PARMINDERJEET S SANDHU v. VICTORIA JORDAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PARMINDERJEET S. SANDHU,

Plaintiff-Respondent,

v.

VICTORIA JORDAN,

Defendant-Appellant.

_________________________________

July 18, 2016

Argued February 1, 2016 Decided

Before Judges Simonelli and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. LT-1044-14.

Grace E. Kelly argued the cause for appellant (Legal Services of Northwest Jersey, attorneys; Ms. Kelly, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Victoria Jordan appeals from a Special Civil Part judgment for possession granted to her landlord, plaintiff Parminderjeet S. Sandhu, premised on her habitual late payment of rent. N.J.S.A. 2A:18-61.1(j). We reverse on the basis that the court did not have jurisdiction due to plaintiff's failure to adhere to procedural requirements of the Anti-Eviction Act (Act), N.J.S.A. 2A:18-53 to -84.

We briefly summarize the facts adduced from the record. Defendant began renting an apartment from plaintiff on April 1, 2011 pursuant to a written lease agreement. Defendant repeatedly paid her rent late. Thus, on or about July 12, 2014, plaintiff sent defendant the following handwritten notice1

1. You are hereby requested to vacate the apt. since you are a habitual Late payer of your rent. June Rent was paid on 24th of June. July Rent is still pending.

2. Your original lease was in 4-1-11. It has expired and you have been Living without a Lease since then, on month to month basis.

3. If you would like to Live here at 136 Mt. Ave, Attached is a new Lease, Giving you (> 60 day notice) more than 60 day notice to vacate.

4. You need to pay your rent on time. You have to pay Late fee if not paid on time. You have to pay the difference of security deposit as explained in new Lease.

5. You can sign the new Lease, if you want to accept it. You have to disclose other members of your family Living with you. You have to buy the Liability/Renters insurance/ and show me the proof.

6. You must send a certified written reply, if you want to accept the terms of new Lease.

Plaintiff sent the same notice to defendant on September 2, 2014. Two days later, plaintiff filed a complaint in Special Civil Part seeking to evict defendant for nonpayment of rent and habitual late payment of rent.

At trial, plaintiff testified that rent was owed for August, September, and October 2014. He asserted that defendant habitually paid rent late for the past two years. He also admitted that the notices to defendant incorrectly stated that June rent had been paid; the June rent was paid in July. Defendant argued the complaint should be dismissed because plaintiff failed to provide her with a notice to quit after serving her a notice to cease making late payments, and he did not wait the legally prescribed one-month time period before filing the eviction complaint.

The court ruled in favor of plaintiff, finding that defendant habitually paid her rent late and that she was given adequate notice to quit in the form of the complaint itself, which gave her the opportunity to prepare a defense to the allegations of habitual late payments. The court did not find defendant owed outstanding rent. The court granted a stay of the judgment for possession and issuance of the warrant of removal pending this appeal.

Defendant timely moved for reconsideration reiterating the arguments she made earlier to the court. She also argued that, plaintiff's admission that his notices to cease contained inaccurate information regarding the rent owed, compelled dismissal of his complaint due to non compliance of the Act. The court, however, denied the motion. In doing so, it did not address the jurisdiction or factual inaccuracies in the notices. Instead, the court issued a statement of reasons providing,

[t]he court heard detailed sworn testimony from competent witnesses, setting forth an unquestionable constant late payment of rent by the [d]efendant. Defendant claimed in the motion for reconsideration that the [n]otice to [c]ure, (i.e. stop paying late), had to be followed by a [n]otice to [q]uit if the pattern continued.

This reasoning is faulty. Under that reasoning[,] a tenant who is late with rent payment each month could never be evicted. Plaintiff's motion is denied for this reason.

This appeal followed.

Defendant contends that the trial court lacked jurisdiction to enter a judgement of possession based upon habitual late payment because plaintiff failed to comply with the procedural requirements of the Act. Specifically, she argues that after plaintiff served her a notice to cease and she made a late rent payment, he failed to give her a written notice to quit followed by a written demand, to relinquish possession of the premises by a date certain, before initiating court action. Plaintiff also contends that the notice to cease was defective because it did not properly inform her of a possible termination of her tenancy and was factually inaccurate. We agree.

The Act provides that no tenant may be removed from premises leased for residential purposes unless good cause is established. N.J.S.A. 2A:18-61.1. It "reflects a public policy barring dispossess actions except upon strict compliance with the notice and procedural requirements of the Act." 224 Jefferson St. Condo. Ass'n v. Paige, 346 N.J. Super. 379, 383 (App. Div.), certif. denied, 172 N.J. 179 (2002). Strict compliance requires adherence to the Act's notice provisions. Ibid.

Relevant to this appeal, the Act authorizes eviction when 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). The landlord bears the burden of proving when the rent was due, when it was received, and that the statutory notices, required by N.J.S.A. 2A:18-61.2, were properly served upon the tenant. N.J.S.A. 2A:18-61.3.

In order for a judgment of possession to be entered based upon habitual late payment of rent, notice of the intended action is crucial. First, a notice to cease must be sent, providing a tenant with notice of the offending conduct and an opportunity to alter that conduct. N.J.S.A. 2A:18-61.1(j); RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709-10 (App. Div. 1988). Second, if the tenant does not cease the late payments, a notice to quit must be served informing the tenant that the tenancy has been terminated and explaining the basis of the termination, thereby requiring the tenant to vacate the premises. See Carteret Props. v. Variety Donuts, Inc., 49 N.J. 116, 123 (1967). A notice to quit must "specify in detail the cause of the termination of the tenancy," N.J.S.A. 2A:18-61.2, meaning it must provide a "particularization" or "explicit or detailed statement" of the tenant's conduct that has caused the termination of the tenancy. Carteret Props., supra, 49 N.J. at 125. It also must be "facially accurate in every substantial respect." Bayside Condos., Inc. v. Mahoney, 254 N.J. Super. 323, 326 (App. Div. 1992).

The timing of a complaint for possession is also critical. The written demand and notice for delivery of possession of the premises due to habitual failure to pay rent on time must be given one month prior to the institution of an action for possession. N.J.S.A. 2A:18-61.2(b).

In sum, a landlord's failure to comply with the notice requirements negates the salutary purpose of the Act, precluding the court's jurisdiction and entry of judgment of possession in favor of the landlord. Bayside Condos., supra, 254 N.J. Super. at 326; 224 Jefferson St. Condo. Ass'n, supra, 346 N.J. Super. at 383-84.

Applying the requirements of the Act, we conclude the Special Civil Part did not have jurisdiction to enter judgment of possession against defendant for habitual late payment of rent. Plaintiff's notice to cease was woefully insufficient and contradictory, and he did not serve a notice to quit.

The notice to cease, dated July 12, 2014, starts off by requesting that defendant "vacate" the apartment, seemingly because of her habitual late payment of rent. It incorrectly states that June rent was paid on June 24 when, as plaintiff testified, June rent was not paid until sometime in July. The notice then inexplicably offers defendant an attached new one-year lease because her original lease expired, which resulted in her tenancy being converted to month-to-month.2 Plaintiff also sets forth the process for entering into a new lease. Further, he reminds defendant that if she does not pay her rent on time, a late fee will be applied. Simply put, the notice failed to inform defendant that she needs to cease making late payments or her lease will be terminated.

Apparently, and for reasons that are not clear from the record, plaintiff served the same notice on defendant on or about September 2, 2014, without any indication of what transpired in the landlord-tenant relationship since service of the notice in July. Two days later on September 4, 2014, and without waiting the one-month grace period to file a complaint for possession of the premises, plaintiff instituted eviction proceedings. More importantly, he did not file a notice to quit, setting forth that the tenancy was being terminated and the reason therefor.

We further conclude the trial court erred in finding that the complaint served as the notice to quit. The Act clearly sets forth that a notice to quit must follow a notice to cease. We find no support for the trial court's reasoning that a complaint for eviction supplants the requirement of a notice to quit. To rule otherwise would circumvent the clear and well- established procedural requirements of the Act. In reaching our determination, we do not preclude plaintiff from seeking eviction in the future, so long as he fulfills the Act's requirements.

Reversed and remanded to the Special Civil Part for entry of an order vacating the judgment for possession and the warrant for removal, and dismissing the complaint.

1 Any spelling and grammatical errors are as they appeared in the notice.

2 Although the record does not include a copy of the lease or state the new lease's term, we assume it was for a one-year period based upon the tenor of the notice.