The opinion of the court was delivered by: Paley
This matter involves an issue not addressed earlier in any reported case in this state -- namely, may a public housing authority compel a member of a tenant's family who is under age to move from an apartment, because no adult resides there?
The Carteret Housing Authority provides public housing within the Borough of Carteret, New Jersey. Apartments maintained by the Authority are subject to the United States Department of Housing and Urban Development Section 8 Housing Assistance Program for Substantial Rehabilitation. See 42 U.S.C.A. 1437 et. seq; the United States Housing Act of 1937.
Because rent was not paid for one month, the Authority filed a complaint seeking summary dispossession pursuant to N.J.S.A. 2A:18-61.1 through 61.12, against Debbie Gilbert, tenant of Apartment 8, Building H, in the Edward J. Dolan Homes, Bergen Street, in Carteret. When defendant failed to respond to the complaint, judgment for possession was entered. Plaintiff then obtained a warrant of removal in the normal course and served it at the apartment. Samantha Gilbert (Samantha), daughter of the defendant, then wrote to the court to request a stay of the warrant, pursuant N.J.S.A. 2A:42-10.1. Based on that letter, the court granted a stay of the warrant pending a hearing On the day before that hearing, Samantha, represented by Middlesex County Legal Services Corporation, formally moved to vacate the judgment of possession.
For the reasons articulated below, the court grants defendant's application to vacate the judgment of possession. This opinion is an expansion of the decision on that motion placed on the record on January 27, 1997.
On or about September 1, 1988, the authority leased the apartment in question to defendant on a month-to-month basis. At all relevant times the monthly rent due from the tenant was $35.00. Plaintiff's complaint contended that defendant owed August rent of $35.00, plus a $25.00 late fee; after plaintiff obtained its judgment for possession, it certified that the aggregate indebtedness of defendant as of October 15, 1996, was $208.00 ($105.00 unpaid rent, $75.00 late fees, and $28.00 court costs).
The uncontroverted affidavits presented to the court reflect that Samantha was born in September, 1979. Since 1988, Samantha lived with her mother in the subject apartment; she is listed on the lease as an occupant. Two years ago, Samantha gave birth to her own child, who has lived in the same apartment since birth. For some time, Samantha has received public assistance for herself and her child through her own grant from the Middlesex County Board of Social Services (Board).
During October, 1996, defendant was sentenced to a term of imprisonment in a New Jersey penal institution which will last until at least July, 1997, and had paid no rent after her incarceration. Upon review of Samantha's letter, the court required that Samantha post $208.00 with the court; she obtained the funds from the Board and complied with the requirement. Samantha also entered into a "protective payee agreement" with the Board, whereby the Board will pay future monthly rent of $37.00 directly to plaintiff.
In Housing Authority of Town of Morristown v. Little, 135 N.J. 274, 639 A.2d 286 (1994), our Supreme Court held that, where a tenant in a public housing development had paid rent due shortly after a warrant of removal had issued, the trial court should vacate a judgment of possession, in light of the status of the publicly-subsidized provider of housing as housing of last resort. 135 N.J. at 291; see N.J.S.A. 40A:12A-16A(11). Here, however, the rub is that Samantha is not the "tenant"; furthermore, she is not of sufficient age to contract in her own behalf. See N.J.S.A. 9:17B-1(d).
The United States Congress and New Jersey's Legislature have addressed the age of users of housing in varying, but limited, ways. U.S.C.A. 6102 provides:
... no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or ...