Late payment of rent is one of the more common landlord complaints. Late-paying tenants interfere with their landlord’s bottom line and create an atmosphere of disrespect toward the landlord’s investment. The NJ Anti-Eviction Act allows a Landlord to evict a tenant for “habitual late payment of rent” 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). Although the law seems clear, it’s easy to say a tenant pays rent habitually late; evicting for late payments is more difficult proposition.
When a NJ tenant pays the rent late, the first step is to determine whether the late payment lacks legal justification. This means a tenant cannot be evicted for late payments if the tenant is withholding the rent due to habitability problems with the apartment ( “Marini” issues). Assuming the tenant does not have a legal justification for the late payment, the next step is determining whether the rent is paid “habitually” late.
At a minimum, NJ landlord-tenant law requires that “habitual late payment” means more than one late payment after serving the Notice to Cease. 534 Hawthorne Avenue Corp. v. Barnes, 204 N.J. Super. 144, 148 (App. Div. 1985). Before being evicting, the tenant must continue to pay late after the Notice to Cease. Landlords should be aware that eviction for late payment is more than just two late rent payments after a Notice to Cease.
In Matthew G. Carter Apartments v. Richardson the Court made clear that “habitual late payment” is more than just two late rent payments; the late rent payments must be “habitual.” 417 N.J. Super. 60, 72 (App. Div. 2010). Using the definition of “habit” found in the New Jersey Rules of Evidence, the court found a tenant did not “habitually” pay rent late when the tenant paid rent late twice in the eleven months following the Notice to Cease.
The court reasoned that a Notice to Cease for habitual late payment is a way of giving a tenant an “opportunity to change [their] pattern of late payments of rent.” Thus, an eviction case for habitual late payment “requires a fact-sensitive inquiry into the tenant’s conduct after receipt of the Notice to Cease.”
Evicting a tenant for habitual late payment of rent is a hyper-technical process. A single mistake in the service or timing of the notices required by the Anti-Eviction Act can lose the case and force a landlord to start over. This delay is as costly as it is frustrating. Landlords seeking to evict a tenant for continual late payments would do well to follow the law strictly.
Offit Kurman practices landlord tenant law throughout New Jersey assisting landlords and tenants in avoiding unnecessary and costly delays. The firm’s geographic practice area includes: New Jersey (Jersey City, Hoboken, Bayonne, Hudson County, Newark, Essex County, Woodbridge, Middlesex County, Paterson, Passaic County, Bergen County). The Firm invites you to visit the “Promises” page for our new way of doing business