On appeal from Superior Court of New Jersey, Law Division, Hudson County, LT-0105-06.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2007
Before Judges Weissbard, S.L. Reisner and Gilroy.
In this landlord-tenant action, the trial court found that plaintiff, Housing Authority of the City of Bayonne (the Authority), established two of three grounds alleged as the basis for eviction of defendants Deborah Mims and her daughter, Sincerrae Ross. Nonetheless, the court found that the Authority had filed its action for eviction in retaliation for complaints made by defendants, thereby violating the Tenant Reprisal Act (TRA or the Act), N.J.S.A. 2A:42-10.10 to -10.14. Ordinarily, such a finding would void the eviction; however, the judge ruled that the TRA was preempted by federal law governing public housing authorities. We conclude that the TRA is not preempted, thereby entitling defendants to judgment dismissing the eviction complaint.
Defendants are longtime tenants of the Authority, pursuant to a written lease. On December 22, 2005, the Authority filed an eviction complaint in the Special Civil Part, Landlord-Tenant Division. The Authority alleged three specific violations of the lease and rules and regulations incorporated into the lease, providing grounds for eviction pursuant to N.J.S.A. 2A:18- 61.1(d) and (e)(1).
The grounds set forth in the complaint were: (1) not permitting the landlord to enter defendants' apartment during reasonable hours for landlord's exterminator to perform routine extermination; (2) providing accommodations to a person not listed on the lease; and (3) failing to adhere to the Authority's pet policy. A fourth allegation provided that defendant repeatedly violated the landlord's rules or regulations despite previous notices; however, this ground simply relied on the other three. The complaint alleged that on September 29, 2005, the Authority served on defendants a written notice to quit and demand for possession, terminating their tenancy as of November 1, 2005. The complaint alleged that notices to cease had been served on defendants on April 28, July 19 and August 12, 2005.*fn1
The matter was tried over five days, concluding on April 27, 2006. On May 16, 2006, the judge issued a written opinion.
First, the judge addressed each of the three grounds alleged as a basis for eviction. There is no necessity for us to recite the evidence or the judge's findings in detail. The judge found that the Authority had not sustained its burden of proof as to the exterminator access allegation but had met its burden as to the pet and unauthorized occupant issues. Defendants have not challenged the judge's factual determinations, which are well supported by the record, and we are bound by them. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).
Next, the judge addressed defendants' defense that the Authority acted in retaliation, thereby violating N.J.S.A. 2A:42-10.10, which reads in pertinent part as follows:
No landlord . . . shall serve a notice to quit upon any tenant or institute any action against any tenant to recover possession of premises. . .
a. As a reprisal for the tenant's efforts to secure or enforce any rights under a lease or contract, or under the laws of the State of New Jersey or its governmental subdivisions, or of the United States; or
b. As a reprisal for the tenant's good faith complaint to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code or ordinance, or State law or regulation which has its objective the regulation of premises used for dwelling purposes.
The judge noted the following exhibits offered by defendants:
September 20, 1999 - A complaint to management about bags of trash in the hallways
December 14, 2001 - A complaint to management about lack of ...