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Eviction granted based on habitual hardship 2714 SUMMIT AVE., L.L.C. v ELSA JIMENEZ,

Eviction granted based on habitual hardship 2714 SUMMIT AVE., L.L.C. v ELSA JIMENEZ,



DOCKET NO. A-2413-09T1

Submitted May 17, 2011 - Decided

Before Judges Payne and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-16562-09.

Defendant Elsa Jimenez appeals from a judgment for possession granted to her landlord, plaintiff 2714 Summit Ave., L.L.C., premised on her habitual late payment of rent. N.J.S.A. 2A:18-61.1(j). We affirm.

Plaintiff owns property located at 2714 Summit Avenue in Union City, where defendant has been a month-to-month tenant on an oral lease since June 7, 1994. Plaintiff acquired the property from the prior owner at an unspecified point in time after defendant's tenancy began.

On November 2, 2009, plaintiff filed a summary dispossess complaint alleging defendant habitually remitted rental payments after the due date, which was the first of the month. At trial, plaintiff's agent, Esther Kaplan, testified that plaintiff's records showed defendant's rental payments were late in each of the preceding eight months. Notices to cease were issued on December 23, 2008, February 11, 2009 and April 8, 2009, each advising defendant that her past rental payments were late. Indeed, the April 8, 2009 notice to cease specified that neither the March nor April 2009 rent had yet been received as of the date the third notice to cease was issued. Each of the notices advised defendant that her past rental payments were late, demanded payment by the first day of the month, and warned defendant that she faced eviction if she did not comply.[1] Kaplan testified that all three notices to cease were sent by first-class and certified mail. She explained that each of the certified mail cards had come back to her signed by defendant. All three were received in evidence.

On August 28, 2009, plaintiff served a notice to quit upon defendant, advising her that she had disregarded the three earlier Notices to Cease. The Notice demanded that she vacate the apartment.

Defendant testified. She insisted that because she had moved into the apartment on the seventh day of the month, namely June 7, 1994, her prior landlord had agreed that her monthly rental payments would not be due until the seventh day of each succeeding month. She denied that any of her monthly rent payments were paid any later than that.

At the close of the evidence, the judge made his findings, concluding that, despite the lack of a written lease, the parties understood that rent was due on the first day of the month. He expressly rejected defendant's claims to the contrary. The judge observed that even if he were to accept defendant's version of when her rent was due, on the seventh day of the month, she paid the November 2008 rent significantly later, on November 13. The judge also noted that from January 2009 through April 2009, the situation deteriorated to the point where "the problem became almost unresolvable because thereafter every payment was virtually one month late." Additionally, the February 2009 check did not clear and therefore defendant's late payments persisted even after the third notice to cease was issued.

After finding that plaintiff had met all the applicable jurisdictional requirements, the judge determined that defendant had engaged in a pattern of "habitual late payment of rent" and the late payments continued despite the service upon defendant of the requisite Notices to Cease. The judge granted plaintiff a judgment for possession, and stayed the judgment pending appeal.

On appeal, plaintiff raises a single claim:


New Jersey's Anti-Eviction Act (Act), N.J.S.A. 2A:18-61.1 to -61.21, provides that no tenant may be removed from premises leased for residential purposes unless good cause is established. N.J.S.A. 2A:18-61.1. "The Act reflects a public policy barring dispossess actions except upon strict compliance with the notice and procedural requirements of the Act." 224 Jefferson St. Condo. Ass'n v. Paige, 346 N.J. Super. 379, 383 (App. Div.), certif. denied, 172 N.J. 179 (2002). "We have defined 'strict compliance' as 'punctilious' compliance with all of the Act's provisions, including the notice provisions." Ibid. As pertinent to this appeal, the Act authorizes eviction when the tenant, "after written notice to cease," has "habitually and without legal justification failed to pay rent which is due and owing." N.J.S.A. 2A:18-61.1(j). The landlord bears the burden of proving when the rent was due, when it was received, and that the statutory notices, required by N.J.S.A. 2A:18-61.2, were properly served upon the tenant.

Notice of the intended action is essential to the landlord obtaining a judgment of possession. First, a notice to cease must be sent providing a tenant with notice of the offending conduct and an opportunity to alter that conduct. RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709-10 (App. Div. 1988). Second, if the tenant does not cease the late payments, a notice to quit is mailed informing the tenant that the tenancy has been terminated and explaining the basis of the termination, thereby requiring the tenant to vacate the premises. See Carteret Props. v. Variety Donuts, Inc., 49 N.J. 116, 123 (1967). The Notice to Quit must "specify in detail the cause of the termination of the tenancy." N.J.S.A. 2A:18-61.2.

Accordingly, a landlord's failure to comply with the notice requirements negates the salutary purpose of the Act, precluding entry of judgment in favor of the landlord. Paige, supra, 346 N.J. Super. at 383-84. Because the Act "does not specify any limit on the number of months that must pass before the Notice to Cease becomes ineffective or must be reissued, nor does it state how many late payments of rent constitute 'habitual' late payment of rent under the statute[,]" the Court has instructed judges to apply "a flexible[,]" rather than a strict, time period so that a determination that the tenant's conduct is "habitual" becomes "a function of time and circumstances." A.P. Dev. Corp. v. Band, 113 N.J. 485, 495-96 (1988).

Applying the requirements of the Act, we are satisfied that the judge's findings of fact are well supported by evidence in the record and that his conclusions of law are unassailable. Plaintiff established an entitlement to a judgment for possession based upon defendant's habitual late payment of rent.

On appeal, plaintiff does not quarrel with the judge's findings on that subject. Instead, she advances a claim never presented in the Law Division, namely, she maintains that plaintiff never served her with notices to cease and therefore the court lacked jurisdiction to enter the judgment for possession. As we have noted, all three of the notices to cease were received in evidence by the judge at trial and the judge made a specific finding that all three had been properly served upon defendant. The notice to quit was also received in evidence. At no time did defendant deny receiving the notices to cease or the notice to quit. As defendant had the opportunity to raise the jurisdictional issue before the Law Division, but chose not to do so, we decline to consider this issue, raised for the first time on appeal. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (observing, with exceptions not relevant here, that an appellate court will decline to consider an issue raised on appeal that was not presented to the trial court when an opportunity to do so existed).

The judgment for possession is affirmed. Remanded to the Law Division to vacate the stay of judgment.

[1] The December 23, 2008 notice specified that the September 2008 rent was paid on September 6, the October rent on October 7, the November rent on November 13 and the December rent on December 6, 2008. The February 11, 2009 notice stated that the January 2009 rent was paid on January 7 and the February rent had not been received as of February 11, 2009. The April 8, 2009 notice specified that the February 2009 rent was paid on March 2, 2009 and that the March and April 2009 rent had not been paid as of April 8, 2009.

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