THE VILLAGE APARTMENTS v. DAVID MACALL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1724-19T3
THE VILLAGE APARTMENTS,
Plaintiff-Respondent,
v.
DAVID MACALL,
Defendant-Appellant.
_____________________________
Argued September 21, 2020 – Decided December 30, 2020
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. LT-008654-19.
David Macall, appellant, argued the cause pro se.
David A. Capozzi argued the cause for respondent.
PER CURIAM
This appeal arises from a residential landlord-tenant dispute over whether
plaintiff, Village Apartments, properly raised its tenant's rent by $35 per month.
The tenant in question, defendant David Macall, appeals from an order1 granting
judgment of possession in favor of the landlord for nonpayment of rent pursuant
to N.J.S.A. 2A:18-61.1(f). Macall remitted the unpaid rent the same day and
retained possession of the apartment. After carefully considering the record in
light of the applicable legal principles and arguments of the parties, we remand
this matter to the trial court to determine whether Village Apartments properly
effectuated service of the notice to quit. In all other respects, we affirm the trial
court's order.
I.
We presume the parties are familiar with the circumstances leading to this
appeal. We therefore only briefly recount those facts relevant to the issues
before us. Macall has been a residential tenant since March 2006. In each of
the three years preceding this litigation, Village Apartments sent Macall notices
of rent increases. Specifically, in December 2016, Village Apartments sent
Macall a document captioned "Notice to Quit and Offer of New Tenancy." That
notice provided that "Effective 03/01/2017 and extending through 02/28/2018
1
Notwithstanding that the order was signed and dated November 25, 2019, the
record indicates that the trial court issued its decision on the date of trial,
November 14, 2019.
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2
the new rental amount shall be in the amount of $1090.00 per month." Macall
signed and returned the December 2016 notice.
In December 2017, Village Apartments sent Macall an almost identical
document also captioned "Notice to Quit and Offer of New Tenancy." This
second notice provided that, "Effective 03/01/2018 and extending through
02/28/2019 the new rental amount shall be in the amount of $1120.00 per
month." That represented a 2.75 % increase in rent. This time, Macall did not
execute the December 2017 document. However, he remained in possession of
the property and paid the increased rent.
On December 13, 2018, Village Apartments sent Macall another nearly
identical document, this time captioned "Lease Renewal 03/01/2019 –
02/29/2020."2 This third document in the series of annual notices lies at the
heart of the present dispute. Using the same language as in the previous two
notices, the December 2018 document stated, "Your present lease expires on
2
As we discuss in Section II, infra, Macall for the first time on appeal disputes
the method by which plaintiff sent him the December 2018 document. So far as
we can tell, Macall maintains that this document was made available to him only
through his use of an internet application. Although it is not disputed that Macall
read the document and decided not to pay the rent increase, neither Macall's
brief nor the record before us explain how he was alerted that the December
2018 document had been issued or what steps were needed for him to access and
read it.
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02/28/2019. Effective 03/01/2019 and extending through 02/29/2020 the new
rental amount shall be in the amount of $1155.00 per month." That represented
a 3.13% rate increase. Additionally, like the notices sent in 2016 and 2017, the
December 2018 document stated: "Please note that your lease renews
AUTOMATICALLY for the renewal terms above, unless written notice to
vacate is received at the Leasing Office by: 12/31/2018."
Macall did not sign and return the December 2018 notice. This time, he
remained in possession of the property but did not pay the increased rent.
Rather, he continued to pay monthly rent at the rate fixed in the December 2017
notice. That prompted Village Apartments to initiate a summary dispossess
action based on non-payment of rent. The sole remedy sought in the complaint
was possession of the property.
After a hearing, the trial court concluded that the December 2018
document was a valid notice to quit and created a new tenancy at the increased
rent amount. The court reasoned that by holding over, Macall had created a new
tenancy and therefore was obligated either to pay the increased rent or vacate
the premises. The court thereupon granted judgment of possession to Village
Apartments for nonpayment of rent pursuant to N.J.SA. 2A:18-61.1(f). That
same day, in order to prevent issuance of a warrant of eviction, Macall paid the
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arrearages outstanding for seven months based on the $35 per month rent
increase. He continues to occupy the leased premises.
II.
We first address Macall's contention that Village Apartments did not
properly serve the notice to quit. Macall claims that he was provided access to
this notice only through "an unsecure internet app," and that Village Apartments
failed to serve the notice in accordance with N.J.S.A. 2A:18-61.2, which
requires service either in person, upon a household family member, or through
regular and certified mail. 3 Village Apartments failed to respond substantively
to this point on appeal, arguing only that Macall waived this argument by failing
to raise it to the trial court, and that we should decline to consider it. Although
Macall did not raise this matter at trial, the issue of defective service speaks
directly to the jurisdiction of the trial court. See Nieder v. Royal Indem. Ins.
