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Boeri v. Allen

A-4358-03T5 (N.J. Super. App. Div. 2005) (Unpublished)

LANDLORD-TENANT—A landlord who accepts late rent payments without asserting the late rent penalty and who fails to ask for tax increases during a tenant’s occupancy waives its right to collect either.

Tenants signed a one-year lease. It provided for a late payment penalty. The lease also required the tenants to pay, as additional rent, any increase in annual real estate taxes. On one occasion during the tenant’s tenancy, the landlord increased the monthly rent to cover an increase in real estate taxes. The tenants paid the increase without objection. The landlord also accepted late rent payments without insisting on the late penalty. When the tenants told the landlord that they were moving out, the landlord refused to return their entire security deposit. The landlord made deductions for previously unclaimed late fees and for real estate tax increases that he never charged the tenants for. The tenants sued.

The lower court disallowed the deductions for the tax increases and the late fees. On appeal, the Appellate Division held that by failing to serve the tenants with timely notice, the landlord waived his rights to demand additional rent for increases in the real estate taxes. Furthermore, the Court held that by repeatedly accepting late rental payments without timely demanding a late fee, the landlord also waived his right to collect the late fees.

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