Opinion
DOCKET NO. A-2816-11T3
05-16-2013
AVALON BAY COMMUNITIES, INC. d/b/a AVALON RUN EAST, Plaintiff-Respondent, v. DOROTHY JACKSON, Defendant-Appellant.
Dorothy Jackson, appellant pro se. Griffin Alexander, P.C., attorneys for respondent (Dean L. Semer, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Haas.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. LT-8968-11.
Dorothy Jackson, appellant pro se.
Griffin Alexander, P.C., attorneys for respondent (Dean L. Semer, of counsel and on the brief). PER CURIAM
Defendant Dorothy Jackson appeals from a February 8, 2012 order of the Mercer County Special Civil Part denying her request for an extension of the hardship stay of an earlier judgment of possession granted to her landlord, plaintiff Avalon Bay Communities (ABC) on January 13, 2012. We affirm.
On August 30, 2010, defendant moved into an apartment in a complex managed by ABC. Her latest one-year lease was signed on October 11, 2011. The lease required defendant to pay her monthly rent of $1,875 by the first of each month. If she did not pay the rent by the sixth of each month, a $75 late charge was assessed. Paragraph Twelve of the lease states that late charges are "considered additional rent." Paragraph Twenty of the lease provided that, if defendant defaulted on her payments and ABC instituted legal action to terminate the lease, defendant was responsible for paying "all costs and fees, including attorney's fees, litigation and collection costs that [ABC] incur[s] in enforcing [its] rights under this Lease[.]" The lease states that "[a]ll these costs, as stated above, shall be considered additional rent.
Prior to the action that is the subject of this appeal, defendant had been late in paying her rent and ABC instituted litigation to obtain possession of the apartment. The parties settled the matter on November 14, 2011 with defendant agreeing to pay ABC $5,973.49 in unpaid rent, late charges, and fees.
Defendant did not pay her December 2011 rent on December 1 when it was due. On December 21, ABC filed a summary dispossess complaint against defendant for non-payment of rent. The complaint stated that "[t]he purpose of this complaint is to permanently remove you and your belongings from the premises. If you want the court to hear your side of the case you must appear in court on this date and time: 1/13/12 at 8:45 a.m. or the court may rule against you."
The complaint stated defendant owed ABC $2,272, comprised of the December rent of $1,875, $75 in late charges for December, $292 in attorney's fees, and $30 in court fees. It also stated:
The date that the next rent is due is January 1, 2012[.] If this case is scheduled for trial before that date, the total amount you must pay to have this complaint dismissed is $2,272.00 [the total set forth above]. If this case is scheduled for trial on or after January 1, 2012 but before January 6, 2012, the total amount you must pay to have this complaint dismissed is $4,147.00 ([the $2,272 set forth above] plus the amount of the next rent due [$1,875]). If this case is scheduled for trial on or after January 6, 2012, but before February 1, 2012, the total amount you must pay to have this complaint dismissed is $4,222.00 ([the $2,272 set forth above] plus the amount of the next rent due [$1,875] plus a late fee [$75]).Therefore, because the trial was set for January 13, 2012, defendant could obtain a dismissal of the action if she paid ABC $4,222 by that date.
[(Emphasis added).]
Defendant failed to make full payment of the $4,222 due by January 13, 2012. She paid ABC $2,272 on December 29, 2011. However, she failed to pay her January rent of $1,875 on January 1, 2012 as required and she became liable for another $75 late charge on January 6. At 11:03 p.m. on January 12, the night before the trial, defendant made an online payment of $1,895. Thus, she still owed ABC $55.
Defendant did not appear at the trial on January 13. Because her last payment of $1,895 was made so late at night, ABC's attorney did not know of it at the time of the trial. As stated above, however, defendant was still not current in her rent. Because defendant had not paid all the rent due, the trial judge entered a judgment of possession by default.
