Opinion
DOCKET NO. A-3315-12T2
08-05-2014
WOODCLIFF LAKE ASSOCIATES LLC, Plaintiff-Respondent v. DANIEL RAYMOND, Defendant-Appellant.
Mario M. Blanch, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Maven. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Special Civil Part, Docket No. LT-19794-12. Mario M. Blanch, attorney for appellant. Respondent has not filed a brief. PER CURIAM
Defendant Daniel Raymond appeals from a judgment for possession entered by the Law Division on February 4, 2013, in favor of plaintiff Woodcliff Associates, LLC. We reverse.
This appeal arises from the following facts. Plaintiff leased certain premises on 72nd Street in North Bergen pursuant to a written agreement, for a term beginning on August 1, 2008, and ending on September 30, 2008. The lease further provides for a one-year extension beginning on October 1, 2008. Defendant and Nora Raymond are identified as tenants on page 1 of the lease. Defendant is the only tenant who signed the agreement on page 8. However, defendant and Nora signed a document entitled "Disclosure of Information on Lead-Based Paint and Lead-Based Paint Hazards," on the same date that defendant signed the lease. Plaintiff does not dispute that both defendant and Nora Raymond are both tenants under the agreement.
Among other things, the lease provides that rent is due on the first of the month, and a $25 penalty would be assessed if rent is not paid in full by the fifth day of the month. The lease also states that an additional late charge of $25 would be imposed if the rent is not paid in full by the fifteenth day of the month. It appears that the lease was not renewed and the Raymonds continued to lease the premises on a month-to-month basis.
By notice dated April 6, 2012, plaintiff, acting through its managing agent, informed defendant that failure to pay rent on or before the fifth day of a month is a violation of the lease. The notice stated, "If you continue to pay your rent late, you may be subject to eviction." On June 13, 2012, plaintiff issued a notice of cease to defendant, stating that he may be evicted for habitual late payment of rent. The notice stated, "You have continued to pay your rent late (after the 5th of the month), after a previous warning in April of 2012. Specifically, you have paid your rent late in June 2012."
Plaintiff issued another warning notice to defendant on July 11, 2012. This notice stated that, despite the previous warning letter and notice to cease, defendant had paid rent for July 2012 after the fifth day of the month. The notice said defendant could be subject to eviction if he continued to violate the payment provisions of the lease. The notice also stated that the previously-served notice to cease remained in full force and effect.
On August 15, 2012, plaintiff sent defendant a second warning notice regarding the late payment of rent. This notice stated that defendant had paid his rent for August 2012 after the fifth day of the month. The notice also said that if defendant continued to pay rent late, he could be subject to eviction. The notice stated that the notice to cease that was previously served was still in full force and effect.
On October 16, 2012, plaintiff issued a notice to quit and demand for possession to defendant and Nora Raymond. The notice said that the Raymonds' tenancy would terminate at the end of November 2012. The notice also said that the tenancy was being terminated for habitual late payment of rent. The notice stated:
You have continued to pay your rent late (after the 5th of the month), after a previous written warning in April of 2012 and the service of a Notice to Cease in June of 2012. Specifically, since the service of the Notice to Cease you have paid your rent late in the months of July, August, and September of 2012.The notice also stated that the late payment of rent was a violation of the lease, which required payment in full by the fifth day of the month.
On December 18, 2012, plaintiff filed a complaint in the Special Civil Part of the Law Division, seeking a judgment for possession on the basis of habitual non-payment of rent. Daniel Raymond was named as defendant in the complaint, but Nora Raymond was not made a party to the action.
The judge conducted a trial in the matter on February 4, 2013. Eric Levin, plaintiff's managing agent, testified that, under the terms of the lease, rent was due to be paid by the first day of the month, but there was a "grace period" until the fifth day of the month.
Levin said that defendant had paid rent late on more than two occasions in 2011, and on more than two occasions in 2012. In April 2012, a warning notice had been issued regarding the late payments. Levin also said that defendant paid his rent late in June 2012, after which a notice to cease was issued. Defendant paid his rent late in July 2012, and an additional notice was sent to defendant regarding this late payment.
Levin further testified that defendant paid his rent late in August 2012, and another warning notice was issued. Defendant paid rent late in September 2012, and in October 2012, plaintiff issued a notice to quit and a demand for possession, based on the habitual late payment of rent.
On cross-examination, Levin said the July 2012 payment was recorded as having been received on July 10th. The August 2012 payment was recorded on August 6th. The September 2012 payment was recorded on September 4th. Levin conceded that this last payment was made within the five-day "grace period."
At the conclusion of plaintiff's case, defendant's attorney moved to dismiss the complaint, arguing that plaintiff failed to serve the notices of late payments and the notice to cease upon Nora, who also was a tenant under the lease. Defendant's counsel noted that only the notice to quit had been served upon both defendant and Nora Raymond. Counsel also argued that plaintiff had not shown late payments for July, August or September 2012. The judge denied the motion.
