On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. LT-3803-05.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2006
Before Judges Skillman, Axelrad and Payne.
The issue presented by this appeal is whether a surviving family member of a deceased tenant whose rental payments were subsidized under the federal Section 8 housing assistance program is entitled to succeed to the decedent's tenancy rights under the statutes and regulations governing the Section 8 program or under the New Jersey Anti-Eviction Act. We conclude that such a surviving family member is not entitled to succession rights to the decedent's tenancy under either federal or state law.
Bertha Guy rented an apartment in a four-unit dwelling in New Brunswick from plaintiff Robert Maglies. In 1991, Guy began participating in the Section 8 Housing Choice Voucher Program, under which she received a rent subsidy funded by the United States Department of Housing and Urban Development (HUD). This subsidy was paid pursuant to a "Housing Assistance Payment Contract" between plaintiff, Guy and the Department of Community Affairs (DCA), which administers the Section 8 program for HUD as a public housing agency. See Pasquince v. Brighton Arms Apts., 378 N.J. Super. 588, 591 n.1 (App. Div. 2005). In 2005 the rent was $647 per month, with Guy paying $233 and the Section 8 subsidy paying the remaining $414.
In 2001, Guy's daughter, intervenor Sherri Jennings, moved into the apartment. Jennings was not a party to the lease or the Housing Assistance Payment Contract.*fn1 However, she was designated in both documents as an occupant of the household.
Guy died on March 30, 2005, leaving Jennings as the sole occupant of the apartment. Jennings failed to make timely payment of the rent for April 2005. When Jennings subsequently attempted to tender Guy's share of the rent, plaintiff refused to accept it because he did not want to lease the apartment to Jennings, who has a poor credit history and also allegedly suffers from psychological problems that prevent her from taking care of herself or the apartment.*fn2
After Guy's death, Jennings moved her twenty-five-year-old daughter into the apartment to help care for her. Jennings' granddaughter also may be occupying the apartment.
Based on Jennings' failure to pay the April rent, plaintiff brought this action against Guy's estate for summary dispossession for nonpayment of rent. The trial court permitted Jennings to intervene and subsequently converted the case into an eviction action in which both parties sought a determination of Jennings' right to retain possession of the apartment. See Ctr. Ave. Realty, Inc. v. Smith, 264 N.J. Super. 344, 346 (App. Div. 1993). However, the Special Civil Part retained jurisdiction.
The trial court concluded in a brief oral opinion that under the federal statutes and regulations governing the Section 8 housing subsidy program, Jennings "was a bona fide remaining member of the tenant family at the time Ms. Guy died . . . [and] shall enjoy all occupancy rights to which she was entitled prior to her mother's death, since a remaining family member's occupancy rights are not terminated by the death of any member." Accordingly, the court ordered plaintiff to allow Jennings to continue occupancy of the apartment provided she pays the rent. The court further ordered that Jennings' rental payments, which were being held in escrow by Central Jersey Legal Services, should be released to the plaintiff, who could accept the rent without waiving his right to appeal. Although Jennings had argued that she was also entitled to continue her occupancy of the apartment under the New Jersey Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, the trial court did not address this point.
On July 11, 2005, the trial court entered an order that states in pertinent part:
2. Sherry Jennings was a bona fide family member of Bertha Guy who was living in the unit with the ...