Before Judges Havey and A. A. Rodr¡guez and
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 10, 2000
On appeal from the Superior Court of New Jersey, Special Civil Part, Union County.
In this appeal, we hold that a person who occupies an apartment by virtue of being a member of a protected tenant's household cannot extend or create a tenancy relationship by paying rent to the landlord after the protected tenant dies. Absent a new tenancy created by mutual agreement, the landlord is entitled to possession.
These are the facts. John Roman and Matilda Roman were longtime tenants in a multi-unit building in Roselle. In February 1984, the Romans signed a lease with then-landlord, New Jersey Realty Company. The lease provided that the apartment would be used by themselves "and their 0 children." The lease contained a clause providing that [t]he apartment may not be occupied by anyone other than the Tenant and his household members. The Tenant may not sublet the apartment nor may Tenant assign this Lease.
The Romans' daughter Mildred Roman Saraceno and her son lived with them in the apartment. In February 1985, the Romans signed a renewal extending the initial lease for another year. The same occurred the next three years.
In 1985, the apartment building converted to condominium ownership. Matilda Roman applied for protected status under the Senior Citizens and Disabled Protected Tenancy Act, N.J.S.A. 2A:18-61.22 to 61.39. *fn1 In 1985, WG Associates (WGA), a partnership, purchased twelve of the condominium units in the building, including the one where the Romans resided. Since then, WGA has sold the other eleven units.
In January 1986, the Romans agreed, in writing, with WGA to change the duration of the tenancy from a year term to a periodic month-to- month tenancy. This written agreement provided that "all other terms and conditions of [the] lease will stay the same." Each year thereafter, the Romans received notice of monthly rent increases. This notice reiterated that this was a periodic tenancy and that the terms of the original lease governed the parties' relationship.
John Roman died in 1990 and Matilda Roman died in October 1997. After Matilda Roman died, Saraceno remained in the apartment and continued to pay the $469.83 monthly rent. WGA claims that it had no idea that Saraceno and her son were living in the apartment.
However, Saraceno testified that she had numerous dealings with WGA through its agent, Joel Grossman. Additionally, Saraceno claims that Grossman used to tell her that "he wasn't sure that [she] was supposed to be living [in the apartment]."
Grossman admitted that he had spoken with Saraceno and had met her once. But, he testified that it was not unusual for the children of an elderly person to assist the parent with complaints or requests for repairs. Grossman alleges that Saraceno attempted to deceive WGA about her mother's death because she would send checks and money orders for the rent in her mother's name. On one occasion, after Matilda Roman died, Saraceno sent him a note requesting repairs to be done and stating that "my mother was not here because she had doctors appointments and graduations to go to."
In May 1998, WGA learned that Matilda Roman had died. On May 26, 1998, WGA sent a notice to cease addressed to "Matilda Roman." The notice stated that there were unauthorized persons living in the apartment in violation of the lease and that if such persons did not vacate immediately there would be an eviction. On June 26, 1998, WGA sent a notice to quit addressed to Matilda Roman terminating the tenancy effective July 31, 1998, because the unauthorized persons had remained in the apartment.
Despite the notice to quit, WGA inadvertently accepted both the August and September 1998 monthly rent checks from Saraceno. As a result, WGA sent a second notice to quit addressed to "Estate of Matilda Roman or Present Occupant" terminating the tenancy as of October 31, ...