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New Jersey. An appellate court agrees the trial court correctly decided the tenants could be evicted because they “kept and harbored” their daughter’s dog each day even though they did not own the dog and the dog did not sleep at their apartment at night.
The appellate court affirms a trial court’s decision that the landlord was entitled to evict its tenants for violating the “no pet provision” of their lease agreement. The landlord gave the tenants a notice to vacate and claimed they were in violation of their lease agreement because they “kept or harbored” a dog in their apartment.
The tenants refused to vacate, and a holdover eviction action was filed against them by the landlord.
The tenants filed a motion to dismiss the eviction case because they said the dog belonged to their daughter who lived nearby, and that the dog merely visited them in their apartment at “unspecified times and unstated intervals” when their daughter was at work.
They told the court the dog did not stay at the apartment overnight and was merely a guest during the day — sometimes. The landlord produced evidence from several neighboring tenants who said the dog’s visits occurred on a daily basis, and the dog was walked several times a day at virtually the same times each day.
The trial court said the tenants’ claim that the dog merely visited them on various occasions “fell far short of meeting tenants’ burden to eliminate all triable issues as to whether they kept or harbored the dog in violation of the proprietary lease terms.” And since they failed to produce sufficient evidence to overcome the landlord’s evidence, the landlord’s motion for summary judgment was properly granted.
The tenants admitted they walked the dog at almost the exact same time each day when the dog was in their apartment. Thus, the trial court ruled the tenants’ admission supported a finding that the dog’s visits were “regular and reoccurring.” The tenants’ admission further supported the landlord’s claim the tenants’ materially breached the no-pet provisions of the lease and could be evicted as a result.
The appellate court agrees the landlord produced sufficient facts to support its motion for summary judgment and the trial court was correct in awarding possession to the landlord.
The appellate court agrees the main issue in this case is not whether the tenants own the dog or even whether the dog sleeps in the apartment each night. The issue before the court is whether the tenants “kept or harbored the dog.” And to prevail, the landlord merely had to prove the tenants were keeping and harboring the dog and the landlord did not have to prove who owned the dog or where the dog slept at night.
The appellate court agrees the trial court properly concluded the dog’s presence in the tenants’ apartment was “sufficiently frequent and substantial to establish that the tenants kept or harbored the dog.”
Since the facts clearly established the tenants possessed and cared for the dog everyday, the court properly ruled they “kept and harbored” the dog in violation of the lease.
The landlord also was successful in this case in having the tenants’ attorney disqualified from trying the case for them because the attorney was also the tenants’ daughter and owner of the dog. The trial court said the daughter could not act as their attorney “since it was clear that she is likely to be a key evidentiary witness at trial.”
Info: 3720 Homes Inc., Petitioner-Landlord vs. Murray Hyman and Rita Hyman, Respondents-Tenants-Appellants. 2010 N.Y. Misc
Lesson: In this case, the landlord prevailed by gathering sufficient facts to support its claim before filing the eviction action. The tenants kept their daughter’s dog on a daily basis while she worked. And when they walked the dog at the same time each day, the other tenants took notice. The landlord may not have prevailed here had it not properly documented the lease violations before giving the tenants notice to vacate based on the lease violation.
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