                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3736-17T4

JOE RAINER,

          Plaintiff-Respondent,

v.

MICHAEL BARTLOW,

          Defendant-Appellant.


                   Argued March 4, 2019 – Decided March 26, 2019

                   Before Judges Fasciale and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Burlington County, Docket No. SC-001440-
                   17.

                   Joseph M. Pinto argued the cause for appellant (Polino
                   and Pinto, PC, attorneys; Joseph M. Pinto, on the brief).

                   Joe Rainer, respondent, argued the cause pro se.

PER CURIAM

          This appeal has its genesis in a one-year residential lease agreement. On

September 10, 2011, plaintiff Joseph Rainer rented an apartment to defendant
Michael Bartlow, defendant's daughter, Nicole Bartlow, and her boyfriend,

Matthew Dae in Delanco. Defendant never resided at the premises. In fact,

paragraph twenty-six of the lease agreement restricted occupancy of the

premises to "Matthew and Aiden ONLY." 1

       Defendant paid the security deposit and the first month's rent. When

Nicole and Matthew fell behind in their rent payments, plaintiff sent

correspondence to the couple at the premises, with a copy addressed to defendant

at his own residence. Plaintiff introduced eighteen past-due letters into evidence

at trial. Other than making two rent payments in December 2011 and January

2012, defendant tendered no other payments to plaintiff. Notably, defendant did

not sign a separate guaranty contract, promising to be liable for the rent.

       After the lease expired on September 14, 2012, Nicole and Matthew

remained in the premises and plaintiff accepted their rent payments, thereby

establishing a month-to-month tenancy. 2 In 2016 and 2017, plaintiff sent lease



1
   Because two of the parties share the same last name, we use first names to
avoid confusion. We intend no disrespect in doing so. Further, Aiden is the son
of Matthew and Nicole. Apparently, the lease agreement inadvertently omitted
Nicole's name from paragraph twenty-six. That omission is not an issue in this
matter.
2
    See N.J.S.A. 46:8-10, which provides:


                                                                              A-3736-17T4
                                        2
extension agreement addenda to Nicole and Matthew, raising the monthly rent

from $900 to $925 and $975, respectively. The cover letter enclosing the 2017

addendum was addressed to Nicole and Matthew, and indicated that a copy of

the letter was sent to defendant at his home address. 3 Although Nicole and

Matthew paid the rent increases, neither they nor defendant executed the

addenda.

        Eventually, Nicole and Matthew stopped paying rent. Despite affording

the couple numerous attempts to pay the rent arrears, plaintiff ultimately

instituted eviction proceedings and was granted a judgment of possession on

October 17, 2017.

        Thereafter, plaintiff filed a small claims complaint against defendant,

alleging that as the "co-signer" of the lease, defendant was responsible "for back

rent . . . late charges and court fees . . . for various dates from February 2016




              Whenever a tenant whose original term of leasing shall
              be for a period of one month or longer shall hold over
              or remain in possession of the demised premises
              beyond the term of the letting, the tenancy created by
              or resulting from acceptance of rent by the landlord
              shall be a tenancy from month to month in the absence
              of any agreement to the contrary.
3
    The cover letter for the 2016 lease extension was not provided on appeal.
                                                                          A-3736-17T4
                                        3
t[o] September 15, 2017." A non-jury trial was held on November 30, 2017.

Plaintiff was self-represented at the trial; defendant was represented by counsel.

        At the conclusion of plaintiff's case, defendant moved to dismiss the

action pursuant to Rule 4:37-2, arguing he never lived in the premises and, as

such, he "did n[o]t hold over and . . . did not remain in possession" of the

premises. Defendant further contended "[h]e signed on as a tenant, not as a

guarantor" for the one-year lease term. Denying the motion, the trial court

stated, without elaborating, it "[considered] all the evidence in favor of . . .

plaintiff." See Dolson v. Anastasia, 55 N.J. 2, 5 (1969); Godfrey v. Princeton

Theological Seminary, 196 N.J. 178, 197 (2008) ("A motion for involuntary

dismissal only should be granted where no rational [factfinder] could conclude

that the plaintiff marshaled sufficient evidence to satisfy each prima facie

element of a cause of action.").

        Defendant did not testify nor call any witnesses. Instead, he moved for a

directed verdict pursuant to Rule 4:40-1,4 which the court also denied. After

engaging in an extended colloquy with defense counsel, the court ultimately

denied the motion and awarded plaintiff $3000, representing the jurisdictional

amount claimed. In doing so, the court briefly stated:


4
    See also R. 6:5-1 (applying Rules 4:37 and 4:40 to the Special Civil Part).
                                                                           A-3736-17T4
                                         4
            What I have is the testimony of . . . plaintiff who
            testified that he felt that the lease continued on a month-
            to-month basis with the three people who are on the
            original lease. I do n[o]t see any way or any place
            where I can find that . . . defendant was dropped from
            the lease.

      Following oral argument on March 26, 2018, the trial court denied

defendant's ensuing motion for reconsideration. In sum, the court reiterated that

because "defendant was listed as a tenant" on the initial lease agreement, he

remained a tenant when Nicole and Matthew stayed in the premises at the

expiration of the lease term. This appeal followed.

      The sole issue raised on appeal is whether defendant was obligated for

Nicole and Matthew's rent arrears, five to six years after the written lease

expired. Defendant argues his obligations as a tenant ended when the lease

expired on September 14, 2012. He further contends "the court made a contract

of guaranty out of a lease which had expired five years before default in payment

of rent by defendant's daughter and her boyfriend."         Among other things,

plaintiff counters defendant "was the financially responsible party to th[e]

lease."   Plaintiff also claims defendant was a holdover tenant pursuant to

N.J.S.A. 46:8-10 and therefore was liable for the rent arrears. For the reasons

that follow, we reverse the trial court's judgment.



                                                                          A-3736-17T4
                                        5
      Our review is guided by well-established contract principles, recognizing

that while we defer to the trial court's fact-finding following a bench trial, our

review of its legal determinations is de novo. D'Agostino v. Maldonado, 216

N.J. 168, 182 (2013).

      "Under New Jersey law a lease is like any other written contract."

Ringwood Assocs., Ltd. v. Jack's of Route 23, Inc., 153 N.J. Super. 294, 309

(Law Div. 1977), aff'd, 166 N.J. Super. 36 (App. Div. 1979); see also Cohen v.

Wozniak, 16 N.J. Super. 510, 512 (Ch. Div. 1951). Courts should read contracts

"as a whole in a fair and common sense manner[,]" and enforce them "based on

the intent of the parties, the express terms of the contract, surrounding

circumstances and the underlying purpose of the contract."           Manahawkin

Convalescent v. O'Neill, 217 N.J. 99, 118 (2014) (citation omitted).

      The language of the contract, by itself, must determine the agreement's

force and effect if it is plain and capable of legal construction. Ibid. However,

"[e]ven in the interpretation of an unambiguous contract, [the court] may

consider 'all of the relevant evidence that will assist in determining [its] intent

and meaning.'" Ibid. (third alteration in original) (quoting Conway v. 287 Corp.

Ctr. Assocs., 187 N.J. 259, 269 (2006)); see also Driscoll Constr. Co. v. State,

Dep't of Transp., 371 N.J. Super. 304, 316 (App. Div. 2004) (noting that even


                                                                           A-3736-17T4
                                         6
when an integrated contract is free from ambiguity, "evidence of the situation of

the parties and the surrounding circumstances and conditions is admissible in

aid of interpretation").

      Here, defendant signed the lease agreement, but he was not listed as an

occupant of the premises pursuant to paragraph twenty-six of the agreement.

Indeed, the parties agree they never intended for defendant to occupy the

premises. As plaintiff acknowledged on cross-examination:

             [DEFENSE COUNSEL:] . . . [A]t the time this initial
             lease was signed, you knew [defendant] was not going
             to reside in the property, correct?

             [PLAINTIFF:] Yes.

                   ....

             [DEFENSE COUNSEL:] . . . And, in fact, [defendant]
             never lived in this property, right?

             [PLAINTIFF:] True.

             [DEFENSE COUNSEL:]                And when you sent
             [defendant] the [past due] letters, you never [really]
             sent him them . . . directly, you just [copied] him on the
             bottom [of the letters] and you sent those letters not to
             the address in which Nicole . . . and Matthew . . . were
             living, rather you sent the letters to [defendant]'s home
             in Delanco at a different address, correct?

             [PLAINTIFF:]       Yes.

      During his redirect testimony, plaintiff elaborated (emphasis added):

                                                                          A-3736-17T4
                                         7
            [T]he lease was signed by [defendant], knowing that he
            was n[o]t going to live there. He was financially going
            to back his daughter and that is the reason I entered into
            the lease with them. . . . When they would fall behind
            in rent and [defendant] would get a letter, then the rent
            would come back, you know, I would get paid. So I
            assume[d] that [defendant] was seeing the letters and
            responding.

Plaintiff did not, however, present any evidence that defendant actually paid the

rent after the initial lease expired. Defendant's payments were limited to the

first month's rent and four consecutive months thereafter. 5

      Plaintiff's testimony underscores the intent of the parties: defendant co -

signed the lease agreement, not as an occupying tenant, but rather as a purported

guarantor. Although defendant argued before the trial court that he executed the

lease agreement as a tenant and not as a guarantor, the terms of the lease

agreement prevented his occupancy. Rather, it is undisputed that defendant's

role was to assure his daughter and her boyfriend paid the rent during the one -

year lease term.

      Contrary to well-established settled authority, however, the parties did not

execute a guaranty agreement memorializing their intention. See Peoples Nat'l



5
  Defendant failed to include copies of the checks in his appendix, but they were
provided at our request after oral argument.
                                                                          A-3736-17T4
                                        8
Bank v. Fowler, 73 N.J. 88, 101 (1977) ("It has long been settled law that a

[guaranty] is chargeable only according to the strict terms of its undertaking and

its obligation cannot and should not be extended either by implication or by

construction beyond the confines of its contract."). Further, pursuant to the

statute of frauds, "[a] promise to be liable for the obligation of another person,

in order to be enforceable, shall be in a writing signed by the person assuming

the liability . . . ." N.J.S.A. 25:1-15.

      In the present matter, when the parties executed the lease agreement in

September 2011, they intended for Nicole and Matthew to occupy the premises

and defendant, as co-signer, to guaranty the rent for the duration of the lease

agreement. Because the rent arrears at issue do not include the first year's rent,

we need not reach the propriety of that arrangement. Nonetheless, we conclude

defendant's obligation, if any, terminated when the lease agreement expired. If

plaintiff specifically wanted defendant to be personally liable for the rent as a

guarantor beyond the expiration of the lease agreement, plaintiff should have

required defendant to sign a guaranty agreement. In the absence of a signed

writing evidencing defendant's intent to guarantee the rent, we conclude he was

not liable for the rent arrears accrued in 2016 and 2017.




                                                                          A-3736-17T4
                                           9
      Moreover, because defendant was not permitted to occupy the premises

pursuant to the terms of the lease agreement, he did not become a holdover

tenant at the expiration of that agreement, notwithstanding that Nicole and

Matthew continued to reside in the premises and pay rent. A "holdover tenant"

is generally defined as "[s]omeone who remains in possession of real property

after a previous tenancy . . . expires . . . ." Holdover Tenant, Black's Law

Dictionary (10th ed. 2014); see also J.M.J. New Jersey Props., Inc. v. Khuzam,

365 N.J. Super. 325, 333-34 (App. Div. 2004); Newark Park Plaza Assocs., Ltd.

v. City of Newark, 227 N.J. Super. 496, 499 (Law Div. 1987) ("It is well-settled

law in New Jersey that when a tenant continues to occupy a premises after the

termination of a lease, his status becomes that of a month-to-month holdover

tenant."). Because defendant was not permitted to occupy the premises, we find

he did not "hold over" within the meaning of N.J.S.A. 46:8-10.

      Reversed.




                                                                        A-3736-17T4
                                      10
