Saturday, November 27, 2010
New Jersey Rule of Evidence 406 provides that
(a) Evidence, whether corroborated or not, of habit or routine practice is admissible to prove that on a specific occasion a person or organization acted in conformity with the habit or routine practice.
(b) Evidence of specific instances of conduct is admissible to prove habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice.
Meanwhile, N.J.S.A. 2A:18-61.1(j) provides that
No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes...except upon establishment of one of the following grounds as good cause:
j. The person, after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.
So, what does the definition of "habit" in New Jersey Rule of Evidence 406 tell us about the definition of "habitually" under N.J.S.A. 2A:18-61.1(j)? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in Matthew G. Carter Apartments v. Richardson, 2010 WL 4739934 (N.J.Super.A.D. 2010), the answer is "a great deal."In Richardson,
In January 2009, plaintiff served defendant with a "notice to cease," alleging she had paid her rent late in February and July 2008, and in January 2009. The notice to cease further provided that "[u]nder New Jersey law, if [defendant] pa[id][her] rent late two more times...[plaintiff] m[ight] terminate [her] tenancy and evict [her] for habitual late payment for [sic] rent." The notice to cease further advised defendant that plaintiff would continue to accept her rent even if paid late, but that it "d[id] not go along with the fact that [she][was] paying it late." This non-waiver of plaintiff's eviction rights was more fully set forth in the last paragraph of the notice to cease.
Defendant tendered her rent in a timely fashion every month from February to May 2009. When she paid her June rent on June 18, plaintiff served her with a "1st Violation" of the notice to cease on June 26, reiterating that it was accepting the late rent but not waiving any rights to evict defendant in the future....On July 1, plaintiff tendered a new lease to defendant, which all parties executed on July 6. This was the first “new lease” defendant received since the inception of her tenancy in 1995. Defendant paid her August rent on August 12, two days after the grace period provided in the new lease. Plaintiff served defendant with a "2nd violation" of the notice to cease on August 14, again reserving its right to evict defendant.
On September 9, plaintiff served defendant with a notice to quit and demand for possession, terminating defendant's tenancy effective November 1....On November 3, plaintiff filed its complaint seeking possession pursuant to N.J.S .A. 2A:18-61.1(j).
The judge concluded that the plaintiff had established the statutory grounds for eviction and entered the judgment for possession. In reversing, the Superior Court of New Jersey, Appellate Division, held that
"Habitual" is defined as "customary, usual." Black's Law Dictionary 640 (5th ed.1979). Our Rules of Evidence also provide guidance as to the plain meaning of "habit." N.J.R.E. 406(b) permits the proof of "habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice." "A habit...is the person's regular practice of responding to a particular kind of situation with a specific type of conduct."...As used in N.J.S.A. 2A:18-61.1(j), the Court has said that whether conduct is "'habitual' is a function of time and circumstances."...
Applying these basic principles, we conclude that plaintiff failed to demonstrate that defendant had, after receipt of the notice to cease, "habitually" paid her rent in an untimely fashion. The notice to cease was served on defendant on or about January 21, 2009. Thereafter, she paid her rent in a timely fashion in nine of the next eleven months prior to the December 15, 2009 trial. Defendant paid her rent late in June (eight days after the grace period), and in August (two days after the grace period), i.e., she was late by a total of ten days during the eleven-month period. The statute “requires a continuing course of conduct by the tenant over a period of time...."...We cannot conclude on these facts that after the notice to cease was served, defendant was "habitually" late in her rental payments.
Matthew G. Carter Apartments v. Richardson
--- A.3d ----, 2010 WL 4739934