Opinion
DOCKET NO. A-1475-10T4
01-15-2013
NEWARK HOUSING AUTHORITY, Plaintiff-Appellant, v. VERONICA MELVIN, Defendant-Respondent.
Ellen Michelle Harris, Chief Legal Officer, attorney for appellant Newark Housing Authority (Elio R. Mena, Senior Associate Counsel, on the brief). Hanlon Neimann, P.C., attorneys for amicus curiae National Apartment Association and New Jersey Apartment Association (John J. McDermott and Christopher J. Hanlon, on the brief). Elio R. Mena (Senior Associate Counsel, Legal Department of the Newark Housing Authority) and Lisa L. Walker (Executive Director/General Counsel, Housing and Development Law Institute) of the D.C. bar, admitted pro hac vice, attorneys for amicus curiae Housing and Development Law Institute (Ms. Walker, on the brief). Veronica Melvin, respondent pro se, has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-10768-10.
Ellen Michelle Harris, Chief Legal Officer, attorney for appellant Newark Housing Authority (Elio R. Mena, Senior Associate Counsel, on the brief).
Hanlon Neimann, P.C., attorneys for amicus curiae National Apartment Association and New Jersey Apartment Association (John J. McDermott and Christopher J. Hanlon, on the brief).
Elio R. Mena (Senior Associate Counsel, Legal Department of the Newark Housing Authority) and Lisa L. Walker (Executive Director/General Counsel, Housing and Development Law Institute) of the D.C. bar, admitted pro hac vice, attorneys for amicus curiae Housing and Development Law Institute (Ms. Walker, on the brief).
Veronica Melvin, respondent pro se, has not filed a brief. PER CURIAM
Plaintiff Newark Housing Authority (NHA) appeals from an October 7, 2010 order dismissing without prejudice its tenancy complaint. The judge ruled that a known registered adult occupant of an apartment unit in a public housing project has a due process right to notice of an eviction complaint against a tenant, filed pursuant to N.J.S.A. 2A:18-61.1e(2) and 2A:18-61.1p. Rather than reach the constitutional issue, we focus on whether the registered adult occupant enjoys protection under the Anti-Eviction Act (the Anti-Eviction Act), N.J.S.A. 2A:18-61.1 to -61.12, as a "functional co-tenant," pursuant to Maglies v. Estate of Guy, 193 N.J. 108, 126 (2007). Because we are unable to determine whether the adult qualifies as a "functional co-tenant," we remand for further proceedings consistent with this opinion.
Plaintiff, a public housing authority (PHA), leased an apartment to defendant Veronica Melvin (Veronica). An NHA tenant profile identified Veronica's adult sister, Fatykeisha Melvin (Fatykeisha), as an authorized occupant of the premises. Plaintiff alleged that Veronica's son engaged in drug-related activity, and attempted to evict all of the apartment's occupants.
Fatykeisha's one-year-old daughter also lived in the apartment. The tenant profile, not produced on appeal, authorized two other adult occupants to live in the apartment, but they did not participate in the tenancy proceedings and are not part of this appeal.
Plaintiff filed a complaint against Veronica seeking possession of the premises pursuant to N.J.S.A. 2A:18-61.1e(2) and 2A:18-61.1p. Plaintiff did not notify Fatykeisha of the eviction proceedings.
N.J.S.A. 2A:18-61.1(e)(2) permits eviction of those who have "substantially violated or breached [a] covenant[] . . . in [a] lease . . . pertaining to illegal uses of controlled dangerous substances . . . provided that such covenant . . . conforms to federal guidelines regarding such lease provisions and was contained in the lease at the beginning of the lease term." And N.J.S.A. 2A:18-61.1(p) provides, in part, the following basis for terminating a residential tenancy:
The person has been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this act for . . . the use, possession, manufacture, dispensing[,] or distribution of a controlled dangerous substance . . . within or upon the leased premises or the building or complex of buildings and land appurtenant thereto . . . .
Veronica appeared in court on the trial date and agreed to vacate the premises. The judge then entered judgment for possession in plaintiff's favor and plaintiff obtained a warrant of removal of all of the apartment's occupants. Fatykeisha filed an order to show cause (OTSC) to stay her removal. She appeared pro se, and testified that plaintiff failed to provide her with notice of the eviction complaint despite her status as a known authorized occupant for approximately twenty-one years.
