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Matthew G. Carter Apartments v. Richardson

417 N.J. Super. 60, 8 A.3d 788 (App. Div. 2010)

LANDLORD-TENANT; SECTION 8; HABITUAL LATE PAYMENTS — Evicting a residential tenant based on habitual late payments requires a fact-sensitive inquiry into the tenant’s conduct after he or she received a notice to cease; for example, late payment of rent by a tenant two times within a few months after receipt of a notice might support eviction, but where a tenant is late only a total of ten days within an eleven-month period, it would not.

A landlord rented an apartment to a tenant who was receiving rental assistance payments through the Section 8 program of the U.S. Department of Housing and Urban Development (HUD). The lease provided that the rent was deemed to be late if not paid by the tenth day of each month. After the tenant paid rent late several times, her landlord served the tenant with a notice to cease. After receiving the notice, the tenant paid her rent on time for the next four months, but was eight days late in making the next payment. The landlord then served the tenant with a notice of her first violation of the notice to cease. She paid on time the next month, but was two days late in paying the following month. The landlord then served the tenant with a notice to quit and refused to accepted any further rent payments. The tenant then paid the rent to her attorney in escrow.

The landlord sued to evict the tenant based on her habitual late payment of rent. The lower granted a judgment of possession in the landlord’s favor. A stay of the eviction was granted while the tenant appealed, but before the appeal was heard, the tenant voluntarily vacated the premises. The tenant’s attorney proposed dismissing the appeal if the landlord would agree to vacate the judgment for possession, but the landlord would not agree to do so unless the tenant reimbursed its legal fees. The tenant refused.

On appeal, the tenant argued that she should not have been evicted because she did not “habitually” pay her rent late. The landlord argued that the appeal was moot because the tenant had voluntarily vacated the premises. The Court found that the appeal was not moot even though the tenant vacated voluntarily because there were ramifications for the tenant if the judgment for possession was upheld. The Court noted that the tenant’s eligibility for continued Section 8 rental payment assistance at her new residence was at risk if she had been evicted from her prior residence. It then analyzed the legislature’s intent in providing the landlord with the ability to evict a tenant for habitual late payment of rent. The Court found that the legislature did not intend to evict a tenant for habitual late payment solely because a tenant had made a second late payment after receiving a notice to cease. Instead of determining habitual late payments in such a mechanical fashion, a landlord must demonstrate that the tenant engaged in a continued course of conduct over a period of time. In this case, the Court could not conclude that the tenant was habitually late in paying rent. It noted that after the tenant was served with a notice to cease, she paid the rent timely in nine out of the following eleven months. In the two months in which she paid late, once she was eight days late and the other time she was two days late. Based on these circumstances, she was not habitually late even though she paid late twice after receiving a notice to cease.

The Court also noted that each eviction trial for habitual late payment requires a fact-sensitive inquiry into the tenant’s conduct after he or she received a notice to cease. It is possible that, based on the circumstances of a particular case, late payment of rent by a tenant two times after receipt of a notice to cease would constitute habitual late payment and might justify eviction even within a few months after service of a notice to cease. However, in this case, where the tenant was late a total of only ten days within an eleven-month period, the Court did not find her to be habitually late in payment of rent. It therefore reversed and vacated the judgment for possession.


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