Recently in Matthew G. Carter Apartments v. Richardson, A-1992-09T3 (November 24, 2010) the Superior Court of New Jersey, Appellate Division, considered an appeal concerning the issue of habitual lateness under New Jersey’s Anti-Eviction Act N.J.S.A. 2A:18-61.1 et seq. (the “Act”).   The relevant section of the act considered by the Court is 2A:18-61.1(j), which permits a landlord to evict a tenant, who “after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.”  Stated more simply, a landlord can evict a tenant for habitual lateness where he or she makes more than one (1) late payment following such written notice.  See A.P. Dev. Corp. v. Band, 113 N.J. 485 (1988).         

In reviewing 2A:18-61.1(j), the Appellate Division determined that a strict mechanical definition of “habitual lateness” under  2A:18-61.1(j) in every case would run counter to the intent of the Act.  Instead, the Court established a rule holding that “each case requires a fact sensitive inquiry into the tenant’s conduct after receipt of the notice to cease” and “the trial judge must assess the evidence as to the time and circumstances of the late payments to determine whether a cause of action for eviction has been proven.”  Notably, the Court did not foreclose the possibility that evictions based on habitual lateness could still be filed in a period as short as two (2) months.  However, given the tone of the Court’s opinion, Landlords who bring such actions are likely to face increased scrutiny and skepticism from the Court and would be wise not to rush to Court as soon as the second late payment following written notice is made.