Thereafter, defendant testified that in 2012, he complained about the conditions of the apartment to the municipality. He stated that he received the notice to cease after he submitted his complaint to the town. He claimed the notice to cease was issued in retaliation for the complaints he made about the apartment.
Defendant further testified that after he received the notice to cease, he tried to set up an arrangement with plaintiff for payment of the rent. He claimed that he sent the rent to plaintiff "between the 1st and the 5th" of July. In August and September 2012, he sent the rent in the same time frames.
After the attorneys for the parties provided their closing arguments, the judge placed her decision on the record. The judge found that plaintiff had established its right to terminate the tenancy as to defendant. The judge determined that plaintiff had provided defendant with a notice to cease the late payments and, thereafter, defendant was late in payments for July and August 2012.
The judge found that the July payment was not made until July 10, 2012, and the August payment was not made until August 6, 2012. The judge rejected defendant's assertion that the August payment was timely because it was mailed before the fifth day of August. The judge determined that the notice to quit had been properly served, and plaintiff was entitled to a judgment of possession pursuant to N.J.S.A. 2A:18-61.1(j), based on defendant's habitual failure to pay rent when due and owing.
The judge also rejected defendant's claim that plaintiff issued the notice to cease after defendant complained about the conditions of the premises to the municipality. The judge said that defendant had not presented sufficient evidence to support his claim of retaliation.
The judge accordingly entered a judgment of possession for plaintiff and against defendant. The judge emphasized that the judgment was as to defendant only, not Nora Raymond. This appeal followed.
Defendant raises the following arguments for our consideration: (1) plaintiff failed to establish that defendant was habitually late because only one rent payment was late; (2) the rent for August 2012 was timely because the lease does not specify that the rent must be received by the fifth day of the month, only that it must be paid by that day; (3) the trial court erred by refusing to dismiss the complaint because the notices were defective, as the notices were not sent to both defendant and Nora; (4) the court should have dismissed the complaint because the notice to cease was in retaliation for defendant's complaint to a governmental agency about the conditions of the apartment; and (5) the court erred by failing to dismiss the complaint as to defendant because he reasonably believed he could pay his rent by the fifteenth day of each month.
The New Jersey Anti-Eviction Act (the Act), N.J.S.A. 2A:18-61.1 to -61.12, provides that tenants may not be removed from certain premises leased for residential purposes unless good cause for their removal is established. N.J.S.A. 2A:18-61.1. The Act states that one of the grounds for removal is that 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).
Where, as in this case, the landlord seeks a judgment of possession for the habitual failure to pay rent, the landlord must provide the tenant with the notice to cease specified by N.J.S.A. 2A:18-61.1(j), as well as a written demand for possession of the premises at least one month prior to the institution of the action for possession. N.J.S.A. 2A:18-61.2(b). The notice to quit must "specify in detail the cause of the termination of the tenancy." N.J.S.A. 2A:18-61.2.
The Act reflects the State's policy to preclude dispossession of a tenant "except upon strict compliance with the notice and procedural requirements" of the law. 224 Jefferson St. Condo. Ass'n v. Paige, 346 N.J. Super. 379, 383 (App. Div.) (citing Montgomery Gateway East I v. Herrera, 261 N.J. Super. 235, 241 (App. Div. 1992)), certif. denied, 172 N.J. 179 (2002). Strict compliance means "'punctilious' compliance" with all of the statutory requirements. Ibid.
Defendant argues that trial court erred by denying the motion to dismiss the complaint because plaintiff failed to provide the notice to cease to Nora Raymond, who is also a tenant under the lease, and because plaintiff failed to name Nora as a defendant in the action for possession. We agree.
As we noted previously, both defendant and Nora Raymond are tenants under the lease. It is undisputed that the notice to cease was only sent to defendant. Both defendant and Nora are obligated under the lease for payment of rent. Both tenants are entitled to notice that if the late payments continue, the lease agreement will be terminated. Because plaintiff failed to provide both tenants with the notice to cease, the notice was legally deficient.
Moreover, the complaint only named Daniel as defendant. The judge ruled that a judgment for possession would issue as to defendant only. However, the purpose of a judgment for possession is to allow the owner to regain possession of the leased premises. See N.J.S.A. 2A:18-61.2 (providing that, except for non-payment of rent, landlord must give tenant written demand and notice "for delivery of possession of the premises"). See also Hodges v. Sasil Corp., 189 N.J. 210, 221 (2007) (noting that the purpose of a summary dispossess proceeding is to provide the landlord with expeditious means to regain possession of leased premises).
A judgment of possession, even if said to have been entered only as to defendant, would effectively terminate Nora Raymond's tenancy as well. However, Nora's tenancy cannot be terminated except on a showing of good cause, pursuant to the Act. That showing could not have been made because, as noted previously, plaintiff failed to provide Nora with the notice to cease required by N.J.S.A. 2A:18-61.1(j).
Accordingly, we conclude that the trial court erred by denying defendant's motion to dismiss the complaint, and the judgment for possession entered in favor of plaintiff must be reversed. In view of our decision, we need not address the other issues raised by defendant in this appeal.
Reversed and remanded for entry of an order dismissing the complaint. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION