On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. LT-2131-05.
The opinion of the court was delivered by: Lefelt, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2006
Before Judges Lefelt, Parrillo and Sapp-Peterson.
In this appeal, plaintiff Housing and Redevelopment Authority of Franklin Township sought to evict defendant tenant, Mary F. Mayo, for breaching her lease by permitting several unauthorized persons to reside in the leased premises. Discounting the notices to cease, quit and demand for possession, and termination of the lease, all of which the Authority had timely served on the tenant, the trial judge, relying on Jijon v. Custadio, 251 N.J. Super. 370 (Law Div. 1991), dismissed the Authority's eviction complaint because two days before trial the unauthorized persons had vacated the premises. To the extent that Jijon can be read as permitting a court to deny a judgment of possession solely because the unauthorized persons vacated public housing anytime "before institution of legal action or after," it is now disapproved. Consequently, we reverse, but for reasons explained below remand for further proceedings to determine whether an adequate cure for the breach has occurred or can be established.
Defendant has resided in the Authority's public housing for forty-two years. In September of 2004, defendant signed a new lease for a four bedroom apartment located in Somerset. To determine eligibility, as required under federal law, the Authority did background checks on four other prospective tenants, Mary A. Mayo and Judy Jacobs, defendant's adult daughters, and Glenn Powell and Barry Mayo, defendant's great-grandsons. 42 U.S.C.A. § 1437a(a)(1). The Authority found all four eligible and listed them on the lease as additional tenants, with defendant as head of the household.
The lease specifically prohibited subletting and providing "accommodations to boarders and lodgers" and required the tenant "to use the premises solely for a private dwelling." The lease also required defendant "to notify the Authority promptly of any increase or decreases in family income." The lease also required the Authority to give no less than "thirty days" written notice of termination for violations of the lease and also required that the notice inform "the tenant of tenant's right to make such reply as tenant may wish and of tenant's right to request a hearing in accordance with the Authority's grievance procedure."
Immediately after defendant and the other authorized tenants moved in, two additional family members, Shamira Jacobs and her child, Anthony Trainer, moved into the apartment. Subsequently, Judy Jacobs' daughter and grandson also moved to the apartment from a homeless shelter. Craig Mayo, defendant's adult grandson, similarly began living at the apartment intermittently, running an unauthorized car wash and repair business from the Authority's parking lot. When confronted by the Authority's Executive Director, Mr. Mayo stated he had a "right to use public resources."
In a May 19, 2005 letter, the Authority informed defendant that staff had observed unauthorized persons living in the apartment. The letter noted the lease sections that had been violated and advised defendant that if she would like to add persons to the lease, she would have to contact the office so that the Authority could determine their eligibility. Finally, the letter warned that violations of the lease could result in eviction.
Because defendant continued to permit unauthorized persons to live in the apartment, the Authority issued a "Notice to Cease" on May 24, 2005, reiterating the warnings in the letter and alerting defendant to the available grievance procedures. The Authority's Executive Director also met with defendant to discuss the violations.
On September 9, 2005, after observing that the violations continued, the Authority served defendant with a "Notice Terminating the Lease" along with a "Notice to Quit and a Demand for Possession." The termination notice stated that the lease would terminate on October 10, 2005, due to the unauthorized residency of persons not named in the lease. The notice advised defendant that if she remained on the premises after termination, eviction proceedings would be brought.
On September 21, 2005, the Authority again demanded, by "Notice to Cease," that defendant stop violating the lease and again informed her by separate letter of the grievance procedures, which entitled her to a hearing within five days. On that same day, another letter from the Executive Director repeated the content of the notice and reiterated that despite several meetings with the Authority and the Director, violations continued. That letter warned in bold type, underlined, that "Providing accommodations for any additional person(s) not listed and approved on the lease is a violation that constitutes fraud and embezzlement and is grounds for eviction."
On September 22, 2005, a grievance hearing was conducted at the Authority offices. The hearing was attended by defendant and Judy Jacobs, as well as the Executive Director and other Authority staff. On November 7, 2005, after the grievance proceeding failed to resolve the matter, the Authority filed an eviction complaint against defendant on the grounds that she breached the lease by allowing unauthorized family ...