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Roland-Leopoid v. Khoury

July 7, 1997


Winkelstein, J.s.c.

The opinion of the court was delivered by: Winkelstein


The issue presented in this landlord/tenant action is whether N.J.S.A. 2A:18-53(a) requires that service of the notice to quit to obtain possession of the premises must be made personally by the landlord or the landlord's agent or whether service by certified mail is sufficient.

The facts in this case are undisputed. Plaintiffs are the landlords and defendant is the tenant in the property known as 124 Atlantic Avenue, Atlantic City, New Jersey. The parties have an oral month to month lease. The property is a two unit, owner occupied building, with the landlords residing in the second floor unit. There is no dispute that the tenancy is not protected by N.J.S.A. 2A:18-61.1, but rather falls under N.J.S.A. 2A:18-53, which provides for removal of tenants in other than protected tenancy situations.

On April 14, 1997, plaintiffs mailed to the tenant, by certified and regular mail, a notice to quit terminating the tenancy as of May 31, 1997. It is undisputed that the tenant received the certified mail, and signed for same, on April 15, 1997. It is also undisputed that the notice provided was technically sufficient under the statute. What is disputed is whether the method of service of the notice by certified mail is sufficient under N.J.S.A. 2A:18-53.

N.J.S.A. 2A:18-53 sets forth, in pertinent part, as follows:

Any lessee or tenant at will or at sufferance, ... may be removed from such premises by the Superior Court, Law Division, Special Civil Part in an action in the following cases:

a. Where such person holds over and continues in possession of all or any part of the demised premises after the expiration of his term, and after demand made and written notice given by the landlord or his agent, for delivery of possession thereof. The notice shall be served either personally upon the tenant or such person in possession by giving him a copy thereof or by leaving a copy of the same at his usual place of abode with a member of his family above the age of 14 years.

[N.J.S.A. 2A:18-53.]

N.J.S.A. 2A:18-54 provides that if the notice as required by N.J.S.A. 2A:18-53 cannot be served in the manner provided, or a summons and complaint cannot be served as in other actions, the notice or summons and complaint may be served upon any person actually occupying the premises either personally or by leaving a copy with a member of the family over 14 years of age or, if admission to the premises is denied or members of the family are absent from the premises, the notice or summons and complaint may be posted upon the premises. See N.J.S.A. 2A:18-54. N.J.S.A. 2A:18-56 provides that no judgment for possession pursuant to N.J.S.A. 2A:18-53 shall be ordered unless, among other things, "(d) it shall be shown to the satisfaction of the court by due proof that the notice herein required has been given." N.J.S.A. 2A:18-56(d).

Defendant argues that the notice given in this matter was insufficient as it was not personally handed to the tenant by the landlord or the landlord's authorized agent. The position taken by defendant is that the statute, N.J.S.A. 2A:18-53(a), is clear on its face, requiring personal service, not service by mail. Defendant points to N.J.S.A. 2A:18-61.2 which, contrary to N.J.S.A. 2A:18-53, permits notice by certified and regular mail as an alternative to personal service. The defendant's argument is that if the Legislature had intended to permit service by mail under N.J.S.A. 2A:18-53(a), it could have done so through express language but, as it chose not to do so, the clear language of the statute should be followed. Plaintiffs' position is that "personal service" pursuant to N.J.S.A. 2A:18-53 does not, by its very terms, limit service to that made only by the landlord, but may include service by persons designated by the landlord, including the letter carrier who delivers the letter by certified mail. The landlords argue that the intent and spirit of the statute is to provide notice to the tenant so the tenant can know the reason the lease is being terminated, and contend that the goal is achieved by virtue of receipt of the notice by the tenant by certified mail.

Although there is no case law which addresses this issue directly, there are a number of cases from which this court can obtain guidance. The first inquiry is to determine the purpose of the notice. A notice pursuant to N.J.S.A. 2A:18-53 is required to "specify the cause of action of the tenancy," and as such is considered jurisdictional. Carteret Prop. v. Variety Donuts, Inc., 49 N.J. 116, 123, 228 A.2d 674 (1967). Thus, departures from strict compliance with the statutory scheme have resulted in the action being dismissed. Id. at 124-25. However, it is the content of the notice, rather that the method by which the notice is served, which the courts have always considered critical. Notice is provided to allow the tenant to know the reason he or she is being removed from the premises and to permit the tenant to adequately prepare a defense in the event he or she contests the removal in court. Ivy Hill Pk. Apts. v. GNB Parking Corp., 236 N.J. Super. 565, 570, 566 A.2d 565 (Law. Div.), aff'd, 237 N.J. Super. 1, 566 A.2d 820 (App. Div. 1989). The existing body of case law does not address the strict requirements of the statute as it applies to service of the notice. However, there is case law which addresses the sufficiency of service of notices under different circumstances.

The seminal case on the issue of service of notice is Wilson v. Trenton, 53 N.J.L. 645, 23 A. 278 (E. & A. 1891), which is often cited for the proposition that there is a distinction between official or judicial service, such as service of a summons, and substituted or constructive service, such as publication or posting. In Wilson, the court concluded that where the statute does not direct that personal service be made by any particular official in any particular matter, as long as the notice conveyed to the person affected by the notice was sufficient and there was evidence of actual delivery to the party, such service would be sufficient. See id. This proposition was followed in McKenna v. Harrington Co., 96 N.J. Eq. 700, 126 A. 532 (E. & A. 1924), where a defendant attempted to make legal service by mail on the plaintiff of a notice to redeem a tax sale certificate to cut off the equity of redemption in the plaintiff's premises. The controlling statute required that the notice be personally served if the person resided in the taxing district or, if the person resided outside of the taxing district, the notice could be either personally served or served by mail at their post office address. Id. at 700. The plaintiff therein resided in the taxing district but also had a home located outside the taxing district. Id. at 701. A notice to redeem was forwarded to her New York City home, located outside the taxing district, by registered mail and she admitted receiving the notice. See ibid. The court found that service was proper. Ibid. It concluded, based on Wilson, supra, that service by registered mail was sufficiently personal within the meaning of the statute even though it was not hand delivered to the plaintiff by either defendant or defendant's agent. Ibid.

Another case which provides substantial guidance to this court is Alexander v. Rekoon, 104 N.J.L. 1, 139 A. 796 (S. Ct. 1927). In Alexander, a real estate broker brought suit to recover certain commissions claimed due him under a contract with the defendant for the sale of a lot in Newark. Id. at 2. The contract was oral and the statute of frauds was raised as a defense when the plaintiff sought to enforce the contract. Ibid. The case was controlled by a statute concerning real estate brokers which provided that the broker "shall within five days of the making of such oral contract serve upon such owner a notice in writing setting forth the terms of such oral agreement and stating the rate or amount of commissions to be paid thereunder" and that the notice "shall be served either personally or by forwarding the same to the person to be served by registered mail to the last known post office address of such person." Id. at 2-3. The plaintiff in Alexander sent the required notice by regular mail, which was not provided for in the statute. Id. at 2. Relying on Wilson, supra and McKenna, supra, the Alexander court concluded that where a statute provides for personal service of notice, "without requiring it to be made by an official or in a particular mode, the depositing of the notice with an agency of the federal government for the purpose of having it delivered, and the actual delivery thereof by such agency to the person to whom the notice is addressed, constitutes a personal service." Id. at 3. Thus, Alexander stands for the proposition that when a statute requires personal service but does not indicate by whom the personal service must be made, delivery by mail may ...

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