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New Jersey Law Regarding Evictions for Habitually Late Payment of Rent

Under the New Jersey Statutes, a residential tenant who is habitually late in paying monthly rent to the landlord may be evicted. Section 2A:18-61.1(j) of the New Jersey Statutes states:

The person, after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.

The eviction may only be based on the late payments that occur after there has been a written notice to cease. Thus, the mere fact that a tenant has been late is not enough unless the landlord serves a written notice on the tenant demanding that the tenant cease the rent payments. There must be further rent payments - after service of the notice to cease, for there to be a cause of action to evict.

The New Jersey courts have consistently held that there must be more than one late rent payment after the service of the landlord's written demand, and that a single late rent payment does not give rise to a cause of action to evict. Ivy Hill Park, Section III v. Abutidze, 371 N.J. Super. 103 (App. Div. 2004).

In addition, prior to bringing an eviction complaint, the landlord should carefully assess whether the tenant will be able to demonstrate a "legal justification" for the late payments. As discussed in greater detail below, the landlord's failure to adequately maintain the subject premises may, under some circumstances, constitute legal justification that tenant may cease upon as an affirmative defense.

Tenants' defenses in eviction cases for late payment of rent:

There are a variety of potential defenses available to a tenant who is faced with an eviction proceeding based on the habitually late payment of rent. The appropriateness of a particular defense or argument is dependant upon the factual circumstances of each particular case.

(i) Landlord's Failure to Maintain Premises:

A tenant may raise, as an affirmative defense, a landlord's failure to maintain the rented premises in a habitable condition (known as the Marini defense). In Berzito v. Gambino, 63 N.J. 460, 308 A.2d 17 (1973), the New Jersey Supreme Court held that this defense was available to tenants as a defense to late payment of rent:

[T]he covenant on the part of a tenant to pay rent, and the covenant - whether express or implied - on the part of a landlord to maintain the demised premises in a habitable condition are for all purposes mutually dependent. Accordingly in an action by a landlord for unpaid rent a tenant may plead, by way of defense and set off, a breach by the landlord of his continuing obligation to maintain an adequate standard of habitability.

Id. at 469, 308 A.2d 17.

In 279 4th Ave. Management v. Mollett, 386 N.J. Super. 31 (App. Div. 2006), the Court noted that the language of the statute provided for the eviction of the tenant only where the late payments are "without legal justification." Id. (citing N.J.S.A. 2A:18-61.1(j). Accordingly, the Court reasoned that where rent is withheld as a result the Landlord's failure to provide an essential service, such as heat, there may be a legal justification that defeats the landlord's eviction case. However, in order to take advantage of this affirmative defense, the tenant must stablish that "each occasion of late payment was justified." Id. at 39. 

(ii) Dispute as to which Day the Rent Payment is Due:

A tenant may also seek to defend against an eviction based on habitually late payment of rent by raising an affirmative defense that the rent was not due on the particular day of the month claimed by the landlord. The likelihood of succeeding with this defense is greater in cases involving month-to-month tenants, who are not bound by written lease agreements that specifically set forth the due dates for rental payments.

In the Berzito case, the Court noted that there was a disagreement between the tenant and the new landlord as to the date on which the rent was due. The Court ruled that under such circumstances:

Where there is a disagreement between a new landlord and a long-time tenant over when rent is due, as there was here, the landlord should make some attempt to resolve the dispute before charging the tenant with habitual late payment of rent.

Id. at 37-38.

(iii) Equity:

The term "equity" may, perhaps, best be described as an inquiry by the Court into what result would be fundamentally fair under the circumstances presented by the parties. In Berzito, the Appellate Division noted that the New Jersey courts had repeatedly "recognized the role of equitable considerations in dispossess cases." Id. at 39. The Court in Berzito noted that the tenant's exceedingly difficult financial circumstances and other compelling personal problems would have made it hard for her to find alternative housing. The Court also emphasized that the tenant had always been willing to pay the rent, and that the sole issue in dispute was the precise day during the month on which payment was due. Id. Based on the foregoing, the Court held that the appropriate remedy was not eviction, and that the trial court below should have devised a solution that was less drastic the dispossessing the tenant from her home. In essence, the Court ruled that the remedy of eviction was too harsh, and would have been unfairly punitive to the tenant.

Obviously, the likelihood of succeeding with an equitable defense will depend upon the specific circumstances of each case. The good faith exercised by the tenant in the Berzito case was certainly one of the crucial factors that motivated the Court. Accordingly, a tenant who is unjustifiably withholding rental payments or otherwise presents to the court with "unclean hands" is exceedingly unlikely to succeed with an equitable defense to eviction.


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