The judge agreed with Fatykeisha and dismissed the eviction complaint without prejudice. He concluded that plaintiff violated Fatykeisha's right to procedural due process by depriving her of the opportunity to defend the illegal activity allegations. He explained that, pursuant to N.J.S.A. 2A:18-57, a judgment for possession of the named tenant requires eviction of all occupants. He pointed out that Rule 6:3-4(a) allows occupants to be named as defendants in tenancy actions so that such occupants do not later petition the court after service of the warrant of removal, claiming that their procedural due process rights were violated. The judge filed four amplifications of his decision pursuant to Rule 2:5-1(b). This appeal followed.
The judge further stated that he could have allowed amendment of the complaint to name Fatykeisha as a defendant, "except that that would have been frivolous inasmuch as there were other named occupants who had not appeared at anytime in this action," and he found that "an occupant, known to a landlord as being an authorized occupant of an apartment, cannot be evicted without having been named as a defendant in the eviction action and that to permit such a person to be evicted would violate the principle of procedural due process."
On appeal, plaintiff argues that the judge erred by concluding that Fatykeisha was denied procedural due process. HDLI asserts that the judge misinterpreted Rule 6:3-4(a), and the NAA and NJAA argue that Fatykeisha lacked standing to challenge her eviction. HDLI, NAA, and NJAA contend that the judge's decision is against public policy.
After plaintiff appealed from the dismissal of its complaint, we allowed the Housing and Development Law Institute (HDLI), the National Apartment Association (NAA), and New Jersey Apartment Association (NJAA) to file amicus briefs.
I.
The judge focused on Fatykeisha's purported constitutional right to procedural due process as a "known authorized occupant" of the apartment. However, this case turns on a non-constitutional issue, that is, whether Fatykeisha is a "functional co-tenant." As the Supreme Court recently reiterated in The Committee to Recall Robert Menendez from the Office of United States Senator v. Wells, 204 N.J. 79, 95-96 (2010),
In addressing this and like disputes [(senatorial recall process)], we strive to avoid reaching constitutional questions unless required to do so. See Harris v. McRae, 448 U.S. 297, 306-07, 100 S. Ct. 2671, 2683, 65 L. Ed. 2d 784, 798 (1980) ("[I]f a case may be decided on either statutory or constitutional grounds, this Court, for sound jurisprudential reasons, will inquire first into the statutoryThis appeal does not warrant a deviation from the policy of constitutional restraint.
question."); Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006) ("Courts should not reach a constitutional question unless its resolution is imperative to the disposition of litigation." (citations omitted)); accord Burnett v. County of Bergen, 198 N.J. 408, 420 (2009) (quoting Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 109 (1992) (Pollock, J., concurring)); Bell v. Twp. of Stafford, 110 N.J. 384, 389 (1988).
The question is whether Fatykeisha enjoys the status of a "functional co-tenant," as defined in Maglies, supra, 193 N.J. at 122. If so, she therefore receives protection under the Anti-Eviction Act. In Maglies, the Court addressed whether the Anti-Eviction Act applied to a financially contributing occupant family member who was in continuous residence with the landlord's acquiescence and consent. For approximately thirty years, Bertha Guy resided in an apartment owned by Robert Maglies. Id. at 113. She qualified for federal Section 8 assistance. Ibid. In 2001, Guy's adult daughter, Sherri Jennings, who was mentally disabled, moved into her mother's apartment. Ibid. Guy died in 2005, and Maglies refused to accept Jennings's rent payments because she was not the named tenant to whom he had rented the apartment, among other reasons. Id. at 114.
Maglies then filed an eviction complaint against the Estate of Bertha Guy for nonpayment of rent. Jennings intervened and claimed "that she had a right to possession of the premises." Ibid. The trial court held that Jennings could remain in possession of the apartment and we reversed. Id. at 115. The Supreme Court then reversed our decision.
The Court held that the Anti-Eviction Act "protects the surviving resident of this household from eviction without cause, notwithstanding her label as a family-member occupant, provided she can show that she was the functional equivalent of a co-tenant." Id. at 112. The Court remanded for a determination of whether Jennings was
a functional co-tenant — 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. [Id. at 126.]
The Anti-Eviction Act prohibits evictions of "lessee[s]," "tenant[s]," and the "assigns, under-tenants[,] or legal representatives of such lessee[s] or tenant[s]" without cause. N.J.S.A. 2A:18-61.1. We have stated that "[t]he inclusion of 'assigns, undertenants[,] and legal representatives' suggests a legislative intent to afford protection to a broader category of residents than merely the person obligated under the written or oral lease." Riverview Realty, Inc. v. Williamson, 284 N.J. Super. 566, 569 (App. Div. 1995).
