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2714 Summit Ave., L.L.C. v. Jimenez

A-2413-09T1 (N.J. Super. App. Div. 2011) (Unpublished)

LANDLORD-TENANT; EVICTION — Where a court finds that a residential tenant is habitually late in making rent payments and the landlord has complied with all of the requirements of the Anti-Eviction Act, the landlord is entitled to evict its tenant.

A landlord sought to evict its residential tenant on the grounds that its tenant habitually remitted rental payments after their due date, the first of the month. At trial, the landlord offered testimony showing that the tenant’s rental payments were late in each of the preceding eight months. Three separate notices to cease were issued, each advising the tenant that her rental payments were late. Each warned the tenant that she faced eviction if she did not start paying on time. Each was sent by certified mail.

The tenant testified that because she had moved into the apartment on the seventh day of the month, her prior landlord had agreed that her monthly rental payments would not be due until the seventh day of each succeeding month. She claimed that all of her monthly rent payments had been paid by the seventh. The lower court found that despite the absence of a written lease, the parties understood that rent was due on the first day of the month. In doing so, it expressly rejected the tenant’s contrary claims. The lower court further noted that the tenant once paid rent on the thirteenth and, as the tenancy evolved, she eventually ran behind by a full month.

On appeal, the tenant argued that the landlord never served her with notices to cease and therefore the court lacked jurisdiction to enter the judgment for possession. However, the lower court had taken three notices to cease into evidence and made a finding that each had been properly served on the tenant. Because the tenant did not raise this issue during trial, the Appellate Division affirmed the lower court’s decision and declined to consider the new issue on appeal.

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