Opinion
DOCKET NO. A-2580-12T3
07-21-2014
TERRELL AUDAIN, Plaintiff-Respondent, v. TREVA WILSON, Defendant-Appellant.
Essex-Newark Legal Services, attorneys for appellant (Khabirah H. Myers and Jose L. Ortiz, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and St. John.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-32436-12.
Essex-Newark Legal Services, attorneys for appellant (Khabirah H. Myers and Jose L. Ortiz, on the brief).
Respondent has not filed a brief. PER CURIAM
Defendant Treva Wilson appeals from a judgment of possession for nonpayment of rent in favor of plaintiff Terrell Audain entered by the Law Division on January 14, 2013. Following our examination of the arguments presented on appeal, in light of the record and the applicable law, we reverse and remand.
Audain sought to evict tenant Wilson for nonpayment of rent. Defendant is a participant in the federally funded Section 8 Tenant Based Housing Choice Voucher Program (Section 8) administered locally by New Jersey's Department of Community Affairs (DCA). See 42 U.S.C.A. 1437a. On June 1, 2012, DCA executed a Housing Assistance Payments contract with Audain and, on that date, she entered into a Section 8 Assisted Lease with Wilson. The rent under the contract is $1,250 and, under the Section 8 program, DCA provides assistance of $1,216 per month, making Wilson's rent $34 per month.
After she moved in, Wilson made numerous complaints to Audain regarding habitability problems with the apartment. She also contacted DCA which sent an inspector on August 27, 2012 to investigate her complaints, and a report was generated on September 11, stating that numerous corrective actions were necessary to bring the apartment into compliance with federal housing quality standards.
In October, Audain filed a summons and complaint for summary eviction against Wilson. The complaint specified that Audain was seeking eviction for Wilson's nonpayment of her $34 base rent for October 2012, $31 in attorney's fees, and $675 for nonpayment of the security deposit.
Plaintiff paid her base rent for October 2012, but withheld rent for November 2012. In November, Wilson arrived in court after her case was called, and after the court had entered a default judgment against her. On December 18, Wilson appeared in court without counsel and filed her first order to show cause, seeking a stay of the eviction pending a hearing on her motion to vacate the default judgment. She failed to appear on the return date. On January 4, 2013, Wilson filed a second order to show cause, which was denied. The court then entered an order for orderly removal of Wilson and stayed execution of the warrant until January 11, 2013.
Wilson filed a third order to show cause on January 8, which was granted, followed by a hearing. The judge also ordered that the default judgment order be vacated upon proof that the landlord accepted rent after the judgment and that the landlord must prove that he obtained a certificate of habitability from the City of East Orange for the property.
During the hearing, Wilson and plaintiff's wife, Rana Audain, appeared before the judge. Mrs. Audain testified that Wilson now owed $744, representing $675 for the security deposit, and $34 for rent from November, December, and January 2013. The judge determined that $102 was due, which represented Wilson's base rent of $34 for those months and that $675 for the security deposit did not constitute rent. Audain also admitted that she had received the Section 8 payment for the January rent and had cashed that check.
Audain testified that she sought to evict Wilson from the apartment and the judge stated that "that's not your choice. Under the law in a nonpayment case, if a tenant has the money, the tenant has the right to have the complaint dismissed." Audain argued that Wilson "continually takes the valves off of her radiators in her unit which is causing [Audain's] boiler to empty out prematurely. [They] constantly have to refill it throughout the day because everything is going to [Wilson's] unit, nothing is going to the other unit," which is the Audain's unit. Moreover, Audain testified that by removing the valves, Wilson has "caused a ton of mold to develop around the home."
Wilson testified that she owed Audain $102 and that she was willing and able to pay that amount at the hearing. Wilson also testified to issues surrounding the heat and overall condition of the apartment, which the judge found irrelevant to "this nonpayment case." Wilson further testified that she was awaiting a certificate of habitability for her apartment. The judge did not address habitability.
Instead, the judge determined that Audain was justified in asking for Wilson's eviction from the property due to nonpayment. The judge stated, "even though it's a nonpayment case, Ms. Wilson, I am going to accelerate the order. And I'm going to tell you to take the $102 that you have and use it for moving . . . [i]t's unfortunate, you probably will be losing your Section 8 qualification." He determined, "this is a nonpayment case, and I find that the landlord is justified in asking for your eviction." He further stated, "I'm vacating the prior judgment . . . because the landlord did accept a payment from Section 8 after that judgment was entered. It was entered on December 4. But, I'm entering a new judgment for possession as of today." He said, "even though the tenant says that she's got the $102 and I will believe her, it is irrelevant on the return date of a second order to show cause and in particular, following an order of the removal." The judge vacated the December default judgment for possession because Audain had accepted Section 8 payments for January after the entry of the December judgment.
The judge then entered a new judgment for possession based on nonpayment of rent, effective January 14, 2013, and ordered Wilson's eviction. Wilson filed an emergent application for a stay pending appeal, which we granted. This appeal ensued.
A party seeking to overturn a judgment of possession must demonstrate on appeal that the judge abused his or her discretion in entering the judgment. Cmty. Realty Mgmt. v. Harris, 155 N.J. 212, 236 (1998).
