co., supra, 178 N.J. Super. at 414-15.
Defendant argues that the trial court erred in holding that defendant's filing of an action for rent and possession terminated both the lease and plaintiffs' obligation to provide defendant with notice of the date they would vacate the premises. We agree with defendant.
Contrary to the trial court's holding, it is a judgment of possession, and not the filing of a complaint for possession, which will terminate a tenancy. An action for possession will be dismissed if the tenant pays the amount of rent owed before a judgment is entered. Stanger v. Ridgeway, 171 N.J. Super. 466, 473 (App. Div. 1979); see also Vineland Shopping Ctr., Inc. v. DeMarco, 35 N.J. 459, 465 (1961). Thus, the effect of a tenant's
payment of rentSee footnote 2 before a judgment is entered, as was done
herein, is to dismiss the complaint and continue the tenancy at
issue. See N.J.S.A. 2A:18-55. Once defendant received the rent,
the trial court's jurisdiction to terminate the tenancy ended; if
defendant wanted to continue to dispossess plaintiffs, she could
not do so without filing a new complaint based upon new grounds.
See Vineland Shopping Ctr., Inc. v. DeMarco, supra, 35 N.J. at
465 (Upon payment of past-due rent, "the court's jurisdiction
ends.").
Defendant's acceptance of the rent was not a waiver of her
rights under the lease, particularly since she objected to the
plaintiffs' extension of their stay and notified them they would
be responsible for the damages.See footnote 3 See Montgomery Gateway East I
v. Herrera,
261 N.J. Super. 235, 240 (App. Div. 1992). To rule
otherwise would punish defendant for accepting rent which she was
entitled to receive under the lease. Moreover, to compel her to
reject the rent would be inequitable in that it would require her
to forego rent she was entitled to receive by law -- rent she
possibly would be unable to collect in a subsequent action for
money damages -- solely because the plaintiffs breached their
agreement.
We reverse and remand to the trial court to enter judgment on the counterclaim for March and April rent, $35 for a late charge and $75 for shower damage, plus interest on the total damages, less the security deposit with accrued interest thereon.
Footnote: 1 The order also dismisses plaintiffs' contract and tort claims from which there was no cross-appeal. Footnote: 2 The balance of the February rent was paid in late February, before the March 9 return date of the dispossess action. The complaint was therefore withdrawn. Footnote: 3 Actually, plaintiffs could have been charged double rent for the period after January 15, 1995, that possession was withheld. See N.J.S.A 2A:42-5 & 6.