On January 23, 2012, ABC filed a landlord's certification pursuant to Rule 6:6-3(b) in order to enter the judgment of possession by default, together with a Warrant for Removal. Defendant was assessed $292 in legal fees and $30 in court costs. Added to the $55 in unpaid rent, defendant owed ABC $377.
Defendant remained in the apartment into the month of February. She did not pay the $1,875 rent on February 1. She incurred another $75 late charge on February 6 and a $20 warrant fee was imposed. Thus, defendant now owed ABC $2,347.
On February 8, 2012, defendant came to court and applied for a hardship stay of her eviction. The judge contacted ABC's attorney, who arranged to appear by telephone in opposition to the motion. Defendant acknowledged she did not pay her rent in a timely fashion and that she still owed money to ABC. However, she asserted she would not be able to pay anything toward the unpaid rent until February 15. The judge granted defendant's request for a hardship stay until March 31, 2012, provided defendant paid the full amount due, $2,347, by the end of the day on February 8.
This appeal followed. On February 15, 2012, we granted defendant's emergent application for a stay pending appeal, conditioned on defendant paying the $2,347 due to ABC by the end of the day and her continuing to make monthly rent payments by the fifth of each month during the pendency of the appeal.
On appeal, defendant argues the trial judge erred in granting the judgment of possession on January 13, 2012 and by failing to vacate it on February 8, 2012. She claims she had fully paid her rent by January 13 and could have paid the rent she owed in February by the middle of the month.
A party seeking to overturn a judgment of possession must demonstrate on appeal that the judge abused his or her discretion in entering the judgment. Community Realty Mgmt. v. Harris, 155 N.J. 212, 236 (1998). Under the circumstances of this case, we cannot find that defendant has met this standard.
Pursuant to N.J.S.A. 2A:18-61.1a, a trial court may enter a judgment of possession if the tenant "fails to pay rent due and owing under the lease whether the same be oral or written[.]" In New Jersey, parties to a residential lease may "define rent as they choose." Fargo Realty, Inc. v. Harris, 173 N.J. Super. 262, 266 (App. Div. 1980). We have long held that parties to a residential lease may treat attorney's fees and other costs related to an eviction as "additional rent." Ibid.
After failing to pay all of her rent for several months, defendant entered into a settlement under which she brought her arrears current in November 2011. However, she failed to pay her December rent and ABC instituted its action for possession on December 21, 2011.
N.J.S.A. 2A:42-9 provides that a possession action shall be dismissed if "at any time before the trial in the action for possession[,]" the tenant pays "all rents and arrears, together with the costs[.]" The trial was scheduled for January 13, 2012. ABC's complaint specifically advised defendant she needed to pay $4,222 by that date in order to obtain a dismissal of the complaint.
Defendant asserts her rent was fully paid by the time of the January 13 trial, ABC's attorney knew or should have known she made a payment on January 12, and the judge erred by issuing the judgment of possession. This contention lacks factual support in the record. Defendant did not pay the full amount due, $4,222, by January 13. She made a partial payment of $2,272 in December, but failed to pay her January rent on time and incurred an additional late charge. Late in the evening on the night before the January 13 trial, defendant paid $1,895 through the ABC website. However, she was still $55 in arrears. Therefore, even though ABC's attorney and the judge were not aware of the January 12 partial payment, there was a statutory basis for the entry of a judgment of possession on January 13 and we perceive no basis to disturb the judge's determination.
Defendant fell further behind in her rent obligations. She incurred additional attorney's fees and costs as the removal process proceeded. She did not pay her February rent on time and incurred an additional late fee and was not prepared to make any payment toward her arrears on February 8, when she sought a hardship stay of her eviction pursuant to N.J.S.A. 2A:42-10.1. At that point, she owed ABC $2,347 in unpaid rent, late charges, attorney's fees and costs. Under these circumstances, we cannot conclude the judge abused his discretion by declining to vacate the judgment of possession at that time.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION