VINELAND MHC, LLC v. FRANK FERRETTI, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VINELAND MHC, LLC,

Plaintiff-Respondent,

v.

FRANK FERRETTI, JR.,

Defendant-Appellant.

_________________________________

Argued June 25, 2013 - Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Cumberland County, Docket No. LT-1693-12.

Brenda L. Rascher argued the cause for appellant (South Jersey Legal Services, Inc., attorneys; Ms. Rascher, on the brief).

Christopher J. Hanlon argued the cause for respondent (Hanlon Niemann, P.C., attorneys; Mr. Hanlon, on the brief).

PER CURIAM

Defendant Frank Ferretti, Jr., a tenant in a mobile home park operated by plaintiff Vineland MHC, LLC, appeals from default judgment granting summary dispossession to plaintiff, and from the Law Division's two orders denying his motions to vacate the judgment. Defendant's main argument on appeal is that the pre-suit notices served by the landlord were deficient, thereby depriving the trial court of subject matter jurisdiction to dispossess him. We affirm.

We derive this factual and procedural background from the record. At the relevant times, defendant was the owner and occupant of a mobile home located on plaintiff's property in Vineland. Defendant resided on the lot pursuant to a written lease with plaintiff dated September 1, 2006. The lease identified defendant as the "Resident" on the lot.

Paragraph 8 of the lease set forth restrictions and protocols regarding the resident's guests. That provision stated, in relevant part:

If any family members of the Resident(s) are to live in the home with the Resident(s), the Resident(s) shall provide a list of the names of said family members to the Landlord prior to the signing of this Lease. No other family members or guests will be permitted to live in the mobile home Community or visit for longer than seventy-two (72) hours without the written permission of the Landlord. . . . All guests must register with the Landlord.

Another key provision of the lease, paragraph 3, entitled "Duration of the Lease," stated:

This Agreement gives the Resident(s) the right to occupy the above names [sic] space for a residency of a one year period, commencing on the day of Sept[.] 1, 2006. Thereafter, this Lease shall renew as a month[-]to[-]month Lease, subject to written notification. All rights granted to the Resident(s) by this Agreement shall end upon the death of the person or persons who are names [sic] as Resident(s) in this Lease. Landlord shall not be liable to Resident(s) for any failure to give Resident(s) possession of the leased property at the start of this Lease, nor shall any such failure constitute a breach under this Lease. However, Rent shall only be charged from the date on which possession is made available to Resident(s). If Landlord cannot give Resident(s) possession within 30 days after the starting date of Lease, Resident(s) shall have the option to cancel this Lease.

Although defendant apparently paid his rent, a concern arose about his practice of allowing other individuals to reside with him in the mobile home without registering them with plaintiff, the landlord. The situation was described as follows in a certification by Jeanne Ramos, plaintiff's property manager:

It has come to our attention that Mr. Ferretti has numerous individuals residing in his home. They have been seen coming and going from there repeatedly. I do not know who they are and he refused to tell me. I have discussed this with him and he has not denied it in fact he admitted it. During these discussions I informed him that he was violating the Vineland Hills Mobile Home Park Lease. He never made an inquiry about what the applicable Lease was or expressed any ignorance concerning this obligation. He only communicated defiance. He told me "if they give me a forty ounce beer, I let them stay here."

Because of this ongoing problem, plaintiff served a notice to cease on defendant by regular and certified mail1 in September 2011. The notice to cease, dated September 16, 2011, was signed by plaintiff's attorney. It stated, in pertinent part:

Specifically, you are in violation of paragraph 3 of your Lease Agreement, entitled OCCUPANCY RESTRICTIONS, for allowing numerous unauthorized occupants, to reside in your mobile home. Only Resident and those persons named in the Lease are to occupy the premises. You must register these unauthorized occupants immediately or remove them from your mobile home immediately.

Additionally, the notice to cease advised defendant that failure to stop the unauthorized activity would result in plaintiff filing a complaint in the Special Civil Part for a judgment for possession of the leased premises. If the unauthorized activity continued, the notice to cease also demanded possession of the premises and for defendant to quit the premises and relinquish control.

Despite the notice to cease, defendant did not register any guests with plaintiff and, according to the complaint, continued to allow other persons to reside with him in his unit. This persistent non-compliance caused plaintiff to issue a notice to quit on defendant, again by certified and regular mail,2 on May 14, 2012. The notice to quit advised that defendant was still in violation of paragraph 3 of the lease because the unauthorized occupants had neither been removed nor registered with the landlord. In particular, the notice stated:

You are and still remain in violation of paragraph 3 of your Lease Agreement, entitled OCCUPANCY RESTRICTIONS, for continuing to allow several unauthorized occupants to reside in your mobile home. You have not removed the unauthorized occupants nor have they been registered.

The notice to quit, also signed by plaintiff's attorney, demanded possession of the leased premises and required defendant to relinquish control within thirty days of the May 14, 2012 date on the letter. Further, the notice to quit informed defendant that a summary dispossess action would be commenced if, after the thirty-day period, defendant remained in possession.

On June 28, 2012, plaintiff filed a complaint in the Special Civil Part seeking judgment for possession of the leased premises. The complaint alleged that defendant continued to allow unauthorized persons to live in his home in violation of his lease.

On June 29, 2012, pursuant to Rule 6:2-1, a tenancy summons and return of service was issued by the court. This document specified that a hearing in the case had been set for July 18, 2012, and warned that the court may rule against defendant if he did not appear in court. A Special Civil Part officer certified that the summons had been duly posted at defendant's unit.

Because defendant failed to appear in court on July 18, the court that day granted plaintiff default judgment for summary dispossession. Several days later, plaintiff's counsel requested the Special Civil Part to issue a warrant of removal to evict defendant from the leased premises. With still no response from defendant, the court issued a warrant of removal on July 31, 2012, which gave him until August 6, 2012 to vacate the premises with his personal property. The warrant was served on defendant the day it was issued.

On August 2, 2012, a private attorney retained by defendant filed a motion to vacate the default judgment with the Special Civil Part. In the motion, counsel claimed that both the notice to cease and notice to quit were defective because the notices provided neither names nor descriptions of the alleged unauthorized occupants. Additionally, the motion asserted that paragraph 3 of the lease was unreasonable.

In his supporting affidavit with the motion, defendant claimed that he had not appeared in court on July 18, 2012 because he had not received notice of the court date until July 23, 2012. He did not allege, however, that the address written on the summons and complaint was incorrect.

Opposing the initial motion to vacate, plaintiff's counsel filed a certification from Ramos. Among other things, Ramos attested that she had seen defendant on the morning of the July 18, 2012 trial date outside of his mobile home drinking a beer. When she reminded him of the upcoming court appearance, defendant allegedly replied, "I'll be there," telling Ramos "that he was waiting for his mother to come and pick him up." According to Ramos, defendant did not inquire about the court date and did not indicate ignorance or express surprise about it.

On September 19, 2012, the court denied the initial motion to vacate the default judgment. The motion judge specifically found that defendant's neglect was not excusable, that the lease's rules were unambiguous, and that the notices regarding "unauthorized persons" were sufficient because "certainly . . . he knows who's living there."

Defendant then filed a pro se order to show cause on September 24, 2012, after being locked out of his home. Defendant attached a handwritten note along with his certification for relief, stating: "I have seicers [sic] and I need someone around to help me get help. That is why Bill Dean is living with me. Jeanne Ramos the park manager gave the ok for Bill to live there."3 The court temporarily stayed the warrant for removal, pending the return date on the order to show cause. The return date was briefly adjourned after defendant secured new representation. His new attorney asserted that the notices issued by the landlord were defective and that the court had lacked jurisdiction to evict him.

