On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. LT-010775-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter, Nugent and Carchman.
Defendant L.M.G.*fn1 appeals from a Law Division order evicting her from her apartment, which is owned and managed by her landlord, plaintiff Sycamore Ridge Apartments (Sycamore). We agree with the judge's finding that the persistent urine odor emanating from defendant's apartment, caused by defendant's daughter's incontinence, constituted a lease violation that entitled plaintiff to a judgment for possession. We further conclude that under the circumstances presented Sycamore had no duty to accommodate the daughter's disability. We affirm the judgment, but stay our mandate for a thirty-day period to enable defendant to secure alternate housing for herself and her daughter.
In 1998, defendant L.M.G., who is currently eighty-two years old, and her daughter J.F., who is fifty-three, moved into Sycamore, which is located in Pennsauken. Sycamore is a 304-unit, federally subsidized housing project that participates in the Section 8 voucher program administered by the Department of Housing and Urban Development (HUD).
Defendant and J.F. are both signatories on the lease. J.F. suffers from diabetes, and in October 2010, was diagnosed with diabetes-related urinary incontinence, which was exacerbated by a non-healing foot that impairs her mobility.
On August 14, 2010, after more than six years of receiving complaints from other tenants, Sycamore served a notice to cease and desist upon defendant due to an "extremely offensive, intolerable urine odor emanating from [her] unit." On September 2, 2010, the Camden County Department of Health (Department) conducted an inspection of the premises, and determined the conditions were "unsatisfactory" due to "foul odors emanating from [defendant's] ap[artmen]t." On September 8, 2010, the Department issued a notice to remove or abate the nuisance, advising defendant to "promptly" correct the violations "to avoid the possibility of legal action."
Shortly thereafter, Sycamore served defendant with a notice to quit the premises, demanding that she vacate the unit on or before November 30, 2010. Defendant and J.F. did not do so.
On December 6, 2010, Sycamore filed a summary dispossess complaint in the Law Division, Special Civil Part, seeking a judgment for possession based upon the "urine odor" emanating from defendant's unit. In a letter dated January 10, 2011, defendant requested a "reasonable accommodation," pursuant to the Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C.A. § 3601 to 3619, the Rehabilitation Act of 1973 (RA), 29 U.S.C.A. § 701 to 796, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. In the letter, defendant stated that her daughter "suffers from . . . physical disabilities which . . . in the past . . . [had] adversely affected her activities of daily living, and contributed to certain hygiene issues." Defendant maintained that her daughter was now "receiving treatment," and requested an accommodation in the form of "rescission of the Notice terminating the Tenancy, and time to allow the medical assistance [J.F.] is receiving to complete its course."
After Sycamore filed the eviction action, the Department conducted a second inspection, which revealed "[a] urine odor in [defendant's] living room and at [the] rear common hallway." On March 11, 2010, the Department issued an additional notice to remove or abate the nuisance, advising defendant that the violation "should be corrected promptly . . . to avoid . . . legal action."
On April 21, 2011, Judge Laskin conducted a hearing on plaintiff's summary dispossess complaint. The judge heard testimony from Crystal Watson and Linda Amoroso, who testified on Sycamore's behalf; and defendant's son, D.G., who testified for defendant.
Crystal Watson, who resides in the unit directly above defendant, testified that as soon as she moved in, she noticed "a strong urine smell" coming from defendant's apartment. The odor was so bad that she called the Board of Health to complain, and attempted to conceal the odor with "a lot of air fresheners." Watson stated that the smell is present "[e]veryday all day," and that, although she wants to continue to live in her unit, the odor is "[an] issue" that "affect[s] [its] livability."
Linda Amoroso, the property manager at Sycamore, testified that she had been receiving complaints from other tenants "concerning urine odors" emanating from defendant's unit ever since January 2006, when Amoroso began working at Sycamore. She testified that, "[h]aving worked with seniors before . . . [who have] had similar issues, [she first] tried to resolve [the issue] without taking legal action," because defendant is otherwise "a good tenant." "[T]o get [defendant] help" Amoroso: reached out to family members, including defendant's two sons and her daughter-in-law; contacted the Camden County Board Social Services (Social Services); and called Adult Protective Services, which Amoroso stated will "come out and take aggressive measures to help the tenant." Social Services informed Amoroso that defendant "refused help from them."
When asked what she had done to accommodate defendant, Amoroso stated that she tried "anything [she] could think of." She stated, "I contacted every family member I had a phone number for . . . I met with her son . . . [and painted] certain rooms [the Board of Health] wrote up." She stated, "I've tried everything that I'm aware of, every service, to get her help so this would resolve the problem."
Amoroso testified that even after August 14, 2010, when she served the notice to cease upon defendant, she had "received continuing complaints . . . almost daily . . . from neighboring tenants . . . [and] other entities and persons," including: the mailman; contractors and painters; visitors of other tenants; Sycamore staff members; the police department; and the Board of Health. Amoroso stated that, after the Department deemed the conditions unsatisfactory, she found "a contractor [who] was willing to go in and just paint that room and get out." Several other contractors had refused to paint defendant's apartment because the "overwhelming" urine odor made them "nauseous."
During the hearing, defendant argued that after the summary dispossess complaint was filed, she made additional efforts to clean her unit, by replacing "the carpeting" and the "mattresses and the box spring," and hiring a company to "come out and do a deep cleaning in her unit." She requested time to obtain "an independent third party . . . inspect[ion] of the unit, [to] see whether or not the conditions have been ameliorated." The judge adjourned the hearing to enable defendant to arrange a follow-up inspection by the health department.
Defendant's son, D.G., testified that after Sycamore notified him of the problem, he "started cleaning" and "throwing out stuff" in defendant's unit, including a mattress, bed, rug, couch and "everything that was in the [apartment]." He maintained that the odor must be coming from somewhere else because defendant's unit is now clean.
On May 2, 2011, as the judge had requested, the Department performed a third, and final inspection, and issued a report stating: "[u]rine odor present in apartment. No urine odor in common areas or outside apartments." On May 4, 2011, the Department issued a final notice, advising defendant that "[her] failure to remove or abate the nuisance now leads [the Department] to take the necessary legal action."
During a pretrial conference on May 5, 2011, defendant produced the final notice issued by the Department, which indicated the odor was no longer emanating into the common area, but still existed in defendant's unit. Defendant repeated her request for an accommodation, asserting that, as a federally subsidized housing provider of last resort, Sycamore is required to provide an accommodation "unless they can demonstrate an exception . . . [and] [t]he only exception is if there's a direct threat to safety, and . . . [there hasn't been] any testimony about a direct threat."
Sycamore maintained that the problem was ongoing, causing Sycamore to "los[e] tenants." The judge continued the hearing to allow the parties to continue their efforts to amicably resolve the matter. The parties failed to reach a resolution, and the eviction proceedings resumed on June 9, 2011. In addition to the testimony that had been presented on April 21, 2011, plaintiff presented as witnesses Peter Johnson and Ruth Alicea, and recalled Amoroso. Alicea testified that, during the ten years she has been ...