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Sudersan v. Royal

December 23, 2005

WANDA SUDERSAN, PLAINTIFF-RESPONDENT,
v.
DIANE ROYAL, DEFENDANT-APPELLANT.



NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted November 28, 2005 - Decided Before Judges Lintner and Parrillo.

On appeal from an entry of Judgment of Possession of the Superior Court of New Jersey, Special Civil Part, Landlord-Tenant, Camden County, Docket No. LT-7654-04.

Sonia Bell, attorney for appellant (South Jersey Legal Services; Ms. Bell, on the brief).

No brief was filed on behalf of respondent. The opinion of the court was delivered by PARRILLO, J.A.D.

Defendant, Diane Royal, appeals from a summary dispossess order of the Special Civil Part, evicting her for non-payment of rent. As a recipient of a federal housing subsidy, defendant argues that her eviction was for failure to pay water and sewage bills, which, by virtue of preemptive federal law, cannot be considered as rent and, therefore, cannot serve as the basis for a summary dispossess action for non-payment of rent. We agree, and reverse.

The facts are not in dispute. In June 2003, defendant moved into rental property at 1146 Everett Street in Camden pursuant to a one-year lease agreement executed on May 9, 2003, with the landlord, plaintiff, Wanda Sudersan. The lease was subsequently amended to include utility charges as "rent".

From the outset of her tenancy, defendant was a participant in the Section 8 Housing Choice Voucher Program, a federal housing subsidy program created pursuant to the United States Housing Act, 42 U.S.C.A. § 1437 to 1437z-7, to assist low-income families with affordable housing. The program is administered in this State by New Jersey's Department of Community Affairs (DCA), under the auspices of the Department of Housing and Urban Development (HUD). HUD allocates funds to local public housing agencies (PHAs) throughout the nation to administer the Section 8 program, and promulgates rules for its operation. In compliance with applicable regulations, the local PHA enters into a Housing Assistance Payments (HAP) contract with a property owner on behalf of an eligible family and agrees to subsidize the rental payment. Under the terms of this program, eligible low-income tenants pay a portion of the monthly rent for their leased premises, which is set according to their income. Thus, in accordance with federal law, the eligible tenant's portion is capped at a maximum of approximately 30% of the participating family's income. 42 U.S.C.A. § 1437f(o)(2)(A). Tenant contributions to the rent must be adjusted if the household income fluctuates. 42 U.S.C.A. § 3544(b); 42 U.S.C.A. § 1437f(o)(5)(B). Consistent with the goals of the program, the tenant portion of the rent is capped to ensure that decent, suitable housing is affordable for the assisted low-income family, thereby promoting economically mixed housing. 42 U.S.C.A. § 1437f(a).

In this case, the Section 8 subsidy was tenant based, meaning that should defendant move from the unit, the subsidy remains with her, and not the property. Here, defendant's income was low enough to qualify for a full rent subsidy of $818 per month. In other words, 100% of her rent was paid by the Section 8 subsidy program. Thus, even if actual rent was7 outstanding, defendant would not be responsible for non-payment on the part of the Section 8 program. 24 C.F.R. 982.310(b).

On the other hand, defendant was responsible for utility charges that by virtue of the lease addendum were considered additional rent. When she defaulted on that obligation, on September 2, 2004, plaintiff filed a summary dispossess action against defendant for non-payment of rent pursuant to N.J.S.A. 2A:18-61.1a, alleging outstanding water and sewage charges totaling $490.00. On the date of the hearing, defendant, through counsel, argued that notwithstanding the lease agreement, the utility charges, which she did not dispute, were not "rent" in a Section 8 tenancy, and, therefore, under federal law she could not be evicted for non-payment of rent because her portion of the rent owed was fixed at zero. The Special Civil Part judge disagreed, and in light of the undisputed utility charges outstanding, he awarded judgment of possession in favor of plaintiff. A warrant of removal was issued and defendant was locked out of the property on November 16, 2004. She has since relocated, apparently to other Section 8 housing.

Ordinarily, where a tenant no longer resides in the property, an appeal challenging the propriety of an eviction is moot. See Ctr. Ave. Realty, Inc. v. Smith, 264 N.J. Super. 344, 347 (App. Div. 1993). Here, however, the eviction carries residual legal consequences potentially adverse to defendant. That is, a tenant's federal subsidy may be revoked if that tenant "has been evicted from federally assisted housing in the last five years." 24 C.F.R. 982.552(c)(ii). In this regard, we have been advised at oral argument that defendant has since been noticed of a proposed termination of her Section 8 subsidy due to the eviction. In light of the risk to her Section 8 subsidy and the public importance of the issue generally, we decline to dismiss the appeal as moot. John F. Kennedy Mem'l Hosp. v. Heston, 58 N.J. 576, 579 (1971).

In New Jersey, the trial court has jurisdiction to enter a judgment of possession only if the landlord can demonstrate one of the statutorily enumerated "good cause" grounds for eviction. N.J.S.A. 2A:18-61.1; see also Franklin Tower One, L.L.C. v. N.M., 304 N.J. Super. 586, 592 (App. Div. 1997), aff'd, 157 N.J. 602 (1999). A landlord has the burden of proving "good cause," Vill. Bridge Apt's v. Mammucari, 239 N.J. Super. 235, 240 (App. Div. 1990), and the failure to meet this burden "is sufficient ground to warrant dismissal for lack of jurisdiction." Marini v. Ireland, 56 N.J. 130, 138 (1970).

Good cause to evict exists where "[t]he person fails to pay rent due and owing under the lease whether the same be oral or written." N.J.S.A. 2A:18-61.1(a). This provision provides in pertinent part:

No lessee or tenant . . . may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes . . . except upon ...


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