4 HIGHPOINT, LLC v. JOSEPH DURELLI (DC-003964-20, MERCER COUNTY AND STATEWIDE)
A-0949-20
| N.J. Super. Ct. App. Div. | Jan 12, 2022Background:
- Defendants (Joseph and Cheryl Durelli) were prior owners; mortgagee obtained a foreclosure judgment in Oct. 2018, purchased at sale, and obtained a writ of possession in Jan. 2019 but did not execute it.
- The mortgagee sold the property to plaintiff 4 Highpoint LLC in Sept. 2020; plaintiff knew the property was occupied and that Gov. Exec. Order No. 106 (EO 106) was in effect.
- Plaintiff sought to negotiate a rental or a vacate date; defendants refused, so plaintiff filed an ejectment action under N.J.S.A. 2A:35-1 to -3.
- At a bench hearing the court found defendants had not owned, rented, or had legal possession when EO 106 took effect (due to prior foreclosure/writ), and heard testimony about the property’s disrepair and defendants’ finances.
- The trial court concluded EO 106 did not protect trespassers/squatters, balanced the equities, ordered a lockout as "in the interest of justice," and a sheriff later executed the writ; defendants appealed claiming EO 106 protection and lack of jurisdiction.
- The Appellate Division held the appeal moot (moratoriums expired) and affirmed, adding that EO 106 did not apply to ejectment and that removal was proper in the interest of justice.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of EO 106 to ejectment | EO 106 protects only eviction/foreclosure tenants/homeowners, not persons without legal possession | EO 106’s moratorium bars removal of foreclosed owners/evicted tenants and thus forbids removal | EO 106 does not apply to ejectment of persons lacking legal possession (squatters); removal permitted |
| Trial court jurisdiction | Court has authority under N.J.S.A. 2A:35-1 to determine possession | Trial court "lacked jurisdiction" | Court had jurisdiction to decide possessory rights; no reversible jurisdictional defect |
| Interest-of-justice exception to EO 106 | Lockout necessary to prevent further property damage and to allow an orderly move | Defendants’ health/age and pandemic-related safety justify staying removal | Trial court properly balanced equities and found lockout warranted in the interest of justice |
| Mootness of appeal | Plaintiff: no practical relief; writ executed and moratoria expired | Defendants: seek restoration based on EO 106 protection | Appeal moot because moratoria ended and restoration would have no practical effect; affirmed |
Key Cases Cited
- Redd v. Bowman, 223 N.J. 87 (2015) (mootness doctrine: courts avoid deciding issues with no practical effect)
- Talmadge Village LLC v. Wilson, 468 N.J. Super. 514 (App. Div. 2021) (governor’s eviction moratorium does not protect persons without legal possession in ejectment proceedings)
- Perlstein v. Pearce, 12 N.J. 198 (1953) (plaintiff bears burden to establish title/possession in ejectment)
- Levin v. Lynn, 310 N.J. Super. 177 (App. Div. 1998) (court may issue writ of possession following favorable ejectment judgment)
- Seidman v. Clifton Sav. Bank, SLA, 205 N.J. 150 (2011) (standard of appellate review for bench findings)