Co., 62 N.J. 229, 234 (1973) (holding an appellate court may decline to address
an issue not raised to the trial court "unless the questions so raised on appeal go
to the jurisdiction of the trial court[.]") (quoting Reynolds Offset Co., Inc. v.
3 N.J.S.A. 2A:18-61.2 provides in pertinent part that notice, "shall be served
either personally upon the tenant or lessee or such person in possession by giving
him a copy thereof, or by leaving a copy thereof at his usual place of abode with
some member of his family above the age of 14 years, or by certified mail; if
the certified letter is not claimed, notice shall be sent by regular mail."
A-1724-19T3
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Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). We therefore address
Macall's claim that the notice to quit was not properly served.
The Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, "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. 2002). This strict or "punctilious
compliance" applies to all provisions in the Act, even in instances where the
landlord acts in good faith or the tenant suffers no appreciable prejudice. Ibid.
(citing Weise v. Dover Gen. Hosp., 257 N.J. Super. 499, 504 (App. Div. 1992)).
Accordingly, we have recognized that "the statute leaves no latitude for a
judicial construction which excuses failure to give the specified notice." Vander
Sterre Bros. Constr. v. Keating, 284 N.J. Super. 433, 438 (App. Div. 1995).
"Absent strict compliance with the requirements of the Act, a court is without
jurisdiction to entertain a summary dispossession action." Id. at 440 (quoting
Bayside Condos., Inc. v. Mahoney, 254 N.J. Super. 323, 325 (App. Div. 1992)).
Because the issue of proper service of the notice to quit was raised for the
first time on appeal, the trial court made no findings on the matter. Macall's
argument that service of the notice to quit was delivered only through some form
of internet application is neither supported by corroborating evidence on record
A-1724-19T3
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nor denied by Village Apartments in its responsive brief. Given the scant
evidence on record addressing the issue, we decline to exercise our original
factfinding authority. See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 301
(App. Div. 2009) (holding that "our 'original factfinding authority must be
exercised only with great frugality and in none but a clear case free of doubt.'" )
(quoting Tomaino v. Burman, 364 N.J. Super. 224, 234–35 (App. Div. 2003)).
Accordingly, we are constrained to remand this case to the trial court to make
findings and determine whether the notice to quit was properly served in
accordance with N.J.S.A. 2A:18-61.2
III.
Although we remand to the trial court to determine the issue of compliance
with the statutory service requirement, in the interest of according finality to this
appeal, we nonetheless address Macall's other contentions to the extent that they
merit discussion.
Macall contends the trial court erred by inferring that Macall entered an
implied agreement to waive the protective requirements of the Anti-Eviction
Act. Macall's argument misconstrues the governing case law. In Harry's
Village, Inc. v. Egg Harbor Twp., 89 N.J. 576 (1982), our Supreme Court held
that "[w]hen a landlord gives a proper notice to quit and a notice of rent increase,
A-1724-19T3
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a tenant, by holding over, creates a new tenancy at the increased rental." Id. at
583 (citing Stamboulos v. McKee, 134 N.J. Super. 567, 571 (App. Div. 1975)).
In the case before us, the trial court properly determined that Macall remained
in possession of the property after receiving a valid notice to quit, thereby
consenting to the rental increase.
Macall next contends that a three-month notice period is required for a
notice to quit. 4 We disagree. The law requires a one-month notice period in
these circumstances. See Harrison Assocs. v. Rent Leveling Bd. of Franklin
Twp., Somerset Cnty., 215 N.J. Super. 1, 3, 6-7 (App. Div. 1986) (holding the
one-month notice requirement for a notice to quit prescribed in N.J.S.A. 2A:18-
61.2(e) also applies to a notice of rental increase under N.J.S.A. 2A:18-61.1(f)).
Even if we applied a three-month notice period, Macall cannot prevail as he
received notice of the rental increase in December 2018. Village Apartments
4
Macall appears to rely on N.J.S.A. 2A:18-56, which is not part of the Anti-
Eviction Act and does not apply to the circumstances presented in this case.
That statute reads in relevant part, "No judgment for possession in cases
specified in [N.J.S.A. 2A:18-53(a)] shall be ordered unless: (a) [t]he tenancy, if
a tenancy at will or from year to year, has been terminated by the giving of
[three] months' notice to quit . . . ." N.J.S.A. 2A:18-56. However, N.J.S.A.
2A:18-53 explains that this statutory framework applies "[e]xcept for residential
lessees and tenants included in section [two] of this act," which refers to the
Anti-Eviction Act at N.J.S.A. 2A:18-61.1.
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did not initiate the summary dispossess action until ten months later in October
2019.
Macall also claims the December 2018 document was not a valid notice
to quit. We agree with the trial court's determination that the substance of the
document met all legal requirements. The notice stated the reason for
termination (the end of the lease period), indicated the parties were in a landlord -
tenant relationship, stated the premises were to be vacated by a certain date, and
informed Macall that his right to possession would terminate on that date. See
Harry's Village, 89 N.J. at 585. We therefore see no reason to disturb the trial
court's conclusion that the December 2018 document was a valid notice to quit,
notwithstanding it was not captioned as such.
We next address Macall's contention that the trial court erred by denying
his motion to remove the case to the Law Division. Macall argues this case
presents important legal issues. He also alleges that Village Apartments brought
the summary disposition action against him as "retaliation for [his] assertion of
legal rights in connection with the most recent renewal." Macall contends this
entitles him to a jury trial. There is no evidence in the record, however, to
support Macall's retaliation claim.
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We believe this matter was properly heard in the Special Civil Part.
N.J.S.A. 2A:18-60 provides:
At any time before an action for the removal of a tenant
comes on for trial, either the landlord or person in
possession may apply to the Superior Court, which
may, if it deems it of sufficient importance, order the
cause transferred from the Special Civil Part to the Law
Division.
Furthermore,
In general, a motion for transfer should be granted
whenever the procedural limitations of a summary
action (other than the unavailability of a jury trial)
would significantly prejudice substantial interests
either of the litigants or of the judicial system itself,
and, because of the particular facts and circumstances
of a specific case, those prejudicial effects would
outweigh the prejudice that would result from any delay
caused by the transfer.
[Twp. of Bloomfield v. Rosanna's Figure Salon, Inc.,
253 N.J. Super. 551, 563 (App. Div. 1992).]
An application to transfer a tenancy proceeding is within the discretion of
the trial court. Master Auto Parts, Inc. v. M. & M. Shoes, Inc., 105 N.J. Super.
49, 53 (App. Div. 1969) (citing Carteret Properties v. Variety Donuts, Inc., 49 N.J. Super. 116, 130 (1967)). In Twp. of Bloomfield, we identified five factors
to channel the exercise of that discretion. 253 N.J. Super. at 562–63. Of those
five factors, only one is applicable here: "[t]he complexity of the issues
A-1724-19T3
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presented, where discovery or other pretrial procedures are necessary or
appropriate[.]" Id. at 562.5
In Lopez v. Medina, the Law Division addressed the transfer of a summary
dispossess action from landlord-tenant court. 262 N.J. Super. 112 (Law Div.
1992). In that case, the landlord alleged non-payment of rent and failure to
surrender the premises after a notice terminating the tenancy. Id. at 115. The
court concluded that "summary dispossess actions are simple, and failure to
transfer them to and consolidate them in the Law Division will not prejudice the
parties nor produce an unjust result." Id. at 122. In reaching that conclusion,
the court aptly recognized, "[s]ummary dispossess actions in the Special Civil
5
The remaining factors are:
"[t]he presence of multiple actions for possession
arising out of the same transaction or series of
transactions, such as where the dispossesses are based
upon a concerted action by the tenants involved; [t]he
appropriateness of class relief; [t]he need for
uniformity of result, such as where separate
proceedings are simultaneously pending in both the
Superior Court and the County District Court arising
from the same transaction or set of facts, and [t]he
necessity of joining additional parties or claims in order
to reach a final result."
[Id. at 562-63 (citing Morrocco v. Felton, 112 N.J.
Super. 226, 235–36 (Law Div. 1992)).]
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Part are statutory proceedings intended to accord landlords an expeditious,
inexpensive, uncomplicated and effective means of repossessing leased
premises, thereby avoiding delays inherent in common law ejectment actions."
Ibid.
In the case before us, as in Lopez, the substantive issues are not complex
and do not require pretrial discovery. By any objective measure, this case is a
routine action for non-payment of rent brought under N.J.S.A. 2A:18-61.1(f). It
is entirely appropriate that such disputes be heard by judges with experience and
expertise in resolving landlord-tenant controversies. Transferring such matters
to the Law Division could deny a landlord duly owed rent and possession of the
premises for a prolonged period. Macall, moreover, has suffered no prejudice
by having this dispute heard in the Special Civil Part. See Twp. of Bloomfield,
253 N.J. Super. at 563 (explicitly recognizing that "unavailability of a jury trial"
is not a procedural limitation that would significantly prejudice the substantial
interests of a litigant).
IV.
In sum, we affirm the trial court's determinations as to all of the issues
that were raised at trial, and remand only for the trial court to determine whether
the notice to quit was properly served in accordance with N.J.S.A. 2A:18-61.2.
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We leave to the discretion of the trial court whether to require submission of
certifications, affidavits, or other documents, or convene an evidentiary hearing
to resolve factual disputes. If the trial court determines that the notice to quit
was not properly served, it shall dismiss the complaint for summary
dispossession without prejudice. As noted, in all other respects, we affirm the
order granting judgment of possession to Village Apartments for nonpayment of
rent.
Affirmed in part and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
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