Plaintiff's counsel filed a certification in opposition to defendant's application. He argued that the court had already ruled on this matter and there was no need to re-litigate the jurisdictional issue.

On October 10, 2012, after hearing oral argument, the motion judge denied this second application to vacate the default judgment. The judge found that the notices served by the landlord were sufficient to put defendant on notice as to what unauthorized activity was being alleged. The judge did, however, grant plaintiff's request to stay the removal pending the present appeal.

On appeal, defendant principally claims that the Special Civil Part lacked subject matter jurisdiction because the landlord's notices to cease and to quit were insufficiently detailed. Defendant also contends that the guest provisions in the lease are unreasonable and thus unenforceable. In addition, defendant asserts that the trial court wrongly imposed a burden of proof on him, and abused its discretion in not reopening the default judgment.

It has been observed that decisions on motions for relief under Rule 4:50-1(d) are reviewed under an "abuse of discretion" standard. See, e.g., Bank v. Kim, 361 N.J. Super. 331, 336 (App. Div. 2003). Conversely, "[w]hether subject matter jurisdiction exists presents a purely legal issue, which we review de novo." Santiago v. N.Y. & N.J. Port Auth., 429 N.J. Super. 150, 156 (App. Div. 2012). As defendant argues on this appeal that this court should vacate the Special Civil Part's order as void under Rule 4:50-1(d)4 for lack of subject matter jurisdiction, we are potentially faced with the question of which standard of review applies. We need not resolve that issue, however, because we are satisfied that the trial court committed no error in denying relief to defendant, whether a de novo standard or an abuse-of-discretion standard is applied.

In any summary dispossess action, the plaintiff must follow the procedural requirements set forth by the Anti-Eviction Act ("AEA"), N.J.S.A 2A:18-61.1 to -61.12, in order to grant the tenancy court subject matter jurisdiction to evict the tenant. Landlords are required to comply strictly with the notice requirements set forth in the AEA to evict a tenant, even in situations where "the landlord has acted in good faith or the tenant has not been prejudiced." 224 Jefferson St. Condo. Ass'n v. Paige, 346 N.J. Super. 379, 383 (App. Div.), certif. denied, 172 N.J. 179 (2002).

Defendant argues that the default judgment should be voided under Rule 4:50-1(d) because the trial court lacked subject matter jurisdiction. Defendant argues the tenancy court was deprived of jurisdiction due to allegedly material flaws in plaintiff's notice to cease and notice to quit. We disagree.

Under N.J.S.A. 2A:18-61.2, a plaintiff landlord must provide a Notice to Quit at least one month prior to commencing an action for possession if the landlord is alleging that the defendant tenant continuously violated the rules contained in the lease. The statute states, in relevant part:

No judgment of possession shall be entered for any premises covered by section 2 of this act . . . unless the landlord has made written demand and given written notice for delivery of possession of the premises. The following notice shall be required:

. . . .

b. For an action alleging continued violation of rules and regulations under subsection d. of section 2, or substantial breach of covenant under subsection e. of section 2,[5] or habitual failure to pay rent, one month's notice prior to the institution of the action for possession[.]

[N.J.S.A. 2A:18-61.2 (emphasis added)].

The notice to quit must "specify in detail the cause of the termination of the tenancy" and can be served on the tenant by certified mail or, "if the certified letter is not claimed, . . . by regular mail." N.J.S.A. 2A:18-61.2. In order to comply with the specificity requirement, a notice to quit cannot merely state a legal conclusion, but rather must provide such detail to allow the defendant adequate opportunity to prepare a defense. Cateret Props. v. Variety Donuts, Inc., 49 N.J. 116, 124 (1967) (ruling that a tenancy court lacked jurisdiction when the Notice to Quit merely stated a legal conclusion); Ivy Hill Park Apts. v. GNB Parking Corp., 236 N.J. Super. 565, 570 (Law Div.) (ruling that the notice was sufficient because the reason for the specificity requirement is to provide the defendant with an opportunity to prepare, and the notice did), aff'd, 237 N.J. Super. 1 (App. Div. 1989). In determining whether the notice conforms to the specificity requirements for jurisdictional purposes, the court generally must examine the document "within its four corners." Carteret Props., supra, 49 N.J. at 125.

Defendant contends that plaintiff's notices to cease and to quit lacked the requisite specificity, and merely expressed a legal conclusion that he was allowing "unauthorized" persons to reside in his mobile home. Given the language and the context of the lease in this case, we reject that contention.

Defendant cites Ashley Court Enters. v. Whittaker, 249 N.J. Super. 552, 556 (App. Div. 1991) for the proposition that failing to describe or list the unauthorized occupants is a violation of the specificity requirement. In Ashley Court, the landlord sent a tenant a notice to quit, which provided only the following reason for termination: "You have violated N.J.S.A. 2A:18-53 by allowing unauthorized individuals to reside in your apartment." Ibid. This court found that language to not be specific enough in three respects. Ibid. First, the statute cited in the notice contains removal grounds that specifically cannot be used as the basis for removal against residential tenants, like those in Ashley Court, that are covered by N.J.S.A. 2A:18-61.1.6 Ibid. Second, and importantly to defendant here, the notice did not list or describe the alleged unauthorized occupants. Ibid. Third, the notice did not give a full month for the tenant to quit the premises. Ibid.

This case is readily distinguishable from Ashley Court. Here, plaintiff provided defendant with ample time to quit the premises. The notice to quit was mailed on May 14, 2012, and the complaint was not filed until June 28, 2012.

Additionally, the notice to quit did not cite an improper statute. Rather, the notice to quit pointed to a specific violation of a provision of defendant's lease by citing paragraph 3. Although the cited paragraph was mislabeled in the notice to quit as "Occupancy Restrictions" instead of "Duration of the Lease" and paragraph 3 does not use the specific phrase "unauthorized occupants," paragraph 3's affirmative statement that the resident may occupy the space allows the reader to infer the correlated negative, i.e., that non-residents do not have the right to occupy the space. Moreover, paragraph 8 of the lease specifically states that "[a]ll guests must register with the Landlord" if they intend to reside at the tenant's abode for longer than 72 hours.

If, hypothetically, defendant was confused about to what the notice was referring, he had ample time to ask the landlord about the issue. Instead, he did not act until he was forced to when the warrant for removal was issued by the tenancy court. Ramos certified that "[defendant] never made an inquiry about what the applicable Lease was or expressed any ignorance concerning this obligation. He only communicated defiance." This certification was unrebutted, and there was no obligation of the trial court to conduct an evidentiary hearing on the subject.

Where a landlord's notice references another document which had been provided to the defendant tenant, the additional document may be considered as well in answering the question of whether the defendant had adequate notice. See Ivy Hill Park Apts., supra, 236 N.J. Super. at 570. Here, that document is the parties' lease, which makes clear defendant's obligation to register other residents with the landlord if they reside with him longer than the prescribed period.

Defendant contends the notice to quit is insufficient because it cites "unauthorized occupants," as in Ashley Court, supra, 249 N.J. Super. at 556. Defendant claims to be unaware of to whom plaintiff is referring. However, Ramos certified that not only did she have a discussion with defendant about the unauthorized occupants, but that he refused to tell her who they were. Defendant admitted to her that he had numerous individuals residing in his home. Defendant never denied this in the court proceedings below and does not deny the allegation on this appeal, nor does he deny that this conversation took place.

When the notice to quit arrived, defendant should have been on notice of who these people were, since he had previously conversed with Ramos about them. Defendant instead was flippant regarding his obligation, stating that "if they give me a forty ounce beer, I let them stay here." Plaintiff could not have been more specific regarding the unauthorized occupants because defendant refused to tell Ramos any information about them at all.

