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Montgomery Gateway East I v. Herrera

Decided: December 30, 1992.

MONTGOMERY GATEWAY EAST I, PLAINTIFF-RESPONDENT,
v.
ANA PALAU HERRERA, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County.

Michels, Bilder and Baime. The opinion of the court was delivered by Bilder, J.A.D.

Bilder

This is an appeal from an order of the Special Civil Part granting landlord's judgment for possession in a residential eviction action for failure to pay rent. See N.J.S.A. 2A:18-61.1(a).

Plaintiff is the owner of a multi-family high rise apartment in Jersey City. Defendant Ana Herrera has been a tenant since 1982. She resides there with her two sons. Since at least 1986

her rent has been subsidized by the federal Department of Housing and Urban Development pursuant to the National Housing Act, 12 U.S.C.A. 1701 et seq. In general terms, the overall rent has been set at the market rate, but defendant has only had to pay an amount equal to 30 percent of her adjusted monthly income, or, when she was on welfare, the amount designated by the welfare agency to meet the housing needs of herself and her children. 42 U.S.C.A. 1437a(a)(1). The balance, referred to as a Section 8 payment, is met by HUD. 42 U.S.C.A. 1437f(c)(3)(A). The landlord is responsible for determining eligibility and the amount of the tenant's portion of the rent. 42 U.S.C.A. 1437f(d)(1); 24 C.F.R. 880.603(b). Plaintiff was required to recompute defendant's portion of the rent, once a year or whenever a change occurred in the family income. 24 C.F.R. 880.603(c).

On April 1, 1991, plaintiff instituted the instant summary dispossess action under the Anti-Eviction Act based upon a nonpayment of rent. N.J.S.A. 2A:18-61.1(a). In the complaint, it alleged a written lease for a one-year period commencing June 1, 1989, a monthly rental of $204, and unpaid rent totaling $2,818. At the trial, defendant denied the correctness of the rental; contested the amount claimed due; and contended that the existence of a renewal lease for a one-year period commencing June 1, 1991, whose rent was current, barred removal for nonpayment of rent under an expired lease, i.e., that the nonpayment of rent provisions of N.J.S.A. 2A:18-61.1(a) refer only to a current lease; and that by entering into the new lease, plaintiff waived the default (although not the right to collect the rents).*fn1

Following a plenary hearing, the trial Judge accepted plaintiff's calculations as to defendant's portion of the rent, found a balance due with respect to unpaid rental for the period October

1989 through March 1991 to be $1,403, rejected defendant's construction of the statute and claim of waiver, and ordered the entry of a judgment for possession. Conditioned upon a continued payment of the rental on the current lease, we stayed the warrant of removal pending appeal.

On appeal, defendant repeats her contention that the default under the expired lease cannot be "good cause" under the Act; that by entering into a new lease, plaintiff waived its right to treat the old nonpayments of rental as a default; and that the evidence does not support the trial Judge's finding as to the amount of rent due from defendant.

An examination of the record persuades us of a number of separate reasons why the decision below must be reversed.

First, we find that the record does not support the trial Judge's findings either as to the defendant's share of the rental during the period from October 1989 through May 1990 or as to her accumulated unpaid rent ...


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