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Nassau Development III, L.P. v. Greenberg

A-1843-98T3 (N.J. Super. App. Div. 2000) (Unpublished)

LANDLORD-TENANT; EVICTION—Rent payments made after a lease is terminated will not restore the lease in the face of an effective non-waiver provision and the lease renewal provision is therefore void, but eviction thereafter requires a notice to quit.

A tenant occupied premises pursuant to a written five year lease. The lease had a rider which permitted the tenant to renew for an additional ten years. Further, the lease required that rent be paid on the first day of each month and failure to do so would be a material default under the lease. Another provision of the lease permitted the landlord to terminate the lease following a material default by the tenant. This termination could be made by giving the tenant ten days’ notice of the landlord’s intention to terminate the lease. Lastly, the lease stated that acceptance of rent after a default did not constitute a waiver of the default. Starting about two and one-half years into the initial lease term, the tenant habitually paid the rent late despite repeated notices from its landlord. As a result, the landlord sent a notice to its tenant that “your lease as to the above premises is hereby terminated effective immediately for failure to pay rent when due.” It then sent a notice instructing the tenant to quit the premises or be a holdover tenant. The tenant did not vacate the premises, but instead sent a letter to the landlord purporting to exercise its lease renewal option. The landlord then filed a series of summary dispossess actions, but the lower court dismissed its complaint, holding that its acceptance of rent payments subsequent to the late payments constituted a waiver of any default. The Appellate Division disagreed because the lease specifically provided that acceptance of rent after a breach was not to be construed as, or deemed to be, a waiver. Therefore, the Appellate Division found that the lease was terminated upon the sending of the landlord’s initial letter and that the tenant was a month-to-month tenant thereafter. Several months later, the landlord sought to terminate the month-to-month tenancy and a second lower court judge dismissed that complaint on the grounds that an earlier lower court judge had found that there had been a waiver of the notice to quit. Consequently, the second lower court judgment ruled that the option was validly exercised. Here, the Appellate Division disagreed. It found the lease was terminated by the initial letter which was sent before the option was purportedly exercised. Consequently, the option could not have been exercised and the landlord became entitled to possession of the property upon its proper termination of the month-to-month tenancy.


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