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Housing Authority v. Caldwell

Decided: February 4, 1991.

HOUSING AUTHORITY OF THE CITY OF NEWARK, PLAINTIFF,
v.
ELLEN CALDWELL, DEFENDANT



Fast, J.s.c.

Fast

This was an action for the summary dispossession of defendant-tenant pursuant to N.J.S.A. 2A:18-61.1e, based upon an alleged substantial breach of lease. This opinion addresses the effect of a notice to quit with demand for possession that provided the tenant with a period to vacate which was shorter than the period required by N.J.S.A. 2A:18-61.2b. This opinion distinguishes cases with a notice with the proper period but terminating the tenancy other than on an anniversary date of the lease. I find a substantial difference, with a different conclusion. I also believe that this distinction has not been reported in New Jersey.

On September 28, 1990, plaintiff served defendant with a notice to cease. It alleged in essence that defendant had been "overcrowding" her apartment with an excessive number of people, contrary to the terms of her written lease agreement, and that failure to cease that conduct would result in a Notice to Quit and termination of her tenancy. I find that the notice gave defendant a clear and reasonable warning, A.P. Development Corp. v. Band, 113 N.J. 485, 496, 550 A.2d 1220 (1988), pursuant to N.J.S.A. 2A:18-61.1e, and was properly served.

Plaintiff proved that the Notice to Quit was served on November 27, 1990. It was served properly, but gave defendant less than one month notice of the termination of the tenancy

and for delivery of possession. The subject ground for eviction requires a one month notice of termination and demand for possession. N.J.S.A. 2A:18-61.2b. The subject complaint was filed less than one month after service of the Notice to Quit. [The complaint actually alleged two grounds for termination of the tenancy; one was the breach of the lease, and the other was alleged disorderly conduct. However, the Notice to Quit did not specify any disorderly conduct, and the matter proceeded on only the allegation of substantial breach of lease.]

Upon receipt of the Notice to Quit in evidence, I sua sponte raised the question of jurisdiction because of the "short period" in the notice and thereupon determined that the finding in Harry's Village, Inc. v. Egg Harbor Tp., 89 N.J. 576, 446 A.2d 862 (1982) was not applicable. That case read a Notice to Quit (with raise in rent) as having a deferred efficacy so as to be effective on the next anniversary date of the lease, but at least one month from the date of service on defendant. Harry's Village said, specifically:

"In this case, the active participation of the tenants association, represented at all times by counsel, renders overly protective the common law requirement that a notice to quit must state that the tenant quit the premises on the precise renewal date. We conclude that, where a landlord has substantially complied with the requirements of a notice to quit and inadvertently failed to give notice on the precise anniversary date, a notice to quit may be effective on the next anniversary date after receipt of the notice. Although the next ensuing anniversary date is more than one rental period later, that result is both fair and reasonable. . . .

"Applying that principle to the facts of this case, the notice given by Harry's Village on May 24 to its tenants demanded possession on June 27. The next ensuing anniversary date 30 days after receipt of the notice was July 1. Accordingly, the rent increase granted by the Board became effective on that date." Id. at page 587, 446 A.2d 862.

The critical differences between the two cases are that 1) the notice given in Harry's Village was of at least the required period (but with an erroneous termination date), and 2) the ground for termination was not one which alleged some "fault" on the part of the tenant.

The period in this case, as noted above, and the filing of the complaint, were less than the statutorily required one month period. All of the subsections in N.J.S.A. 2A:18-61.2, imposing time periods for a Notice to Quit, actually refer not to the time periods of the Notice to Quit, but rather to the time periods "prior to the institution of the action." The significance is that filing a complaint before the expiration of the required period means that the cause of action has not yet accrued. The consequence is that the court has no jurisdiction to act in a summary dispossess action. (Contrast this with the equitable powers of a court of Chancery in a plenary action to require a tenant to commence removal before the stated expiration date in a lease, Union Minerals v. Port Realty, 129 N.J. Super. 41, 322 A.2d 192 (Ch.Div.1974).)

As to the second difference, the ground for eviction, it may be noted that not all of the 14 subsections in N.J.S.A. 2A:18-61.1 requiring the service of a Notice to Quit, result from alleged "fault" on the part of the tenant. Specifically, subsections g (compliance with various governmental conditions), h (permanent retirement of the unit from residential use), i (failure to accept proposed reasonable lease changes), k (certain conversions to condominium or cooperative form of ownership), and l (personal occupancy by the owner -- or a purchaser -- of certain units), require no "fault" on the part of the tenant. While I note that subsection f, failure to pay an increase in rent, does not require a Notice to Quit under 61.2, it would appear to fall within the concept of "fault" inasmuch as it, like non-payment of rent, does not require any notice under 61.2. Nevertheless 61.1 f does require termination (but not a demand for possession) on an anniversary date inasmuch as an ...


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