PALMA ROSENBAUER v. NICOLE RUBAN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0817-08T30817-08T3

PALMA ROSENBAUER,

Plaintiff-Respondent,

vs.

NICOLE RUBAN,

Defendant-Appellant.

__________________________________

 

Argued: April 29, 2009 - Decided:

Before Judges Cuff, C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division-Special Civil Part, Bergen County, Docket No. LT-6626-08.

Mark W. Welsh argued the cause for appellant (Northeast New Jersey Legal Services, attorneys; Mr. Welsh, on the brief).

Palma Rosenbauer, respondent, argued the cause pro se.

PER CURIAM

In this landlord-tenant action, defendant Nicole Ruban argues that the trial court lacked jurisdiction to entertain plaintiff Palma Rosenbauer's complaint for possession of the leased premises due to the inadequacy of the required notice to quit. Defendant also argues that the judge erred when she issued a judgment of possession for nonpayment of rent. We agree that the notice to quit was insufficient to confer jurisdiction on the court, and the judgment for possession for nonpayment of rent should not have been entered.

Plaintiff filed a two count complaint to regain possession of a room she had let to defendant in a house owned by plaintiff in Hackensack. Over the course of several weeks, plaintiff sent seven notices to defendant. The first notice, dated June 27, 2008, advised defendant that she must cease cooking, heating and preparing food in her room or in the hallways or other areas of the house. The second notice, dated June 30, 2008, notified defendant that she was required to sign a residential lease and agree to the rules and regulations governing her occupancy of the leased room.

The third notice, dated July 3, 2008, advised defendant that plaintiff had received notice that defendant's temporary rental assistance would terminate and that defendant was responsible for the full amount of her rent. On that same date, plaintiff issued a second notice to cease for failure to sign a rental agreement.

On July 21, 2008, plaintiff notified defendant that her rent would increase from $606 per month to $636 per month effective August 1, 2008. On July 27, 2008, plaintiff sent defendant a second notice to cease concerning her use of a hot plate for the preparation of food on the second floor of the home. Plaintiff advised defendant that she must cease use of a hot plate to prepare food in her room and must also cease use of a space heater in her room.

On July 31, 2008, plaintiff sent defendant a notice to quit for failure to sign a lease. The document provides:

You have been given two (2) Notices to Cease as required by law. This Notice to Quit signifies that the number of days has transpired after notifying you twice that you have failed to sign the required Periodic Residential Rental Agreement and that I am now taking the other required legal steps for your eviction in a court of law. You can no longer rent or occupy a bedroom in my house without signing and adhering to a Rental Agreement and a set of Safety Rules and House Regulations.

On August 7, 2008, plaintiff filed a complaint seeking possession of the premises.

In her complaint, plaintiff asserted that she was entitled to regain possession due to defendant's failure to sign a rental agreement and accept the rules and regulations of the house and due to nonpayment of the August rent. On August 25, 2008, the trial judge issued a judgment of possession. The judge found that the Anti-Eviction Act (the Act), N.J.S.A. 2A:18-61.1 to -61.21, did not govern the tenancy because the premises was owner-occupied. She also found that the August rent was not paid on August 1 and remained unpaid on August 25. Therefore, the trial judge entered a judgment of possession based on nonpayment and disorderly conduct.

In response to defendant's motion to vacate the judgment of possession, the judge determined that the Act applied to the tenancy, that defendant received the requisite notices required by the Act, that the July 31, 2008 notice to quit was sufficient as a matter of law, and that plaintiff had submitted sufficient evidence to terminate the tenancy for cause based on disorderly conduct.

Defendant filed a second motion to vacate the judgment of possession, which was also denied. On September 24, 2008, the judge filed a supplemental opinion pursuant to Rule 2:5-1(b) in which she explained that the various notices were clear and specific about the offending conduct, and the notice to quit was "proper, specific, and gave the Defendant the required notice that Plaintiff would now take the required steps for eviction in a court of law." The judge also found that defendant had not paid rent for August or September 2008 and had caused damage to the premises. Under these circumstances, the judge refused to grant a stay because plaintiff would suffer significant hardship. Defendant no longer lives in the premises.

On appeal, defendant argues that the notice to quit sent by plaintiff to defendant was insufficient as a matter of law. Therefore, the trial court lacked jurisdiction to consider that portion of the complaint that sought termination of the tenancy for cause other than nonpayment of rent. Defendant also contends that plaintiff failed to establish a cause of action for nonpayment of rent because plaintiff returned two vouchers from the local welfare agency that would have paid the rent in full.

