On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-9507-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued November 9, 2012
Before Judges Lihotz and Ostrer.
In this landlord-tenant action, plaintiff 6404 Park Ave., LLC, appeals from two orders dated September 22 and November 15, 2011, dismissing its complaint for possession against defendant Theresa Betancourt, based on her habitual late payment of rent. Following trial, the judge dismissed plaintiff's complaint.
The terms of the parties' March 2, 2010 lease agreement for the rental of the premises occupied by defendant required the monthly rental to be paid by the first day of each month.*fn1
Defendant failed to timely remit her rent for the months of February through June 2010; although each payment was made, it was not paid on the first of the month. On June 28, 2010, plaintiff sent defendant a "NOTICE TO CEASE HABITUAL LATE PAYMENT OF RENT." The notice identified the late payments and stated defendant may be evicted from her apartment if she persisted in paying rent after the first of the month. A second notice of late payment was sent on November 19, 2010, stating defendant's rent payments for July through November 2010 were remitted beyond the first of each month. A third and final notice, dated February 28, 2011, identified the rent payments for November 2010 through February 2011 were also paid late. This notice also advised "IF YOU CONTINUE TO PAY LATE YOU WILL BE ISSUED A NOTICE TO QUIT DEMANDING POSSESSION OF YOUR APARTMENT."*fn2 Plaintiff then sent defendant a notice to quit on April 28, 2011. The notice instructed defendant's lease was terminated as of June 1, 2011.
Plaintiff initiated an action for possession under Docket No. LT-6705-11 for non-payment of rent. A trial date was set for May 17, 2011, after which plaintiff and defendant executed a consent order. Because our review requires consideration of this agreement, we present it at length. The parties agreed:
1. The Tenant shall pay to the Landlord, $937.36 thru [sic] May 2011, which the Tenant admits is now due and owing AGREES TO THE IMMEDIATE ENTRY OF A JUDGMENT FOR POSSESSION.
2. The Tenant shall pay the amount shown in paragraph 1 as follows: a. . . . .
b. The Tenant shall pay the rest of the amount shown in paragraph 1 as follows: Tenant shall pay (1) $524.36 representing the May 2011 rent, late fees and court [costs] by no later that 4:30 pm on May 18, 2011, either in person or ...