March 29, 2007
PINE VALLEY COURT APARTMENTS, PLAINTIFF-RESPONDENT,
VENISA BOWE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. LT-400-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 6, 2007
Before Judges Lisa and Grall.
Defendant Venisa Bowe appeals from a judgment of possession awarded in favor of plaintiff Pine Valley Court Apartments. Plaintiff sought to remove defendant on the ground of unsanitary conditions, including the presence of debris, trash and exposed food, that attracted rodents and caused roach infestation. The trial judge concluded that plaintiff established conditions warranting removal.
Defendant's rent is subsidized by the United States Department of Housing and Urban Development. This benefit is "commonly referred to as Section 8 rental assistance, 42 U.S.C.A. § 1437f." See Hodges v. Sasil Corp., 189 N.J. 210 (2007). The program in which defendant participates is administered by the Clementon Housing Authority.
On April 26, 2004, defendant and her two teenage children were tenants of Pine Valley Court. They lived in apartment B52. Plaintiff issued a notice to cease. In that notice, plaintiff warned defendant that she could be evicted if she did not "take good care of the apartment." Plaintiff alleged that on more than one occasion since September 2003 defendant had violated provisions of her lease requiring her to keep her apartment clean and noted that in October 2003 the Board of Health found dirty appliances, roaches and other pests, and excessive food, dirt and trash scattered over her apartment. In the notice, plaintiff explained that defendant's lease required her to "keep the apartment in a clean and sanitary condition, free of trash, insects, and vermin"; "remove all trash from the apartment and place it in the proper containers provided," and "keep [all appliances] clean." The notice concluded with a warning that any further violations would result in termination of her lease.
The parties executed a new lease dated April 27, 2004, for a month-to-month tenancy of apartment B52 beginning on April 1, 2004. Under that lease defendant had the same obligations to maintain the sanitary conditions referenced in the April 26, 2004 notice to cease.
On December 1, 2004, plaintiff's manager accompanied an exterminator that plaintiff had retained to treat defendant's apartment. She found that defendant had not corrected the conditions referenced in the notice to cease and a notice of termination effective January 5, 2005 was issued. That notice recited the violations listed in the notice to cease.
Plaintiff filed an action for summary dispossess, which was dismissed by consent order on December 6, 2004. In that consent order, the parties agreed to amend the lease to require the landlord to give a minimum of twenty-four "hour advance notice" of examination of the apartment by lenders, insurers, government officials, future tenants or prospective purchasers, but the lease was not amended to require notice of entry by the landlord to inspect, repair or exterminate. The consent order, executed by the attorneys for both parties, did not alter defendant's obligations to maintain the premises.
By complaint dated January 10, 2005, plaintiff again demanded possession, alleging, among other unrelated violations, defendant's continued failure to correct the conditions referenced in the April 26, 2004 notice to cease.
By letter dated February 14, 2005, counsel for defendant first notified plaintiff that defendant was formally requesting "a reasonable accommodation under the federal Fair Housing Act." The letter did not indicate a reason for the request or specify the accommodation sought. On March 1, 2005, plaintiff asked defendant to identify the accommodation requested. By letter dated March 16, 2005, defendant's attorney advised plaintiff that defendant suffered from depression and severe anxiety. The letter further advised that defendant was receiving assistance from two social service agencies that were providing housekeeping assistance and counseling. On that basis, defendant's attorney advised, "we are requesting that the plaintiff accommodate [defendant's] condition by allowing the agencies assisting her to do their work. The summary dispossess action should be continued for a period of time to allow a level of normalcy to be established." Trial was postponed until April 21, 2005.
Plaintiff's manager testified. Apartment B52 was the second apartment defendant occupied at Pine Valley Court. She was moved from a one-bedroom apartment to a two-bedroom apartment in 2003 out of concern that it was too difficult to maintain sanitary conditions in the smaller unit.
A Housing Inspector for Clementon also testified. He inspected defendant's two-bedroom apartment on March 13, 2003, prior to her taking occupancy. He found it to be "very habitable." During a subsequent inspection on October 21, 2003, however, he found trash on the floor and roach infestation. When he inspected the apartment again on October 5, 2004, he found no improvement. According to plaintiff's manager, photographs of defendant's apartment taken in October 2003 accurately reflected the roach infestation, filth and debris that she observed then and when she last inspected defendant's apartment three to four weeks prior to trial.
