Evictions Based on Multiple Grounds
In New Jersey, residential eviction complaints generally fall into one of two categories, based on the nature of allegation for which the eviction was filed. The most common category of allegation is non-payment of rent. However, in New Jersey, the Statute governing evictions sets forth 17 additional reasons for which a residential tenant can be evicted. Evictions based on reasons other than non-payment of rent are generally referred to as “Notice” cases, because they all require the landlord to serve certain notices upon the tenant prior to filing the eviction complaint. These grounds for eviction include disorderly conduct, destruction to rented premises, breach of lease covenants and a variety of other causes.
Our clients periodically ask us to file evictions in which the allegations include non-payment of rent as well as another allegation that would require the service of Notices prior to filing an eviction. Certainly, the complaint based on non-payment is preferred over the Notice case, because the non-payment case will guarantee the earliest possible Court date. Additionally, allegations of non-payment are generally easier to prove than Notice type allegations, which often require testimony of a neighbor, or a superintendent, who personally observed the alleged misconduct.
Unfortunately, the drawback of the non-payment of rent complaint is that it will be dismissed upon a payment of all the rent that is due and owing. This rule is consistent with the legislative intent of the Anti-Eviction Act, which generally provides that tenants should be afforded an opportunity to cure any alleged misconduct in advance of eviction. Therefore, if the other allegations against the tenant are severe, and the amount of rent owed is not large enough to be insurmountable, landlords may not want to risk filing only a non-payment matter, due to the possibility that it would be dismissed upon payment of the arrearage.
Notice cases, on the other hand, very often require a warning notice, called a “Notice to Cease,” followed by a termination notice, called a “Notice to Quit” prior to filing the eviction action. The timing and content of the notices will vary greatly depending on the cause for eviction, but for most evictions based on Notices, the timing required on for the Notices will add anywhere from 3 days to 3 months to the amount of time that an eviction action will take to complete.
Accordingly, in cases where both types of allegations exist, and where the landlord is concerned that the non-payment of rent component of the complaint would be dismissed due to payment of the rent arrearage, we recommend filing the eviction based on non-payment of rent, and simultaneously, serving the tenant with the initial Notice. In many cases, the second Notice (the Notice to Quit) would then have already been served by the time the non-payment of rent case is scheduled. In these cases, if the non-payment of rent action results in a Judgment for Possession (because the tenant does not pay the rent that is due by the day of Court), there would be no reason to proceed at that point with an eviction based on the Notices. If, however, the non-payment of rent matter is dismissed because the rent that is due is paid by the day of Court, the landlord will have already served the requisite Notices, thus reducing the time that the landlord needs to wait at that point before filing the eviction based on the Notices.
Checking Both Boxes is Discouraged
Finally, we note that the model form for the eviction Complaint lists both “non-payment” and “other” as reasons for eviction. We strongly discourage landlords from filing a complaint in which both boxes are checked. It is simply not consistent for the landlord to allege that there is unpaid rent, which would need to be paid in order for a tenant to avoid eviction, and simultaneously allege that the landlord tenant relationship should be terminated based on a Notice to Quit. As we have seen in the matter of Carteret Properties v. Variety Donuts, acceptance of any rent after the termination date set forth in the Notice to Quit would constitute a waiver of that Notice.
Should you have any questions regarding the preparation of pre-suit notices, please feel free to contact our office.