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Georgian Gardens v. Shields

A-004127-00T5 (N.J. Super. App. Div. 2002) (Unpublished)

LANDLORD-TENANT; EVICTION— A landlord has the burden of proving that its tenant has been served with a proper notice to quit and notice of rent increase.

A landlord sought to evict a residential tenant of twenty-five years. Its first attempt came in an action for summary dispossess based on non-payment of rent. The tenant appealed, and in this case’s first visit to the Appellate Division, the matter was remanded because “the summary dispossess trial was scheduled only eight days after [the tenant was] served with a summons and complaint” and the landlord, “by accepting rent under a new lease, waived the right to assert prior non-payment of rents as grounds for evicting [the tenant].” At the remand trial, the landlord was unable to put forth any testimony, from personal knowledge, that a notice of rent increase was ever sent to the tenant. The tenant testified that it never received a notice of rent increase. Nonetheless, the lower court again found in favor of the landlord. As to the question as to whether the tenant had received a valid notice of rent increase, the lower court believed itself bound, under the law of the case doctrine, by the recital of facts in the earlier Appellate Division decision which, in effect, said that the lower court in the first matter “on adequate evidence, found that it had been received by [the tenant].” The matter was again appealed by the tenant. On this second trip to the Appellate Division, the Court emphasized “that summary dispossess actions are statutory proceedings,” and, as such, “[a]s a matter of jurisdictional prerequisite, one of the enumerated statutory ‘good causes’ in the Anti-Eviction Act must be pleaded and established.” Under the Act, “[w]ithout a valid notice of increase the rent of a residential tenant is ineffective and the tenancy continues at the old rental term. ... A landlord has the burden of establishing that the tenant has been served with the notice to quit and notice of rent increase.” The Court held that the lower court should not have relied on the law of the case doctrine because the doctrine was not applicable. In the Appellate Division’s prior decision, the Court confined itself to the questions of service of process and waiver. The issue of whether the tenant received a valid notice of rent increase was not decided. Consequently, the matter was again remanded to the lower court, this time “to make specific findings as to whether or not a valid notice of rent increase was sent to and received by [the tenant].”


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