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ORCA 4521 Cottage, LLC v. Hernandez

A-1637-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

LANDLORD-TENANT; EVICTION; NOTICE — A landlord’s acceptance of rent without notifying the tenant that its acceptance of the rent did not void its right to rely on a prior notice to cease essentially invalidates the prior notice.

A tenant had a history of making late rent payments. Her landlord sent numerous Notices to Cease, as required by statute. The tenant made a payment in February for January’s rent, but did not pay her February rent. The landlord filed an eviction action based upon that non-payment of rent. The tenant then paid February’s rent in March, but did not pay the March rent. The landlord refused to dismiss the pending action.

The tenant failed to appear in court and was evicted by default. The default was later vacated, and the matter was resolved by the payment of all rent due through April. The tenant paid May’s rent in June. The landlord served a Notice to Quit at the end of June. An eviction lawsuit based upon habitual late payment was filed at the end of September.

At trial in October, the lower court questioned whether the landlord’s acceptance of rent without notifying the tenant that accepting the rent would not void the prior Notice to Cease. The landlord argued that the intervening action for possession based upon non-payment, though unsuccessful, put the tenant on notice that the landlord was not waiving its rights to pursue its claim for habitual lateness by acceptance of late rent. The lower court rejected the landlord’s argument.

In its appeal to the Appellate Division, the landlord argued that the lower court erred in holding that it was required to give specific notice to the tenant that its acceptance of rental payments between the last Notice to Cease and the Notice to Quit were without prejudice to its right to pursue eviction for late payment. It also argued that the lower court erred in raising the issue sua sponte.

The Court dismissed the appeal as being without merit, noting that the tenant had paid all rent allegedly unpaid to resolve the eviction action, and received no further notices to cease prior to the Notice to Quit. Also, the Court found no error in the lower court’s introduction of the issue of waiver with a pro se party.

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