Although defendant no longer resides in the leased room and has no desire or intention to resume occupancy of the premises, we do not consider this matter moot. Defendant received temporary emergency housing assistance and may qualify for housing assistance in the future. A recipient of these benefits risks inability to gain acceptance or selection by other landlords or sponsors if evicted for cause. Vill. Apts. of Cherry Hill v. Novack, 383 N.J. Super. 574, 580 (App. Div. 2006); N.J.A.C. 5:80-7.3(c)2. Therefore, we proceed to determine the adequacy of the notices sent by plaintiff to defendant.

When a landlord seeks to terminate a tenancy for cause, she is required in several instances to serve a notice to cease, N.J.S.A. 2A:18-61.1b, d-e, j, and a notice to quit, N.J.S.A. 2A:18-61.2. The function of the notice to cease is to provide notice to the tenant of offending conduct and an opportunity to alter her conduct. RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709-10 (App. Div. 1988). The purpose of the notice to quit is to inform the tenant that the tenancy has been terminated, the reasons for termination, and that the tenant must leave the premises. Carteret Props. v. Variety Donuts, Inc., 49 N.J. 116, 123 (1967).

Strict observance of the notice requirements is required. To do otherwise undercuts the salutary purpose of the Act. 224 Jefferson St. Condo. Ass'n v. Paige, 346 N.J. Super. 379, 383-84 (App. Div.), certif. denied, 172 N.J. 179 (2002). Moreover, the existence of legally sufficient notices is a jurisdictional pre-requisite. Kroll Realty, Inc. v. Fuentes, 163 N.J. Super. 23, 26 (App. Div. 1978).

Here, the record reveals that the landlord sent four notices to defendant that the trial judge properly found to satisfy the obligation to provide a notice to cease. The issue before this court is the sufficiency of the July 31, 2008 notice to quit.

A notice to quit must state the reason for the termination of the tenancy, it must inform the recipient that they are in a landlord-tenant relationship, that the premises must be vacated on a certain date, and that the right to occupy the premises ceases as of that date. Harry's Vill., Inc. v. Egg Harbor Twp., 89 N.J. 576, 585 (1982). Measured by this standard, the July 31, 2008 notice to quit is legally insufficient. Notably, the July 31 notice simply informed defendant that plaintiff was able to initiate legal proceedings to effect her eviction and offered the possibility that she could continue to occupy the premises, if she signed the rental agreement and agreed to be bound by the rules and regulations. See also Sibig & Co. v. Santos, 244 N.J. Super. 366, 368 (App. Div. 1990) (purported notice to quit that does not inform the tenant when the tenancy will terminate is insufficient as a matter of law). Having issued an insufficient notice to quit, the trial court lacked jurisdiction to terminate the tenancy for any cause other than nonpayment of rent.

Nonpayment of rent is good cause to terminate a tenancy. N.J.S.A. 2A:18-61.1a. Neither a notice to cease nor a notice to quit is required. Ibid.; N.J.S.A. 2A:18-61.2. On the other hand, a cause of action for nonpayment of rent presumes that the rent is due and owing. Sudersan v. Royal, 386 N.J. Super. 246, 252 (App. Div. 2005). Moreover, tender of payment on the trial date cures the cause for eviction. Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 235 (1998).

Here, the record reveals that the local social services agency issued vouchers to defendant to pay her August and September rent. Plaintiff received the vouchers on September 3, 2008, after entry of the judgment of possession. The record also reveals that defendant's attorney was prepared to renew the tender of the vouchers to plaintiff at the time of the first motion for reconsideration of the earlier ruling about the applicability of the Act to the tenancy between the parties. Ultimately, the vouchers were not tendered because the judge reconsidered her earlier ruling but then found the notice to quit was legally sufficient and allowed entry of a judgment of possession for cause. No mention was made at that time of defendant's failure to pay rent.

Under these circumstances, the record did not support eviction for nonpayment of rent. Having issued what plaintiff believed to be an effective notice to quit, she could not accept the tendered vouchers. Acceptance of rent after issuance of a notice to quit nullifies the notice. Carteret Props., supra, 49 N.J. at 129; Montgomery Gateway E. I v. Herrera, 261 N.J. Super. 235, 240 (App. Div. 1992). In addition, defendant was prepared to pay the rent due and owing and withheld tender of the funds because payment would not secure her continued occupancy due to the legal ruling concerning the sufficiency of the notices and the conduct of defendant. Plaintiff cannot reject the tender of rent to preserve the efficacy of the notice to quit and then seek possession due to nonpayment of rent.

In summary, the notice to quit was insufficient to confer jurisdiction on the court to consider plaintiff's complaint to terminate the tenancy for cause other than nonpayment of rent. The judgment of possession on nonpayment of rent is not supported by the record. The judgment of possession is, therefore, reversed.

Reversed.

This court also declined to stay the warrant of removal.

(continued)

(continued)

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A-0817-08T3

June 4, 2009