An exterminator employed by Orkin Pest Control and retained by plaintiff treated defendant's apartment for infestation on a regular basis in February, March and April 2005. His last visit was on the day before trial. On each occasion he found evidence of infestation. He saw "cockroaches in the cabinets, . . . in the bathroom, [and] throughout the house . . . ." He explained that treatments that usually were effective did not work in defendant's apartment. There were vivid descriptions of the locations in which live and dead roaches were found.
Defendant testified that she cleaned her apartment "every day." She acknowledged the infestation but denied responsibility. She submitted photographs that she claimed depicted the conditions in her apartment during the past year. The exterminator from Orkin reviewed defendant's photographs and reported that they did not accurately depict the conditions that he had observed in defendant's home on any of his visits.
Defendant testified that she suffers from "depression" as well as "anxiety, panic attacks, and schizophrenia." She said that those conditions affect her ability to perform her daily activities and that she had been receiving weekly assistance from two social services agencies for two months. When asked what plaintiff could do to accommodate her illness, defendant responded, "Just to leave me alone[, and] give me another lease so I can deal with my business."
The trial judge reviewed the evidence and found the testimony of the exterminator credible and persuasive. We read the judge's decision as based on a finding that plaintiff had established that defendant failed to maintain her apartment as required by the lease and failed to establish a disability that would permit her to remain despite the condition of her apartment. Order of eviction was entered. That order has been stayed pending appeal.
Plaintiff raises the following issues:
I. The Trial Court Lacked Jurisdiction Based On Deficiencies In The Notice.
II. Because The Respondent Waived The Condition Of The Unit, The Trial Court Erred In Considering The 2003 Pictures.
III. Reasonable Accommodation.
IV. Necessity Of An Interactive Process.
V. Appellant Does Not Fit Within "Direct Threat" Exception.
VI. Issues Raised In This Appeal Are Properly Before The Court.
The claims defendant raises in Point I and Point II of her brief are not supported by the record. Based upon the introduction of photographs taken in 2003, defendant contends that plaintiff did not give adequate notice of the grounds for eviction and argues that plaintiff had waived its right to seek eviction based on the condition in her apartment in September 2003. The trial judge, however, did not permit the plaintiff to rely upon the conditions depicted in the 2003 photographs as grounds for eviction. The judge made it clear that plaintiff's photographs were admitted not as evidence of a violation in 2003 but only to the extent that the pictures depicted current conditions in defendant's apartment. The judge's decision makes it equally clear that he did not base his decision on conditions in defendant's apartment in 2003. The judge explained that he considered the photographs only because of the testimony that they show what the apartment "looks like as of now."
While there is no question that specific notice of the grounds for eviction is required, the trial judge did not permit plaintiff to use the photographs in a manner that deprived defendant of notice. See N.J.S.A. 2A:18-61.1e(1); N.J.S.A. 2A:18-61.2 (requiring a landlord to specify "in detail" the cause of the termination and to provide one-month's notice of a continued breach of a substantial condition of the lease); Hous. Auth. of City of Newark v. Raindrop, 287 N.J. Super. 222, 227 (App. Div. 1996) (requiring strict compliance with statutory provisions); see also 24 C.F.R. 982.310(e)(1)(i) (requiring "written notice that specifies the grounds for termination of tenancy during the term of the lease"). Moreover, there is no question that defendant had notice of the grounds upon which plaintiff would rely to establish her breach of the lease, and there is no question that plaintiff did not rely upon the conditions in 2003 to establish a right to possession of defendant's apartment.
Defendant met plaintiff's evidence of conditions in her apartment with photographs and testimony of her own about current conditions. The trial judge did not credit her testimony. Rather, the judge credited the testimony of plaintiff's witness, the Orkin exterminator, who had been in defendant's apartment on a regular basis during the months between the filing of the complaint and the trial. We are required to accept the judge's factual findings because they are supported by the record and his assessment of the credibility of the witnesses. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
In Points III, IV, V and VI of her brief defendant argues that plaintiff failed to provide a reasonable accommodation of her disability, which posed no threat to person or property and precludes her eviction. Defendant relies upon the Fair Housing Act of 1968, as amended by the Fair Housing Amendments Act, 42 U.S.C.A. §§ 3601 to 3619 (collectively, the FHAA) and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
The FHAA makes it unlawful to "discriminate against any person . . . in the provision of services or facilities in connection with [her] dwelling, because of a handicap" of that person. 42 U.S.C.A. §§ 3604(f)(2), 3604(f)(2)(A) (2006). The prohibited discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." 42 U.S.C.A. § 3604(f)(3)(B); see Douglas v. Kriegsfeld Corp., 884 A.2d 1109 (D.C. Ct. App. 2005). Reasonable accommodation is not required when the tenancy would pose a direct threat to the health or safety of others or result in substantial physical damage to property of others. 42 U.S.C.A. § 3604(f)(9). Several courts have held that unlawful discrimination may be asserted as a defense in an action for eviction. See Fayyumi v. City of Hickory Hills, 18 F. Supp. 2d 909, 912 (N.D. Ill. 1998); Newell v. Rolling Hills Apartments, 134 F. Supp. 2d 1026, 1038 (N.D. Iowa 2001); Capone v. Kenny, 646 So. 2d 510, 512 (La. Ct. App. 1994); Hous. Auth. of City of Bangor v. Maheux, 748 A.2d 474, 476 (Me. 2000); Arnold Murray Const., L.L.C. v. Hicks, 621 N.W. 2d 171 (S.D. 2001); Josephinium Assocs. v. Kahli, 45 P.3d 627, 632 (Wash. Ct. App. 2002). In Douglas, the court explained that because a discriminatory denial can occur at any time during the period of tenancy prior to eviction, a reasonable accommodation defense is available in an eviction proceeding. 884 A.2d at 1121.
Because there is no evidence that would have permitted the trial judge to conclude that plaintiff failed to offer a reasonable accommodation that would have addressed defendant's claimed inability to maintain sanitary conditions as required by her lease, it is unnecessary to discuss the availability of the defense at length.*fn1 Upon receipt of defendant's request for reasonable accommodation, defendant's landlord promptly attempted to open a dialogue. See ibid. (discussing the "interactive process" courts have required); id. at 1122 n.22 (discussing cases). Defendant's response was to demand an indefinite delay of an eviction until services she was receiving had a positive impact. Trial was postponed, and eviction was delayed. At trial, defendant acknowledged that she had been receiving assistance on a weekly basis from two agencies for a two-month period. She provided no evidence or explanation as to how her disability precluded her from removing her trash or covering her food. Cf. City Wide Assocs. v. Penfield, 564 N.E. 2d 1003, 1004 (Mass. 1991) (noting that the trial judge found that the tenant caused minor damage to the interior of her apartment because of her delusions). Similarly, she offered no explanation as to how or when the services she was receiving would allow her to do what she claimed her disability rendered her unable to do. Cf. Douglas, supra, 884 A.2d at 1124 (noting that the tenant supplied a sufficient "indicia of a plan to cure the lease violation"). Plaintiff, in contrast, produced evidence that it previously provided defendant with a larger apartment that was clean and free of infestation, retained a professional exterminator after defendant allowed that apartment to become infested, and provided professional extermination services on a regular basis over a three-month period. Despite plaintiff's efforts and the efforts of the social service agencies, conditions in defendant's apartment remained unchanged after the trial date was postponed, and defendant offered no reasonable assurance that the apartment would be restored to and maintained in a sanitary condition. See id. at 1126 (agreeing that "unless the requested accommodation gave adequate assurance that the apartment would be cleaned up promptly - and offered a reasonable prospect for its staying clean - the health and safety exception would likely justify the tenant's eviction"); cf. City Wide Assocs., supra, 564 N.E. 2d at 1005 (concluding that the landlord was required to accept reasonable accommodation proposed by the tenant who caused minor damage to her apartment as a consequence of delusions, offered to pay for the damage, to find the assistance needed to address the problem, and sought to delay eviction only so long as her conduct did not become more destructive or disruptive).
In sum, this record provides no support for a finding that plaintiff acted unreasonably in denying defendant's demand for an indefinite period of time to address her claim of disability and her bald assertion that it contributed to her breach of provisions of the lease. The obligation to provide a reasonable accommodation does not require a landlord to provide what the tenant views as the ideal solution or to make endless attempts to aid and permit a tenant to remediate threatening or destructive conditions that violate a lease. See Foster v. Tinnea, 705 So. 2d 782, 786 (La. Ct. App. 1997); White Cliffs at Dover v. Bulman, 855 A.2d 437, 442 (N.H. 2004).