August 27, 2010
SASS CORBIN MANAGEMENT, LLC, PLAINTIFF-RESPONDENT,
MARTHA RIVERA, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 defined 'strict compliance' as 'punctilious' compliance with all of the Act's provisions, including the notice provisions." Ibid. (citations omitted).
"'[B]ecause the grounds for eviction are statutory . . . the plaintiff-landlord must prove all elements of the statutory ground alleged.'" Mollett, supra, 386 N.J. Super. at 37 n.3 (quoting Mahlon L. Fast, J.S.C., Ret., Landlord-Tenant and Related Issues in the Superior Court of New Jersey 191 (ICLE) (2004)). In other words, strict "compliance with the Act is a jurisdictional prerequisite to the institution of a summary dispossess action." Paige, supra, 346 N.J. Super. at 384; Kroll Realty, Inc. v. Fuentes, 163 N.J. Super. 23, 26 (App. Div. 1978).
The ground for removal of a residential tenant provided in the Act applicable to this matter results when the tenant "after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing." N.J.S.A. 2A:18-61.1(j); Mollett, supra, 386 N.J. Super. at 38; 534 Hawthorne Ave. Corp. v. Barnes, 204 N.J. Super. 144, 147 (App. Div. 1985). The landlord bears the burden of proving when the rent was due, when it was received, and that the statutory notices, required by N.J.S.A. 2A:18-61.2, were properly served upon the tenant.
Essential to the landlord's obtaining a judgment of possession is notice of the intended action. First, a notice to cease must be sent providing a tenant with notice of the offending conduct and an opportunity to alter that conduct. RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709-10 (App. Div. 1988). Second, if the tenant does not cease the late payments, a notice to quit is mailed informing the tenant that the tenancy has been terminated and the basis of the termination, requiring the tenant to vacate the premises. Carteret Props. v. Variety Donuts, Inc., 49 N.J. 116, 123 (1967). The notice to quit must "specify in detail the cause of the termination of the tenancy." N.J.S.A. 2A:18-61.2. In this regard, the Court has interpreted the phrase "specify in detail" to mean "to name in a specific or explicit manner; to state precisely or in detail, to point out, to particularize, or to designate by words one thing from another." Carteret Props., supra, 49 N.J. at 124. Accordingly, a landlord's failure to comply with the notice requirements emasculates the salutary purpose of the Act, precluding entry of judgment. Paige, supra, 346 N.J. Super. at 383-84.
"The Act does not specify any limit on the number of months that must pass before the Notice to Cease becomes ineffective or must be reissued, nor does it state how many late payments of rent constitute 'habitual' late payment of rent under the statute. A.P. Development Corp. v. Band, 113 N.J. 485, 495-96 (1988). The Court has instructed we apply "a flexible[,]" rather than a strict time period so that a determination that the tenant's conduct is "habitual" becomes "a function of time and circumstances." Ibid.
Relying on Barnes, supra, 204 N.J. Super. at 148, defendant centers her arguments on an asserted lack of specificity in the notice to quit, maintaining the notice failed to "specify in detail" the cause of the termination of the tenancy or fully advise her of the facts she must defend against; namely, which months were at issue. Defendant maintains the notice listed only April's late payment, which she argues does not meet the minimum notice requirement, rendering the notice invalid.
In Barnes, the defendant was served a Notice to Quit less than one month after being served a single notice to cease. Id. at 146. We held to constitute "habitual late payment of rent," as "a ground for removal of a residential tenant under N.J.S.A. 2A:18-61.1j, . . . more than one late payment following a written notice to cease" must be shown. Id. at 148 (holding that at least two late payments following a Notice to Cease must occur to establish a finding of habitual late payment of rent).
We are persuaded by defendant's arguments regarding defects in the Notice to Quit. Despite ostensibly being due on the first of the month, defendant's rent deadline was extended five business days pursuant to the Senior Citizens and Disabled Protected Tenancy Act, N.J.S.A. 2A:42-6.1 to -6.3. "[B]usiness day" is defined to "mean any day other than a Saturday, Sunday or State or federal holiday." N.J.S.A. 2A:42-6.1. Computation of the five-day period does not include the day of the event from which the designated time period is to run. See, e.g., R. 1:3-1 (stating that when "computing any period of time fixed by rule or court order, the day of the act or event from which the designated period begins to run is not to be included"). Accordingly, in the case of defendant's disputed April 2009 payment, five business days from April 1 - excluding weekends - was April 8, 2009, the day defendant's money order was received. Therefore, the rental payment was not late in April 2009, contrary to the trial court's finding.
The Notice to Quit, based on the erroneous conclusion that the landlord's right to seek dispossession was legally triggered by the alleged late payment of rent in April, is void and plaintiff is not entitled to relief. Paige, supra, 346 N.J. Super. at 383-84.
The judgment of possession is vacated and plaintiff's complaint is dismissed.