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Finesse Enterprises, Inc. v. Leyva

A-1699-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

LEASES; NOTICES — Even though a landlord and tenant may correspond with each other without following the specific notice requirements in their lease, this does not mean that either party has waived the obligation to the other to send notices, such as lease renewal notices, strictly in accordance with an express notice provision in their lease.

A lease specified that any required notices had to be sent certified mail, return receipt requested. The landlord’s attorney wrote to its tenant’s attorney, stating that the tenant had not timely renewed the lease and, as a consequence, had become a month-to-month tenant. The tenant responded by certified mail, return receipt requested, that it had, in fact, exercised the option to renew at an earlier time. It enclosed a copy of a year-old letter which purported to exercise the option to renew. The copied letter was on the tenant’s letterhead and was addressed to the landlord’s home address, but without showing the landlord’s name. It was not sent by certified mail, return receipt requested. The landlord began a summary dispossess action.

The lower court held that the tenant had validly exercised its right to renew the lease for a five-year term, despite not notifying its landlord of this decision by certified mail, return receipt requested as required in the lease. The lower court accepted the tenant’s argument that there was a course of dealing between the parties under which they did not utilize certified mail, return receipt requested to correspond with one another and that the landlord therefore had waived the requirement.

On the landlord’s appeal, the Appellate Division found the lower court’s decision to be erroneous. First, the Court noted that the lease did not require all correspondence to be conducted by certified mail, return receipt requested, only certain notices. Importantly, the parties had never notified each other prior to the notice in question. Therefore, it was impossible for a waiver to have been established. Additionally, the lease itself contained a no-waiver clause. Thus, the Court reversed the lower court’s order.

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