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2714 Summit Ave., L.L.C v. Elsa Jimenez

June 2, 2011

2714 SUMMIT AVE., L.L.C., PLAINTIFF-RESPONDENT,
v.
ELSA JIMENEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-16562-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 17, 2011 -

Before Judges Payne and Baxter.

Defendant Elsa Jimenez appeals from a judgment for possession granted to her landlord, plaintiff 2714 Summit Ave., L.L.C., premised on her habitual late payment of rent. N.J.S.A. 2A:18-61.1(j). We affirm.

Plaintiff owns property located at 2714 Summit Avenue in Union City, where defendant has been a month-to-month tenant on an oral lease since June 7, 1994. Plaintiff acquired the property from the prior owner at an unspecified point in time after defendant's tenancy began.

On November 2, 2009, plaintiff filed a summary dispossess complaint alleging defendant habitually remitted rental payments after the due date, which was the first of the month. At trial, plaintiff's agent, Esther Kaplan, testified that plaintiff's records showed defendant's rental payments were late in each of the preceding eight months. Notices to cease were issued on December 23, 2008, February 11, 2009 and April 8, 2009, each advising defendant that her past rental payments were late. Indeed, the April 8, 2009 notice to cease specified that neither the March nor April 2009 rent had yet been received as of the date the third notice to cease was issued. Each of the notices advised defendant that her past rental payments were late, demanded payment by the first day of the month, and warned defendant that she faced eviction if she did not comply.*fn1 Kaplan testified that all three notices to cease were sent by first-class and certified mail. She explained that each of the certified mail cards had come back to her signed by defendant. All three were received in evidence.

On August 28, 2009, plaintiff served a notice to quit upon defendant, advising her that she had disregarded the three earlier Notices to Cease. The Notice demanded that she vacate the apartment.

Defendant testified. She insisted that because she had moved into the apartment on the seventh day of the month, namely June 7, 1994, her prior landlord had agreed that her monthly rental payments would not be due until the seventh day of each succeeding month. She denied that any of her monthly rent payments were paid any later than that.

At the close of the evidence, the judge made his findings, concluding that, despite the lack of a written lease, the parties understood that rent was due on the first day of the month. He expressly rejected defendant's claims to the contrary. The judge observed that even if he were to accept defendant's version of when her rent was due, on the seventh day of the month, she paid the November 2008 rent significantly later, on November 13. The judge also noted that from January 2009 through April 2009, the situation deteriorated to the point where "the problem became almost unresolvable because thereafter every payment was virtually one month late." Additionally, the February 2009 check did not clear and therefore defendant's late payments persisted even after the third notice to cease was issued.

After finding that plaintiff had met all the applicable jurisdictional requirements, the judge determined that defendant had engaged in a pattern of "habitual late payment of rent" and the late payments continued despite the service upon defendant of the requisite Notices to Cease. The judge granted plaintiff a judgment for possession, and stayed the judgment pending appeal.

On appeal, plaintiff raises a single claim:

I. THE LANDLORD RESPONDENT FAILED TO PROPERLY SERVE TENANT APPELLANT AS REQUIRED BY LAW IN ORDER TO ESTABLISH JURISDICTION WITH THE COURT AS REQUIRED BY N.J.S.A. 2A:18-61.2.

New Jersey's Anti-Eviction Act (Act), N.J.S.A. 2A:18-61.1 to -61.21, provides that no tenant may 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 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.), 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. As pertinent to this appeal, the Act authorizes eviction when the tenant, "after written notice to cease," has "habitually and without legal justification failed to pay rent which is due and owing." ...


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