When a landlord is seeking to terminate a residential tenancy, it is important to select the proper statutory grounds under which to proceed. Under no circumstances may a tenant be legally “evicted” without meeting a statutory prerequisite. Note that the statute may require that one or more notices be served upon the tenant prior to proceeding with court action. With the exception of a tenant’s non-payment of rent, or failure to pay rent after a reasonable increase (which requires a separate notice unto itself), a landlord is required to serve notice upon a tenant prior to the institution of court action. N.J.S.A. 2A:18-61.2 provides the notice requirements. I have set forth below the text of the statute that describes the notice requirements for each section of the Anti-Eviction Act.
NJSA 2A:18-61.2. Removal of residential tenants; required notice; contents; service
No judgment of possession shall be entered for any premises covered by section 2 of this act, (2A:18-61.1) except in the nonpayment of rent under subsection a. or f. of section 2, unless the landlord has made written demand and given written notice for delivery of possession of the premises. The following notice shall be required:
a. For an action alleging disorderly conduct under subsection b. of section 2, or injury to the premises under subsection c. of section 2, or any grounds under subsection m., n., o. or p. of section 2, three days’ notice prior to the institution of the action for possession;
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, or habitual failure to pay rent, one month’s notice prior to the institution of the action for possession;
c. For an action alleging any grounds under subsection g. of section 2, three months’ notice prior to the institution of the action;
d. For an action alleging permanent retirement under subsection h. of section 2, 18 months’ notice prior to the institution of the action and, provided that, where there is a lease in effect, no action may be instituted until the lease expires;
e. For an action alleging refusal of acceptance of reasonable lease changes under subsection i. of section 2, one month’s notice prior to institution of action;
f. For an action alleging any grounds under subsection l. of section 2, two months’ notice prior to the institution of the action and, provided that where there is a written lease in effect no action shall be instituted until the lease expires;
g. For an action alleging any grounds under subsection k. of section 2, three years’ notice prior to the institution of action, and provided that where there is a written lease in effect, no action shall be instituted until the lease expires.
h. In public housing under the control of a public housing authority or redevelopment agency, for an action alleging substantial breach of contract under paragraph (2) of subsection e. of section 2, the period of notice required prior to the institution of an action for possession shall be in accordance with federal regulations pertaining to public housing leases.
The notice in each of the foregoing instances shall specify in detail the cause of the termination of the tenancy and 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.
NOTICE TO CEASE
Where a Notice to Cease is required, it should include as much detail as possible. This serves the dual purpose of putting the tenant on notice of a statutory (or lease) violation, and allows the tenant an opportunity to “cure” the alleged violation. If the tenant ceases the described wrongful conduct, a landlord may not proceed to terminate the tenancy. It is, in effect, a warning notice. By statute, the notice must be served upon the tenant or person in possession either personally at the demised premises, or by leaving it 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.” (See N.J.S.A. 2A:18-61.2 above.)
It is advisable to cover all 3 bases. The worst thing that can happen to a landlord’s case on the day of trial is to get “shot down” for defective service of a notice. If the notices are not correct (legally sufficient) or not properly served, the court must dismiss the landlord’s case. A defective notice or defective service is a jurisdictional defect. If a jurisdictional defect exists, the court must dismiss a plaintiff’s case. Once dismissed, you must start all over. Starting all over means months of additional lost rent. It is important to stress that the acts complained of must be enunciated clearly and in detail. Remember N.J.S.A. 2A:18-61.2 says, “The notice in each of the foregoing instances shall specify in detail the cause of the termination of the tenancy…” The notice may not contain conflicting information. For instance, a Notice to Cease that contains a warning to a tenant not to pay rent late may not contain an additional notice that the tenant is obligated to pay late fees.
NOTICE TO QUIT
A Notice to Quit terminates the tenancy. If the tenant fails to cease the acts complained of in the Notice to Cease, after a reasonable period of time to cure has elapsed, or the statute does not require a cease notice, a landlord may serve a Notice to Quit for the statutory violation. Many landlords are under the mistaken impression that they must wait 30 days after serving a Notice to Cease before serving a Notice to Quit. This is just plain wrong. All that must elapse is a “reasonable” period of time and what is reasonable has to be determined on a case by case basis. The Notice to Quit also must contain a paragraph called “Demand for Possession.” A written demand for possession is required in all cases except for nonpayment of rent. If this language is lacking, the court will lack jurisdiction to hear the case. A Notice to Quit is generally served in the same manner as the Notice to Cease. (See above.) However, it is interesting to note that the statutes are silent as to how a Notice to Quit should be served.
NON-PAYMENT OF RENT
If a tenant fails to pay “rent” when due, a landlord may immediately proceed to commence a summary proceeding to regain possession of the premises. A landlord is under no obligation to wait for its rent, accept payments late, or accept rent in installments. However, if on the “return day” (day of court) the tenant appears and is prepared to pay all “rent” which is due, the landlord must accept the tender and dismiss the case.
N.J.S.A. 2A:18-55. Discontinuance upon payment into court of rent in arrears; receipt
If, in actions instituted under paragraph “b” of section 2A:18-53 of this title, the tenant or person in possession of the demised premises shall at any time on or before entry of final judgment, pay to the clerk of the court the rent claimed to be in default, together with the accrued costs of the proceedings, all proceedings shall be stopped. The receipt of the clerk shall be evidence of such payment. The clerk shall forthwith pay all moneys so received to the landlord, his agent or assigns.
(Case Law has held this statute is applicable to proceedings under the Anti-Eviction Act as well. (N.J.S.A. 2A:18-61.1.))
If a tenant agrees that certain charges constitute “additional” rent (i.e. utilities, damages, late fees) a court will likely enforce the agreement if it does not conflict with any statute, rule, regulation or ordinance such as rent control or U.S. Dept. of Housing & Urban Development regulations (“H.U.D.”).
Like almost any rule, there is an exception to the “no notice rule” for non-payment of rent cases. When filing a non-payment of rent case against tenants receiving (1) social security old age pensions, (2) railroad retirement pensions and (3) other government pensions, these tenants are afforded a 5 day grace period to pay their rent, presumably because their checks are sent to them on or about the first day of each month. (copy of the statute appears supra.) Likewise, tenants who participate in a H.U.D. subsidy program are entitled to the additional protection of federal laws that require a written notice be served upon the tenant prior to the filing of any action for eviction.
THE LANDLORD REGISTRATION ACT
By law, every landlord of a dwelling, except owner-occupied premises with not more than two rental units, must file with the clerk of the municipality in which the residential property is situated, or with the Bureau of Housing Inspection in the Department of Community Affairs, a certificate of registration. In court, a judgment for possession cannot be entered if the landlord has not complied with this registration requirement. Non-receipt of the statement is almost a standard defense by tenants who are represented by competent counsel to avoid an immediate judgment of possession. The court has the authority to stay the proceedings for 90 days to allow the landlord to come into compliance.
A landlord is well advised to consult competent counsel when seeking to properly terminate a tenancy.
At Hanlon Niemann we have experienced, qualified attorneys and para professional staff representing Landlords statewide who appear in the Landlord Tenant section of the New Jersey Superior Court every week. Let our experience protect you. Contact Christopher J. Hanlon, Esq. at chanlon@www.hnwlaw.com, Phone (732) 863-9900 Ext. 109, or Fredrick P. Niemann, Esq. at fniemann@hnlawfirm.com, Phone (732) 863-9900 Ext. 105.