On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-37115-09.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2010
Before Judges Carchman, Messano and Waugh.*fn1
Following a summary trial in the Law Division, Special Civil Part, a judgment for possession was entered in favor of plaintiff/landlord, Matthew G. Carter Apartments, against defendant/tenant, Kathy Richardson. The trial judge concluded that plaintiff had established statutory grounds for eviction pursuant to N.J.S.A. 2A:18-61.1(j) (defendant had "after written notice to cease, . . . habitually and without legal justification failed to pay rent which [wa]s due and owing"). The trial judge entered a stay, premised upon defendant's payment of all rent then due and owing as well as her continued payment of future rent as it became due. The parties subsequently entered a consent order extending the stay pending appeal.
After defendant's notice of appeal was filed, she voluntarily vacated the premises. Defense counsel sought agreement with plaintiff's counsel to dismiss the appeal and vacate the judgment of possession. Plaintiff's counsel agreed to dismiss the appeal, but would not agree to vacate the judgment of possession unless defendant reimbursed plaintiff for counsel fees incurred at trial and on appeal. Defendant would not agree, and the matter was listed for argument on our calendar.
Before us, defendant contends that the judgment of possession should be vacated because she "did not habitually pay her rent late." She also contends for the first time on appeal that the judgment should be vacated because plaintiff "waived any claim to possession by signing a new lease" with defendant.
Plaintiff counters by arguing that it established grounds for eviction and that it did not waive the right to proceed by executing a new lease with defendant. Plaintiff also contends that the appeal is moot in light of defendant's voluntary decision to vacate the premises, a position defendant counters in her reply brief.
We have considered these arguments in light of the record and applicable legal standards. We reverse.
The facts and procedural history are not in dispute. Plaintiff owned residential apartments at 20 Glenridge Avenue in Montclair, and defendant had resided there with her three daughters since 1995. Defendant received rental assistance payments through the United States Department of Housing and Urban Development's Section 8 Program. See Sudersan v. Royal, 386 N.J. Super. 246, 250 (App. Div. 2005) (discussing the program and its statutory and regulatory framework). Pursuant to her lease with plaintiff, defendant's rent was considered "late" if not paid by the tenth day of each month.
In January 2009, plaintiff served defendant with a "notice to cease," alleging she had paid her rent late in February and July 2008, and in January 2009. The notice to cease further provided that "[u]nder New Jersey law, if [defendant] pa[id] [her] rent late two more times . . . [plaintiff] m[ight] terminate [her] tenancy and evict [her] for habitual late payment for [sic] rent." The notice to cease further advised defendant that plaintiff would continue to accept her rent even if paid late, but that it "d[id] not go along with the fact that [she] [was] paying it late." This non-waiver of plaintiff's eviction rights was more fully set forth in the last paragraph of the notice to cease.
Defendant tendered her rent in a timely fashion every month from February to May 2009. When she paid her June rent on June 18, plaintiff served her with a "1st Violation" of the notice to cease on June 26, reiterating that it was accepting the late rent but not waiving any rights to evict defendant in the future. See Ivy Hill Park v. Abutidze, 371 N.J. Super. 103, 117 (App. Div. 2004) (requiring the landlord to "continue to notify the tenant, when further late payments are accepted, that the breach has not been cured thereby"). On July 1, plaintiff tendered a new lease to defendant, which all parties executed on July 6. This was the first "new lease" defendant received since the inception of her tenancy in 1995. Defendant paid her August rent on August ...