This is the essence of a letter opinion written on February 11, 1993.
Plaintiff, Housing Authority of the City of Newark ("Authority"), entered into a written lease agreement with defendant, Octavia Reid ("Reid"), on April 1, 1988. Pursuant to the terms of the agreement Reid was listed as a tenant and her son, Shakoor Reid ("Shakoor"), was listed as the only member of the household. In addition, the lease was for a one month term commencing April 1, 1988 and was to be automatically renewed for successive periods of equal length upon payment of the monthly rental unless properly terminated.
On October 6, 1992, Reid died intestate, leaving her then four year old son, as her sole heir, who continued to occupy the premises after his mother's death. At the time of Reid's death, she was four months in arrears in her rent. Plaintiff filed a complaint on November 23, 1992 for non-payment of rent.
On December 11, 1992, Al Tariq Brown ("Brown") the father of Reid's son, Shakoor, was appointed Administrator Ad Prosequendum
of the Estate of Reid and the Essex County Surrogate also entered judgment appointing Brown as guardian of his son.
Brown as Administrator Ad Prosequendum and guardian, now seeks dismissal of the complaint in that such action is barred under N.J.S.A. 3B:14-40; that Shakoor has a legal right to occupy the premises and in addition, Reid's heir is entitled to enjoy the benefits of a lease entered into prior to his mother's death.
In support of the first argument, it is asserted that this matter should have been properly brought against the administrator of the estate and only after the expiration of six (6) months from the issuance of the letters of administration. N.J.S.A. 3B:14-40 provides:
To enable personal representatives to examine into the condition of the estate and to ascertain its amount and value and the debts to be paid, no action, except for funeral expenses, shall be brought or maintained against personal representatives within 6 months after letters testamentary or of administration have been granted, as the case may be, unless by special leave of the court in which the action is brought; and, if leave is given, no execution shall issue within the period of 6 months.
Since the letter of administration was granted on December 11, 1992, it is argued that the within action cannot properly be brought until June 11, 1993. It is noted by the court that there is presently no executor or administrator of the estate due to the fact that Reid died intestate and Brown was given only Letters of Administration Ad Prosequendum and guardianship of his son. He is not an administrator of the estate of Reid in the most usual sense of the word. That is, he is not a personal representative of the estate.
The court concludes that N.J.S.A. 3B:14-40 acts as no bar to the prosecution of this matter. The complaint of the Authority is not one that is directed at the personal representative of the Reid estate, but was rather directed at Reid herself. That is, the cause of action arose during Reid's lifetime for her failure to pay rent for a period of four months ...