Federal law permits a tenant of federally funded public housing to rely on state law governing eviction procedures where the law provides the tenant procedural rights in addition to those provided by federal law. 24 C.F.R. 247.6(c)(1976). Thus, federal public housing tenants can rely on New Jersey's additional procedural protections found in New Jersey's Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12 (Act).
The Act specifies several grounds upon which a landlord may remove a residential tenant, including if the tenant "fails to pay rent due and owing under the lease [.]" N.J.S.A. 2A::18-61.1a. "The Act affords 'residential tenants the right, absent good cause for eviction, to continue to live in their homes without fear of eviction . . . and thereby to protect them from involuntary displacement.'" 224 Jefferson Condo. Ass'n v. Paige, 346 N.J. Super. 379, 383 (App. Div.)(quoting Morristown Mem'l Hosp. v. Wokem Mortg. & Realty Co., 192 N.J. Super. 182, 186 (App. Div. 1983)), certif. denied, 172 N.J. 179 (2002). It "reflects a public policy barring dispossess actions except upon strict compliance with the notice and procedural requirements of the Act." Ibid. (citing Montgomery Gateway E. I v. Herrera, 261 N.J. Super. 235, 241 (App. Div. 1992); Bayside Condos., Inc. v. Mahoney, 254 N.J. Super. 323, 325 (App. Div. 1992)).
Such strict compliance is required even in circumstances in which the landlord has acted in good faith and the tenant has not been prejudiced. Ibid. (citing Weise v. Dover Gen. Hosp., 257 N.J. Super. 499, 504 (App. Div. 1992)). We have explained that "'the Anti-Eviction Act is remedial legislation deserving of liberal construction,' and that its 'overall purpose' is to 'protect [] blameless tenants from eviction'." McQueen v. Brown, 342 N.J. Super. 120, 133 (App. Div. 2001), aff'd, 175 N.J. 200 (2002)(internal citations omitted).
N.J.S.A. 2A:18-55 provides that in an action instituted under nonpayment of rent "the tenant . . . shall at any time on or before entry of final judgment, pay to the clerk of the court the rent claimed to be in default, together with the accrued costs of the proceedings, all proceedings shall be stopped." See, e.g., Little, supra, 135 N.J. at 281.
Here, on the day of the hearing, before the new judgment was entered, defendant stated that she had the money and was willing to pay the outstanding rent, and the judge accepted her representation. However, in reliance on Little, he stated that, "the judge does have the right to consider any further or different complaints offered by the landlord and the landlord has satisfied me that there are problems with the heat and mold."
Rather than accepting defendant's offer of payment, the court entered judgment of possession in favor of the landlord. When a tenant, before the entry of final judgment in summary dispossess proceedings, pays the outstanding rent together with the accrued costs of the proceedings, she may have the proceedings dismissed. Harris, supra, 155 N.J. at 235. In effect, the failure to pay rent can be cured.
In Stanger v. Ridgeway, 171 N.J. Super. 466 (1979), we agreed that N.J.S.A. 2A:18-55 required payment before or on the day judgment was entered in order to nullify a judgment for possession for nonpayment of rent. When the default judgment was set aside, the trial court should have determined the amount of rent due and allowed defendant the opportunity to pay that amount. Thus, the effect of defendant's payment of rent would dismiss the complaint and continue the tenancy at issue. Musselman v. Carroll, 289 N.J. Super. 549, 555 (1996). Once plaintiff received the rent, the trial court's jurisdiction to terminate the tenancy would have ended; if plaintiff wanted to continue to dispossess defendant, he could not do so without filing a new complaint based on new grounds. Id. at 556; see Vineland Shopping Ctr., Inc. v. DeMarco, 35 N.J. 459, 465 (1961)(Upon payment of past-due rent, "the court's jurisdiction ends.").
In addition, we briefly address the court's reliance on Little as support to justify granting possession to plaintiff. Little emphasizes that the summary dispossess statute is intended to "afford landlords an expedited procedure to regain possession of the leased premises, thereby avoiding the delays ordinarily associated with common-law ejectment actions." Little, supra, 135 N.J. at 280. Possession of the premises is the only available remedy. Ibid.
The specific purpose of a summary dispossess proceeding is "to secure performance of the rental obligation in actions based on non-payment of rent." Little, supra, 135 N.J. at 281 (citing Vineland Shopping Ctr., supra, 35 N.J. at 469). If the tenant tenders the rent prior to the final judgment in a proceeding based on nonpayment of rent, the summary remedy is no longer available to the landlord. N.J.S.A. 2A:18-55.
At the hearing, the judge found that, as of January 2013, defendant owed $102 in outstanding rent and that she was prepared to pay that amount at that time. Consequently, upon payment, the complaint should have been dismissed. We remand to the trial court to afford defendant the opportunity to promptly pay the $102 in outstanding rent found due and owing. If defendant pays that amount, the complaint must be dismissed. If plaintiff seeks to evict defendant for nonpayment of rent beyond January 2013 or based on any other grounds under the Act, that will have to be addressed by the filing of a new complaint.
Reversed and remanded for further proceedings in conformity with this decision. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION