The opinion of the court was delivered by: Issenman
Plaintiff, the sponsor of a low and moderate income housing project, filed this summary dispossess action seeking to evict defendant tenant for materially breaching the covenant contained in her lease requiring her to recertify her income annually. Plaintiff proved compliance with the jurisdictional notice requirements mandated by the Anti-Eviction Act, N.J.S.A. 2A:18-61.1, but did not serve defendant with the pre-eviction notices required by regulations adopted by the New Jersey Housing and Mortgage Finance Agency.
Three issues are raised by this proceeding:
1. May the court sua sponte vacate the judgment it improvidently entered?
2. Must the landlord prove compliance with these regulations as part of its prima facie case or is the landlord's noncompliance an affirmative defense to be raised or waived by the tenant?
3. Are the regulations adopted by the New Jersey Housing and Mortgage Finance Agency in conflict with the Anti-Eviction Act, and thus invalid?
The salient facts are essentially undisputed. Plaintiff is the sponsor of Presidential Plaza, a complex consisting of several multi-unit residential apartment buildings constructed with funds obtained through a low interest loan from the New Jersey Housing and Mortgage Finance Agency (the Agency) pursuant to the "New Jersey Housing and Mortgage Finance Agency Law of 1983" (the Act). N.J.S.A. 55:14K-1 to -44. As a condition of the loan, admission to the housing project is limited to people or families with low or moderate incomes. N.J.S.A. 55:14K-8a. Defendant is a tenant in the project, having been admitted approximately seven years ago.
To ensure compliance with the income requirements, the Legislature specifically provided that:
b. The agency shall by rules and regulations provide for the periodic examination of the income of any person or family residing in any housing project constructed, improved or rehabilitated with a loan from the agency.
[N.J.S.A. 55-14K-8b (emphasis added).]
Pursuant to this mandate, the Agency adopted regulations requiring the periodic recertification of tenants' income. N.J.A.C. 5:80-20.5. The regulations also require a specific procedure to be followed by the sponsor in notifying the tenant that he or she must recertify their income and the consequence of potential eviction if they fail to do so. Ibid.
As a result of these regulations, the lease between the parties contained the following covenant:
8. Tenant shall furnish to landlord by March 1st of each year an income certification for the preceding calendar year. The income certification shall be on forms required by the New Jersey Housing and Mortgage Finance Agency and/or required pursuant to the Internal Revenue Code. Tenant's failure to timely file and/or truthfully complete the certification shall be a material breach of the lease ...