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Sass Corbin Management, Inc. v. Rivera

A-0140-09T1 (N.J. Super. App. Div. 2010) (Unpublished)

LANDLORD-TENANT; EVICTION — To establish a finding of habitual late payment of rent, it appears that there must be at least two late payments following a Notice to Cease but not any specific limit on the number of months that must pass before the Notice of Cease becomes ineffective or must be reissued, meaning that a determination of a tenant’s habitual conduct becomes a function of time and circumstances.

For thirty years, a tenant lived in a rent controlled apartment unit on a month to month basis. Her most recent landlord had owned the property for nine years. The landlord filed a summary dispossession complaint alleging the tenant habitually sent her rental payment after the due date, which was the first of the month. At trial, the landlord’s agent testified that his record showed the tenant’s rental payments were late throughout a sixteen month period. Notices to Cease were issued four times over the course of six months. They advised the tenant her past rental payments were late, demanded payment by the first of the month, and warned her of the possibility of eviction. The agent testified the notices were sent by certified mail and submitted the notices that were returned unclaimed. After the four notices were sent, the landlord issued a Notice to Quit indicating the most recent payment was received on the eighth day of the month, and that the tenancy was being terminated five weeks later.

The tenant testified that she always paid her rent after receiving her social security check on the third Wednesday of the month. Nevertheless, she admitted paying a late fee in some months, but asserted her rent was current. She stated she had not received the three most recent Notices to Cease as the mailboxes in her building were often broken and mail was thrown on the floor. She argued the rental payment that precipitated the Notice to Quit was indeed timely, as it was postmarked within five business days of the first of the month, and she paid the following month’s rent on the 1st of that month.

At the close of evidence, the lower court determined that the parties understood that rent was due on the first of the month, and that the tenant continued to remit her payments late after receiving that first Notice to Cease. Additionally, it held that the rent payment on the eighth of the month was late. The lower court entered judgment granting the landlord possession; however, the parties agreed to stay the judgment pending appeal. The tenant remained in the apartment and the landlord continued to accept rent payments without waiving its claim for possession.

In the appeal, the Appellate Division reversed, finding that, under New Jersey’s Anti-Eviction Act, the ground for removal of a residential tenant was when the tenant “after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.” The Court found that the Act did not specify any limit on the number of months that must pass before the Notice to Cease becomes ineffective or must be reissued, nor did it state how many late payments of rent constitute “habitual” late payment of rent under the statute. The Court said a flexible approach should be taken, meaning that a determination that the tenant’s conduct is habitual becomes a function of time and circumstances.

The Court was guided by the precedent that at least two late payments following a Notice to Cease must occur to establish a finding of habitual late payment of rent. As such, the Court held, in this particular case, that the payment the landlord considered to be late, and the one it acted upon to justify the dispossession action was actually timely. Thus, it voided the landlord’s right to dispossess and its right to relief. It also held that the rent deadline of the first of the month was extended five business days pursuant to the Senior Citizens and Disabled Protected Tenancy Act, and with the exclusion of a weekend and the first day of the event, the rental payment that was received on the eighth day of the month was, indeed, on time.


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