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Ivy Hill Park, Section III, Inc. v. Abutidze

July 09, 2004

IVY HILL PARK, SECTION III, INC., PLAINTIFF-RESPONDENT,
v.
ZAZA ABUTIDZE & LALI GIORGADZE, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-7278-03.

Before Judges Fall, Parrillo and Hoens.

The opinion of the court was delivered by: Hoens, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 1, 2004

Defendants Zaza Abutidze and Lali Giorgadze appeal from the May 28, 2003 order of the Law Division, Special Civil Part, which reinstated a judgment of possession and warrant of removal in favor of their landlord, plaintiff Ivy Hill Park, Section III, Inc. As a part of that order, and for reasons expressed on the record on May 21, 2003, the judge denied defendants' motion to vacate the court's earlier judgment of possession or, in the alternative, to dismiss the complaint for possession on jurisdictional grounds. We reverse.

The questions raised on appeal call upon us to address issues left open by our Supreme Court in its seminal decision in A.P. Development Corp. v. Band, 113 N.J. 485 (1988), and to interpret the meaning of the statutory requirements relating to notice in the context of landlord-tenant matters. While the record on appeal is rather sparse, the facts and the procedural history relevant to the issues we here address are as follows.

Defendants have been tenants in the subject premises since 1997. Defendant Abutidze asserts that she was injured in August 2000 and was unable to continue her employment as a result of which she and her co-defendant fell behind in their payment of rent. Documents included in the record on appeal demonstrate that from at least January 1, 2002, onward, the tenants were almost always late in paying their rent, often incurring late fees as authorized by the terms of their lease. On August 29, 2002, the landlord sent a Notice to Cease, advising the tenants that their habitual late payment of the rent was a ground for their eviction, N.J.S.A. 2A:18-61.1(j), and demanding that the tenants cease paying the rent late or face eviction. It is undisputed that this notice was sent to the tenants at the address of the rented premises by certified mail, return receipt requested, and by regular mail. The certified mail was returned to the landlord, bearing a notation that delivery had been attempted three times without success and that it was therefore being returned as unclaimed. The landlord testified that the letter sent at the same time by regular mail was not returned. As of the date of the Notice to Cease, the tenants owed $1,446.86 in back rent and late fees.

The record demonstrates that in September 2002 the tenants paid a total of $2,000 to be applied to the back rent and fees and to the rent due for September, leaving a balance then due of $37.48. The record further reflects that after September 2002, unpaid rent and late fees continued to accrue until February 3, 2003, when another payment of $1,300 toward the accrued arrearages was made.*fn1 On February 11, 2003, the landlord personally served Giorgadze with a Notice to Quit and demand for possession of the premises on or before March 31, 2003 based upon the continued late payment of the rent. That notice purported to terminate the tenancy as of March 31, 2003 on that ground. The record reflects that, by the time of the service of the Notice to Quit, the tenants owed $1,505.58 in back rent and late fees.

Notwithstanding the service of the Notice to Quit and the landlord's demand that the tenant vacate the premises for habitual late payment of rent as of March 31, 2003, prior to that deadline, the landlord filed a complaint in the Special Civil Part seeking to evict the tenants based on unpaid rent for December, January and February alone. N.J.S.A. 2A:18-61.1(a). Trial on that complaint was scheduled for March 25, 2003. The tenants assert, and the landlord does not deny, that both prior to and again on the day fixed for trial, the tenants appeared and tendered the full amount of the rent then due, but that the landlord, seeking to preserve its rights, insisted that even full payment would not suffice to void the termination of the tenancy in accordance with the Notice to Quit.

Because the tenants were concerned that they might need the funds to secure a new place to live and because they were not aware that they could contest the matter in court, they declined to give the funds to the landlord if they could not thereby avoid the consequences of the Notice to Quit. For reasons not entirely apparent, the court records indicate that the disposition of the matter on that date was"default by consent."

Three days later, the landlord, having secured the judgment of possession by default, filed a certification of rent due*fn2 and a warrant of removal issued thereafter. The warrant of removal was duly served on the tenants and ordered them to vacate the premises by April 15, 2003.

On April 14, 2003, the tenants applied for and were granted an order to show cause and stay of execution of the warrant of removal with a return date of April 21, 2003, contingent upon payment into court of $500, a condition with which they complied. The April 21, 2003 return date was adjourned because a translator was not available. On April 30, 2003, the tenants, represented by counsel, appeared. At the beginning of the hearing, the landlord's attorney requested an opportunity to amend the complaint to assert additional statutory grounds for eviction, including habitual late payment of rent and holdover status because by then the March 31, 2003 termination date set forth in the Notice to Quit had passed. In response, the tenants moved to have the March 25, 2003 judgment of possession vacated and the complaint dismissed in light of the timely tender of all sums due prior to the date for trial. See N.J.S.A. 2A:18-55. The tenants asserted that they had in the interim secured rental assistance and had in their possession a check from the Essex County Division of Welfare which was sufficient to pay all of the rent then due and to prepay a portion of the rent that would be due for April 2003.

During the colloquy with the court, the landlord requested an adjournment of the matter in order to permit it to amend the complaint to assert the additional causes of action to support eviction, and rejected the tendered payment for strategic reasons.*fn3 The landlord sought to have its arguments relating to the habitual late payment of rent and the effectiveness of the termination of the lease through the Notice to Quit determined in advance of a hearing on its complaint for eviction based on the alternate ground of failure to pay rent. Counsel for the tenants consented to the adjournment and to the proposed amendment of the complaint and trial was rescheduled for May 21, 2003.

On April 30, 2003, the landlord filed an amended complaint with two counts. The first count of the amended complaint asserted that the tenants had habitually paid the rent late, had been duly served with a Notice to Cease and a Notice to Quit and had failed to vacate the premises as demanded in the Notice to Quit. The second count of the amended complaint asserted that the tenants had failed to pay rent due for all or part of the months of January, February and March 2003 and that they had failed ...


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