Two Late Rent Payments Following a Notice to Cease Were Not Sufficient to Establish That Tenant "Habitually … Failed to Pay Rent."

In Matthew G. Carter Apartment v. Kathy Richardson, No. A-1992-09T3 (N.J. App. Div., Nov. 24, 2010), the Appellate Division overturned the decision of the trial court and held that the landlord did not establish the statutory grounds for eviction where the Tenant was twice late paying rent following a notice to cease.  Under N.J.S.A. 2A:18-61.1(j), grounds for eviction are established when a tenant, following a Notice to Cease, "has habitually and without legal justification failed to pay rent which is due and owing."  The court held that the question of whether a tenant has "habitually" failed to pay rent cannot be determined "mechanically" and the court must take into consideration the totality of circumstances.  Because the tenant paid her rent in a timely fashion in nine of the next eleven months and was late by a total of only ten days during the eleven month period, the court concluded that a "continuing course of conduct" was not established by the landlord.  Accordingly, the court held that the tenant was not "habitually" late under the statute.

 
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