On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-16416-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and R. B. Coleman.
Defendants Maria Melgar and her son, "John Doe Occupant" Hector Mencos, appeal from a judgment of possession entered on January 31, 2008, in favor of plaintiff Golden Peak, LLC. By their appeal, Melgar and Mencos seek to extend the Supreme Court's decision in Maglies v. Guy, 193 N.J. 108 (2007) to a non-Section 8 tenancy. Maglies involved a Section 8 tenancy where the Court concluded that the New Jersey Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, might protect from eviction without cause a "functional co-tenant," the daughter of the tenant of record, if she could show that she was continuously in residence in the subject apartment, that she substantially contributed to the financial obligations of the tenancy and that the landlord had acquiesced in that tenancy arrangement. Id. at 122-23. After reviewing the record in this appeal in light of the contentions advanced, we agree with defendants that the holding in Maglies is not limited solely to Section 8 tenancies. We, therefore, reverse the judgment of possession entered in this case.*fn1
The critical facts of this case were stipulated by the parties and may be concisely stated. Essentially, the tenant of record, Maria Melgar, who had lived in a rent-controlled apartment with her adult son for many years, moved into an assisted living senior housing facility. That move left the son as the sole resident of the rent-controlled apartment the two had theretofore occupied.
Melgar was designated as the tenant in a lease agreement with the landlord RCG Urban Housing Partners, LLC, predecessor of plaintiff Golden Peak, LLC. Paragraph four of that lease agreement specified that Melgar's son, Hector Mencos, was permitted to reside in the premises with the tenant. In its verified landlord/tenant complaint, Golden Peak asserted that it was a violation of the lease for Melgar to have left Mencos as the sole resident of the apartment. Relying on the alleged non-residence of the primary occupant and an illegal sublet, the landlord moved for possession. The parties agreed there was no need for a plenary hearing.
In rendering its decision on January 31, 2008, the court set forth on the record the agreements and stipulations of the parties:
[T]here are two defendants. One is Maria Melgar and she is identified as the named tenant on a lease which governs the relationship between plaintiff and defendant in this case. The other one is on the complaint is [sic] identified as John Doe, an occupant of the premises but however as it was explained to the court the other defendant is actually Hector Mencos who is the son of Maria Melgar.
. . . The plaintiff landlord found out that the defendant Melgar had vacated the apartment in question around December of 2006 and that the occupant, Mr. Mencos, remained in the apartment after Ms. Melgar left.
Now I'm going to refer to Mr. Mencos as the occupant of the apartment because the court finds that Mr. Mencos was not named as a tenant on the lease and he did not sign the lease as a tenant. He is listed as someone who lived with the named tenant, Ms. Melgar, who is the only person to actually sign the lease. So Mr. Mencos remained in the apartment after Ms. Melgar left the apartment.
There is no . . . claim by the landlord in this case of violation of any rule or non payment of rent. The only cause of action in this case is that the named tenant, Ms. Melgar, left the apartment and the occupant, Mr. Mencos, who remained behind, was not a tenant and did not have the right to continue to reside in this apartment because the landlord did not consent in any way, shape or form to declare or accept Mr. Mencos as a tenant in the apartment, therefore the possession of the apartment by Mr. Mencos was a breach of the lease provisions which require that the landlord can consent to any assignment or subletting of the lease.
The lease in question is a 1999 lease. Paragraph four of that lease which was I believe marked as P-3 states that Mr. Mencos could reside in the apartment with the tenant and paragraph fourteen of the lease states that there can be no assignments or subletting of the lease without the written consent of the landlord.
It was stipulated and I incorporate that as part of my findings of fact that the notices which were served upon the defendant -- defendants in this case, are sufficient and adequate under the law. There was no objection to the notices ...