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When is an Adjoining Landowner Considered to be “Commercial” for Purposes of Imposing Liability for a Fall on a Public Sidewalk Under New Jersey Law?

By on January 26, 2018 in Liability with 0 Comments

Last week, I reviewed the general case law as to the imposition of liability of an adjoining property owner for a fall on a public sidewalk. However, to determine the obligation of the adjoining landowner (a landowner whose property abuts a public sidewalk), the key is whether the property owner qualifies as a “residential” or “commercial” landowner. Typically, an adjoining “residential” landowner will be immune from liability for an injury from a fall on a public sidewalk, while an adjoining “commercial” landowner will be subject to liability. But, when is the landowner considered to be “residential” and when is the landowner considered to be “commercial”? As they say, “the devil is in the details.”

There are numerous cases that deal with this topic. While a residential home that is owner occupied is obviously residential and a commercial business or an investment property are obviously commercial, there are many grey areas.  Commonly accepted definitions of commercial and residential property should apply to most cases. The court can usually decide this issue based upon the nature of the ownership.

However, the court does look at the use of the property. The central theme is whether the predominant use has the capacity to generate income, regardless of whether an actual profit is realized. The rationale for distinguishing commercial landowners from residential ones are that commercial owners are able to spread the cost to maintain the sidewalk to their customers. It is just the cost of doing business. Luchejko v. City of Hoboken, 207 N.J. 191 (2011).

I have compiled a list of the published cases that deal with this topic. I expect you will find some surprises as to what the courts have considered to be residential versus commercial:



Hambright v. Yglesias, 200 N.J. Super. 392 (App. Div. 1985) – Two family house entirely rented out by owner for profit was “commercial.”

Lombardi v.  First United Methodist Church, 200 N.J. Super. 646 (App. Div.), certif. denied, 101 N.J. 315 (1985) – Property exclusively used for church purposes not commercial.

Avallone v. Mortimer, 252 N.J. Super. 434 (App. Div. 1991) – Where residential property is partially owner-occupied and partially rented, considered residential for owner-occupant whose residency is established to be predominant use.

Borges v. Hamed, 247 N.J. Super. 295 (App. Div. 1991) – Multi-family home partially occupied by owner and partially rented to relatives was not “commercial.”

Wasserman v. W.R. Grace & Co., 281 N.J. Super. 34 (App. Div. 1995) – Residential owner who used one room as telecommuting office was not “commercial” owner.

Abraham v. Gupta, 281 N.J. Super., 81 (App. Div.), certif. denied, 142 N.J. 455 (1995) – Vacant lot unrelated to business enterprise not commercial.

Briglia v. Mondrian Mortgage Corp., 304 N.J. Super. 77 (App. Div.), certif. denied, 152 N.J. 13 (1997) – Residential home not commercial merely because mortgagee had foreclosed and held it at time of accident.t

Smith v. Young, 300 N.J. Super. 82 (App. Div. 1997) – House owned by two (2) different parties, one side owner-occupied and the other rented considered residential.

Wright v. Rappisi, No. A-3406-99T3 (App. Div. Feb. 1, 2001) – Small chiropractic office in home not make property commercial.

Dupree v. City of Clifton, 351 N.J. Super. 237 (App. Div. 2002), aff’d, 175 N.J. 449 (2003) – Nonprofit church using its property solely for religious and noncommercial purposes not considered “commercial.”

Luchejko v. City of Hoboken, 207 N.J. 191 (2011) – Condominium complex and its property manager is residential.



Christmas v. City of Newark, 216 N.J. Super. 393 (App. Div.), certif. denied, 108 N.J. 193 (1987) – Church property leased to donut shop would be commercial.

Gilhooly v. Zeta PSI Fraternity, 243 N.J. Super. 201 (Law Div. 1990) – Fraternity house which served as residence and social club is “commercial.”

Restivo v. Church of St. Joseph of Palisades, 306 N.J. Super. 456 (App. Div. 1997), certif. denied, 153 N.J. 402 (1998) – Church landlord that leased to nonprofit and poor residents, despite low rents, considered commercial.

Brown v. Saint Venantius School, 111 N.J. 325 (1988) – Private, religious school considered commercial – even though nonprofit.

Wilson v. Jacobs, 334 N.J. Super. 640 (App. Div. 2000)  – Non-owner occupied house entirely rented to tenant was commercial, even though tenant was family member whose “rent” consisted of paying mortgage, taxes and performing small repairs.



Grijalba v. Floro, 431 N.J. Super. 57  (App. Div. 2013) – Three family home, with one unit owner-occupied – will depend upon nature of ownership and predominant use of property.

As is apparent from a review of the above court holdings, it is not always obvious as to how the court will rule on the classification of the adjoining property owner. However, it is key to determining potential liability for an injury that occurs due to a fall on a public sidewalk.


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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.


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