On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, LT-5984-05.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn*fn1, Collester and S.L. Reisner.
Defendant, Doretha Mollett, appeals from a judgment for possession granted to her landlord, 279 4th Avenue Management, L.L.C., premised on her habitual late payment of rent. N.J.S.A. 2A:18-61.1(j). We reverse and remand for further proceedings.
These are the most pertinent facts. Since 1976, defendant has been a month-to-month tenant in a rent-controlled apartment at 279 4th Avenue in East Orange. Her current monthly rent is $267.38. Defendant suffers from multiple sclerosis and asthma, and has an eight year old son who is developmentally disabled. Her income consists of child support of $160 per month, plus some financial support from her family.
According to defendant's testimony, since 1976 her rent had always been due on the eighteenth of the month, since that was the day on which she originally moved into the apartment. When a new owner took over the building in 2002 and asserted that defendant was paying her rent late, she sent him a letter dated June 10, 2002, clarifying that her rent was due on the eighteenth of the month, not on the first of the month. She testified without contradiction that this landlord accepted her contention and permitted her to continue to pay her rent on the eighteenth of the month.
Plaintiff, 279 4th Avenue Management, L.L.C., bought the building on March 6, 2004. Plaintiff sent all tenants a notice advising that its "policy" was that the rent was due on the first of each month. However, on April 22, 2004, defendant sent a letter to the building manager, T.J. Beinert, enclosing the rent for April 2004 and asserting that "[m]y rent is due on the 18th, which is when I took occupancy of the unit." Her letter also included a two-page single spaced list of complaints about the condition of her apartment and of the building. Her complaints included allegations that her toilet leaked, the bathtub was clogged, the radiator worked only sporadically, and the ceiling needed repair. Plaintiff presented no testimony or other legally competent evidence that Beinert did not receive the letter.
Although the trial judge would not permit defendant to pursue a Marini*fn2 defense, she was permitted to present some testimony concerning problems with her apartment, in the context of her claim that the landlord was trying to evict her in retaliation for those complaints. She testified that in August and September 2004, she sent plaintiff letters complaining about an infestation of vermin in her apartment and stating that she would be withholding rent because of this condition. She also testified that "around the end of December" there was "absolutely no heat" in her apartment for "several consecutive days" and that she complained about this problem to the landlord and to the City of East Orange. She testified that the landlord fixed the radiator in early January 2005. The landlord's agent confirmed that there was no heat, when he testified that he "did send the super to [defendant's] apartment during the heating season when we were having a problem with her particular apartment and he repaired the heat that was a problem."
Defendant paid her August rent on August 22, 2004, by money order dated August 20. She paid the September rent on September 22. On September 27, 2004, the landlord sent defendant a notice to cease, which demanded that she pay her rent by the first of the month and that she cease making late payments. Defendant paid her October rent on October 12, 2004, and the landlord sent her a second notice to cease on October 21, 2004. Defendant paid her November rent on December 7, 2004, by check dated December 3. She contended that she paid the rent late because of problems with lack of heat and a malfunctioning toilet. She claimed she gave the building manager notice of these problems and told him she was withholding her rent.
On December 7, plaintiff sent defendant a notice to quit, indicating that her tenancy would be terminated on January 31, 2005 due to habitual late payment of rent. Defendant paid the December rent on January 3, 2005. Plaintiff filed its complaint on January 31, 2005. A trial, at which defendant appeared pro se, was held on March 2, 2005, resulting in judgment for plaintiff. After Legal Services filed a motion for reconsideration, the court held further testimonial hearings on April 13, 2005, and May 9, ...