Here, as in Ivy Hill, supra, this panel is permitted to examine the lease agreement that is referenced in the notice to cease and notice to quit, even though it may technically be outside of "the four corners" of the notices, because tenant had the opportunity to review his lease when the notices arrived. 236 N.J. Super. at 570.

We also find unavailing defendant's reliance upon the language in Ashley Court, supra, suggesting that, in an unauthorized occupant case, the landlord's notices must "list or describe" the unauthorized occupants. 249 N.J. Super. at 556.

The present case is distinguishable from Ashley Court because the notices here further state: "Only Resident and those persons named in the Lease are to occupy the premises." This admonition, in addition to the text of the lease, should have clarified for tenant that anyone other than tenant himself is unauthorized. A list of unauthorized occupants was unnecessary to recite in the notice, since the tenant should have known from the cited provision that he is the only possible authorized resident.

Additionally, the notice gave tenant the option to "register these unauthorized occupants" in order to avoid eviction. Although defendant claims that he obtained permission from the landlord for a "Bill Dean" to reside with him, the park manager, Ramos certified, in the plural, that there were "numerous individuals residing in his home." (Emphasis added). As defendant, at best, only "registered" one person, and does not dispute with an opposing certification that more than one person was residing with him, his criticisms of the landlord's notices are unjustified. All that he needed to do was to register the additional persons, and he failed to do so. We therefore reject defendant's claim that the judgment for dispossession was void.

Because the court properly exercised its subject matter jurisdiction in this case, the default judgment was not required to be vacated. Given that conclusion, we need not address defendant's merits-based claim that the lease provision requiring the registration of guests after seventy-two hours is unreasonable.

The balance of defendant's arguments lack sufficient merit to discuss in this written opinion. R. 2.11-3(e)(1)(E).

Affirmed.

1 Defendant did not sign for the certified mail, but the regular mail, which was sent to his unit's address at the mobile home park, was not returned by the post office.

2 This certified letter also was not claimed, but the regular mail version was successfully delivered.

3 Defendant's medical condition was not further substantiated in the record, and Ramos neither confirmed nor denied her approval of "Bill Dean" living with defendant. Importantly, defendant does not assert here any claim under any disability statute.

4 Defendant's counsel waived on the record, during colloquy in the trial court, reliance upon the "excusable neglect" provision in Rule 4:50-1(a). Even if such waiver had not occurred, we are unpersuaded that defendant's failure to appear in court was justified by such excusable neglect, given Ramos's certification about her unrebutted conversation with defendant, in which he acknowledged the pending court date. Mancini v. EDS, 132 N.J. 330, 335 (1993). Defendant had the burden of proof on this point, as the movant for relief, and did not satisfy it.

5 This is a reference to another section of the AEA which states:

No lessee or tenant . . . may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes . . . except upon establishment of one of the following grounds as good cause:

. . . .

d. The person has continued, after written notice to cease, to substantially violate or breach any of the landlord's rules and regulations governing said premises, provided such rules and regulations are reasonable and have been accepted in writing by the tenant or made a part of the lease at the beginning of the lease term.

e. (1) The person has continued, after written notice to cease, to substantially violate or breach any of the covenants or agreements contained in the lease for the premises where a right of reentry is reserved to the landlord in the lease for a violation of such covenant or agreement, provided that such covenant or agreement is reasonable and was contained in the lease at the beginning of the lease term.

[N.J.S.A. 2A:18-61.1].

6 The statute cited in the notice states:

Except for residential lessees and tenants included in [N.J.S.A. 2A:18-61.1], any lessee or tenant at will or at sufferance, or for a part of a year, or for 1 or more years, of any houses, buildings, lands or tenements, and the assigns, undertenants or legal representatives of such tenant or lessee, may be removed from such premises by the Superior Court, Law Division, Special Civil Part in an action in the following cases: . . . .

[N.J.S.A. 2A:18-53 (emphasis added)].