On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-8191-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2010
Before Judges Lihotz and Baxter.
Defendant Martha Rivera appeals from a judgment for possession granted to her landlord, plaintiff Sass Corbin Management, L.L.C., premised on her habitual late payment of rent. N.J.S.A. 2A:18-61.1(j). We reverse.
These facts are taken from the trial record. Plaintiff owns property located on Corbin Avenue, Jersey City (the property). Since September 1978, defendant has been a month-to-month tenant in a rent-controlled apartment unit in the property, for which she pays $574 per month.*fn1 Plaintiff acquired the property in 2001.
On June 5, 2009, plaintiff filed a summary dispossession complaint alleging defendant habitually remitted rental payments after the due date; that is, the first of the month. At trial, plaintiff's agent, Sass Jain, testified plaintiff's records showed defendant's rental payments were late in each of the last sixteen months. For each overdue rent remittance, plaintiff added a $35 late fee but did not insist on its payment. Notices to Cease were issued on August 14, 2008,*fn2 September 26, 2008, November 20, 2008 and March 17, 2009, advising defendant her past rental payments were late, demanding payment by the first day of the month and warning defendant of the possibility of eviction. Sass stated the notices were sent by first-class and certified mail and identified the certified notices that were returned unclaimed.
On April 24, 2009, plaintiff issued a Notice to Quit, which stated: "You have been habitually late paying rent in the past. Four notices and reminders have been forwarded to you. The last notice was on March 17, 2009. Your April rent was received April 8, 2009. Your tenancy is being terminated as of June 1, 2009." Thereafter, plaintiff accepted the May rental payment, tendered on May 1, but declined defendant's payments for June and July.
Plaintiff testified with the aid of an interpreter. She stated she has lived in the apartment for over thirty years, and she paid her rent after receiving her Social Security check on the third Wednesday of the month. At times, she needed to borrow money from her son to satisfy the total rental obligation. Nevertheless, she admitted paying a late fee in some months*fn3 but asserted her rent was current.
Other than the August 14, 2008 Notice to Cease, she asserted she had not received any other notices maintaining "[plaintiff] knows that the mailboxes in the building are always broken and the mail is thrown on the floor."*fn4 She also challenged the sufficiency of the notice, which merely mentioned that April's rent was late. Defendant argued her April payment was timely, as it was postmarked within five business days of April 1 and she paid the following month's rent on May 1. Consequently, she contends plaintiff's complaint must be dismissed.
At the close of evidence, the trial court made its findings. The judge determined that, despite the lack of a written lease, the parties understood that rent was due on the first day of the month. The trial judge noted defendant continued to remit her payments after the due date, despite receipt of the August 2008 notice to cease. Further, defendant received notice of plaintiff's intended action for possession when she paid the rent on April 8, 2009, which the trial judge found was late. The court entered judgment granting plaintiff possession.
The parties agreed to stay judgment pending appeal. Defendant remained in the apartment and plaintiff continued to accept rental payments without prejudice and without waiving its claim for possession. 279 4th Ave. Management, L.L.C. v. Mollett, 386 N.J. Super. 31, 39 (App. Div.), certif. denied, 188 N.J. 354 (2006); Ivy Hill Park, supra, 371 N.J. Super. at 115.
Our review of the factual findings made by the trial judge in a non-jury trial is quite limited. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). "'[W]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). In general, the judge's factual "findings . . . should not be disturbed unless they are so wholly insupportable as to result in a denial of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (quotation omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
New Jersey's Anti-Eviction Act (Act), N.J.S.A. 2A:18-61.1 to -61.21, mandates that no tenant 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[ion] 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.) (citing Montgomery Gateway E. I v. Herrera, 261 N.J. Super. 235, 241 (App. Div. 1992)), certif. denied, 172 N.J. 179 (2002). "We have ...