On December 12, 2007, the New Jersey Supreme Court rendered an opinion in Robert Maglies v. Estate of Bertha Guy that is a windfall for authorized apartment occupants of a Section 8 tenant who dies. The Supreme Court granted defendant Sherri Jennings, who was the tenant’s daughter, petition for certification.
The issue presented by the appeal was whether a surviving family member of a deceased tenant, whose rental payments were subsidized under the federal Section 8 housing assistance program, is entitled to succeed to the decedent's tenancy rights under either: (1) the statutes and regulations governing the Section 8 program, or under (2) the New Jersey Anti-Eviction Act. While the court's ruling is limited to a Section 8 household, it may ultimately be instructive for non-subsidized housing.
The pertinent facts were as follows: Bertha Guy rented an apartment in a four-unit dwelling in New Brunswick from plaintiff Robert Maglies. In 1991, Guy began participating in the Section 8 Housing Choice Voucher Program under which she received a rent subsidy funded by the United States Department of Housing and Urban Development (HUD). This subsidy was paid pursuant to a “Housing Assistance Payment Contract” between plaintiff, Guy and the Department of Community Affairs (DCA), which administers the Section 8 program for HUD as a public housing agency. In 2005 the rent was $647 per month, with Guy paying $233 and the Section 8 subsidy paying the remaining $414. In 2001, Guy's daughter, Sherri Jennings, moved into the apartment. Jennings was not a party to the lease or the Housing Assistance Payment Contract. However, she was designated in both documents as an occupant of the household.
Guy died on March 30, 2005, leaving Jennings as the sole occupant of the apartment. Jennings failed to make timely payment of the rent for April 2005. When Jennings subsequently attempted to tender Guy's share of the rent, plaintiff refused to accept it because he did not want to lease the apartment to Jennings, who has a poor credit history and also allegedly suffered from psychological problems that would prevent her from taking care of herself or the apartment.
Based on Jennings' failure to pay the April rent, plaintiff brought an action against Guy's estate for summary dispossession for nonpayment of rent. The trial court permitted Jennings to intervene and subsequently converted the case into an eviction action in which both parties sought a determination of Jennings' right to retain possession of the apartment. The trial court concluded in a brief oral opinion that under the federal statutes and regulations governing the Section 8 housing subsidy program that Jennings,
“was a bona fide remaining member of the tenant family at the time Ms. Guy died ··· [and] shall enjoy all occupancy rights to which she was entitled prior to her mother's death, since a remaining family member's occupancy rights are not terminated by the death of any member.”
On July 11, 2005, the trial court entered an order that states in pertinent part: 2. Sherry Jennings was a bona fide family member of Bertha Guy who was living in the unit with the permission of the plaintiff. 3. As a remaining family member, Sherry Jennings can continue to occupy the unit. Her right of occupancy is not terminated by the end of the lease or by the death of Bertha Guy. 4. Sherry Jennings can remain as an occupant as long as she timely pays her rent.
Accordingly, the trial court ordered plaintiff landlord to allow Jennings to continue occupancy of the apartment provided she pays the rent. The court further ordered that Jennings' rental payments, which were being held in escrow by Central Jersey Legal Services, be released to the plaintiff, who could accept the rent without waiving his right to appeal. Although Jennings had argued that she was also entitled to continue her occupancy of the apartment under the New Jersey Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, the trial court did not address this point.
On appeal, plaintiff landlord argued that both the federal statutes and regulations governing the Section 8 housing assistance program nor the Anti-Eviction Act conferred any right upon Jennings to continue occupancy of the apartment Plaintiff leased to her mother. The Appellate Division agreed and therefore reversed the order that allowed Jennings to succeed to Guy's tenancy.
The Appellate Court opined that the federal law that governs the Section 8 program allows property owners to select their tenants and does not authorize occupants to succeed another’s tenancy. The Court found nothing in the statutory provisions governing the Section 8 housing choice voucher program, 42 U.S.C.A. § 1437f(o), its implementing regulations, 24 C.F.R. § 982, or the HUD guidelines for the program set forth in the Housing Choice Voucher Program Guidebook, that supported Jennings' claim that she is entitled to succeed to the tenancy rights in the apartment her mother leased from plaintiff. In the absence of an affirmative grant of such a succession right in the federal statutes and regulations, the court concluded that this right should not be implied.
The Supreme Court held that a functional co-tenant is one who can show that she has been continuously in residence; that she has been a substantial contributor toward satisfaction of the tenancy’s financial obligations; and that her contribution has been acknowledged and acquiesced to by her landlord-is entitled to invoke the protections of the Anti-Eviction Act.
This case presented two issues of first impression to the Supreme Court: Whether either the federal law governing the Section 8 program or the Anti-Eviction Act should prevent the property owner from successfully evicting the tenant through a summary dispossess action.
The Court tackled the Section 8 program issue first. The Court reasoned that since the Maglies consented to Jennings’ addition to Guy’s leasehold, the “consented-to financially contributing family member occupant” should be allowed to the continued possession of the leased premises once the tenant named on the lease dies. The Court concluded that once a Section 8 tenant and family enter into a lease with a landlord, state law determines any issue regarding continued right to possession. There is authority in New Jersey common law that holds that upon a tenant’s death, the tenancy passes to her estate.
The Court then addressed the second issue pertaining to whether Jennings was entitled to continued possession pursuant to the Anti-Eviction Act. The Court’s ruling indicates there is a need to look beyond the “four corners” of the lease to determine the relationship between the parties in a transaction. Here, it is the Anti-Eviction Act’s purpose to keep residential tenants in homes and avoid the imposition of eviction when the tenants’ financial and other responsibilities have been met. The Court held that cases that pose these similar issues should be dealt with on a case-by-case analysis. On remand to the trial court, if Jennings can show she was the substantial equivalent of a contributing residential co-tenant in this publicly-supported unit, the Anti-Eviction Act will not sustain her eviction merely because the named tenant in the lease, her mother, passed away.
As such, Landlords have to be conscious of the fact that their tenants, particularly those who participate in the Section 8 voucher program, may try to add other occupants to their lease. If these tenants are allowed to add additional occupants, they may fall in the same category as Ms. Jennings and may possibly succeed in lawful possession of your apartment as a tenant. Property owners must be very particular in who they allow to reside in their buildings because ultimately they may turn into tenants for life.
Andrew B. Sobel, Esq. is an associate with the law firm of Levy Ehrlich & Petriello headquartered in Newark and on the web at www.lep-lawyers.com. He can be reached at (973) 643-0040, ext. 126 or by e-mail at Asobel@lep-lawyers.com. The information you obtain from this article is not to be considered legal advice. You should consult a qualified attorney to discuss any particular matter.
