The opinion of the court was delivered by SKILLMAN, J.A.D.
Defendant Ellen Gunn entered into a lease of an apartment from plaintiff for a term running from August 16, 1986 to July 31, 1987.
On April 29, 1987, plaintiff sent a notice to Gunn stating:
On May 12, 1987, a staff attorney with Somerset Sussex Legal Services wrote a letter to plaintiff on behalf of Gunn, stating that she denied violating the terms of her lease.
On June 19, 1987, plaintiff wrote a letter to Gunn's attorney stating:
Defendants did not vacate the premises and on August 7, 1987 plaintiff filed this tenancy action. The complaint alleged that "[d]efendants have breached their lease with plaintiff in that they have maintained their apartment in a unclean and uninhabitable condition, have engaged in the consumption of alcoholic beverages on the balcony of their apartment and have further caused loud and profane language to be shouted in
The case was tried in the Special Civil Part on August 24 and 25, 1987. At the beginning of the trial, plaintiff's counsel asked the court to decide whether plaintiff's letters of April 29, 1987 and June 19, 1987 satisfied the statutory requirements for notice of alleged violations of a landlord's rules and regulations. The trial court apparently ruled that the letters provided adequate notice and directed plaintiff to present its evidence in support of the complaint. This evidence consisted of testimony by plaintiff landlord's representative and various tenants who alleged that defendants' apartment was filthy and had caused roaches to infest the building, that foul odors emanated from defendants' apartment, that defendants were noisy, and that they consumed alcoholic beverages on their balcony and shouted obscenities. Gunn testified for the defendants and denied all of these allegations.
Following the presentation of evidence by the parties, the trial court stated that it had examined a court file in a case brought by the Division of Youth and Family Services against Gunn, in order to resolve the factual disputes between the parties. The court took judicial notice of certifications by two social workers contained in this file. These certifications indicated that defendants' apartment was extremely dirty and that on one occasion at least one hundred dead cockroaches had been found on the floor. The court found that these certifications were "relevant to the question whether or not Susan [sic] Gunn was being truthful when she testified to the Court that she's an immaculate housekeeper." The court then proceeded to find plaintiff's witnesses to be more credible than Gunn. Thus, the court concluded that defendants had violated the landlord's rules and regulations incorporated in their lease and directed that a judgment of possession be entered. Defendants appealed, and the trial court granted a stay pending appeal. We reverse.
One statutorily permissible grounds for eviction is that a tenant "... has continued, after a written notice to cease, to substantially violate or breach any of the landlord's rules and regulations governing said premises, provided such rules and regulations are reasonable and have been accepted ... by the tenant." N.J.S.A. 2A:18-61.1(d). N.J.S.A. 2A:18-61.2(b) also requires "[f]or an action alleging continued violation of rules and regulations under paragraph d ... one month's notice prior to the institution of the action for possession." Thus, four statutory preconditions must be satisfied before a dispossess action can be filed for a tenant's failure to comply with a landlord's rules and regulations: (1) the tenant must violate the landlord's rules and regulations; (2) the landlord must give the tenant a notice to cease the violations; (3) the tenant must continue to violate the rules and regulations after receipt of the notice to cease; and (4) the landlord must give the tenant a notice of termination one month before filing suit.
We reverse the judgment of possession entered in this case because plaintiff failed to serve a notice to cease upon defendants and thus failed to provide them with the opportunity to conform with plaintiff's rules and regulations. The April 29, 1987 letter to Gunn alleged various violations of the landlord's rules and regulations and then flatly stated that "your lease will not be renewed on its expiration date, July 31, 1987." The
Although plaintiff's failure to provide defendants with a notice to cease requires reversal without more, we also find it necessary to comment upon the trial court's reliance upon certifications filed in another case in reaching its decision in this case. These certifications were not marked into evidence and are not included in the defendants' appendix. However, it is clear from the court's opinion that the certifications were signed by social workers who had visited defendant's apartment and allegedly found it to be extremely dirty. It is also clear that the court considered these certifications in order to resolve the critical factual dispute between the parties regarding the condition of defendants' apartment, even though the persons who signed the certifications did not appear at the hearing and therefore were not subject to cross-examination. Hence, the certifications were hearsay and inadmissible under Evidence Rule 63.
The trial court stated that it could consider the contents of these certifications pursuant to Evidence Rule 9(2)(b), which permits a court to take judicial notice of "records of the court in which the action is pending." This reflects a fundamental misunderstanding of judicial notice. A court may take
For the reasons previously stated, the judgment of possession is reversed and the case is remanded to the trial court for entry of an order dismissing the complaint.