The Court explored the intent and purpose of the Anti-Eviction Act, which is "to protect residential tenants against unfair and arbitrary evictions by limiting the bases for their removal." Id. at 121 (internal quotation marks omitted); see also Franklin Tower One, LLC v. N.M., 157 N.J. 602, 614 (1999); 3519-3513 Realty, LLC v. Law, 406 N.J. Super. 423, 425-26 (App. Div. 2009). The Court determined that a family member occupant or "functional co-tenant," or "tenant[]-in-fact," may be protected under the Anti-Eviction Act, provided that such a person can satisfy its three-part test. Maglies, supra, 193 N.J. at 122, 126.
On this record, it is unclear whether Fatykeisha qualified as a functional co-tenant under Maglies's three-prong test. Her testimony at the OTSC hearing did not address whether she continuously resided at defendant's apartment or substantially contributed towards the tenancy's financial obligations, and whether plaintiff acknowledged and acquiesced in her contribution. As a result, we remand and instruct the judge to determine if Fatykeisha qualifies as a functional co-tenant as defined in Maglies.
We do not read Maglies to apply only to Section 8 recipients; a full reading of the opinion suggests otherwise. See, e.g., id. at 145-46 (Hoens, J., dissenting) (indicating that "[i]n effect, the majority decision extends a unilateral option to a tenant's co-habiting family members," and "created a new status . . . . [The majority created] a broad new category that, it would appear, includes every occupant and family member listed on every lease."). The factual context of Maglies necessitated a comprehensive discussion regarding the implications of the subsidies provided under Section 8; however, the Court did not state that only Section 8 recipients meet the test. Here, the judge recognized the potential application of Maglies to affording Fatykeisha protections under the Act.
II.
When the Anti-Eviction Act provides the grounds for eviction, joinder may be required under Rule 4:28-1(a) if it is shown that the Act applies to the particular occupant. Rule 6:3-4 provides, in pertinent part:
(a) No Joinder of Actions. Summary actions between landlord and tenant for the recovery of premises shall not be joined with any other cause of action, nor shall a defendant in such proceedings file a counterclaim or third-party complaint. A party may file a single complaint seeking the possession of a rental unit from a tenant of that party and from another in possession of that unit in a summary action for possession provided that (1) the defendants are separately identified by name or as otherwise permitted by R[ule] 4:26-5(c) or (d) and R[ule] 4:26-5(e), and (2) each party's interests are separately stated in the complaint.The underlined portion, added in September 2006, "permits the landlord to join as defendants both the actual tenant and any other person in possession provided each is identified and the interest of each is specified." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 6:3-4 (2013). As plaintiff argues, Rule 6:3-4(a) is permissive. The rule does not require joinder of known, authorized occupants; rather, it permits joinder of "another in possession." Although possession is not defined in the Court Rules, Black's Law Dictionary 1281 (9th ed. 2009) defines it as "[t]he right under which one may exercise control over something to the exclusion of all others." An authorized occupant may not be "in possession" of a rental premise if he or she does not continuously reside there and contribute financially to the expenses. See Pressler & Verniero, supra, comment 2.3.2. on R. 6:3-4 (indicating that "[t]he [Anti-Eviction Act] . . . does not apply to a roomer, guest, lodger[,] or other licensee"). Thus, joinder of "another in possession" as permitted by Rule 6:3-4(a), as opposed to all "known, authorized occupants" as the lower court urged, is consistent with the enumerated protected classes of persons under the Anti-Eviction Act, see N.J.S.A. 2A:18-61.1, and functional co-tenants, see Maglies, supra, 193 N.J. at 126, as all of them imply some sort of possessory interest in the rental premises.
[(Emphasis added).]
NAA and NJAA contend that an authorized occupant, such as Fatykeisha, would not "be entitled to object to the eviction under New Jersey's established principles of standing without establishing a contractual relationship with Plaintiff." Fatykeisha, however, would be entitled to oppose eviction if she was covered under the Anti-Eviction Act. NAA and NJAA seem to recognize that proposition, stating "that persons with long-term possessory interests in a leasehold may have recognized rights even where they are not named tenants. That is because they can become tenants through the action (or acquiescence) of the landlord."
III.
We reject plaintiff's contention that naming multiple defendants effectively eliminates the strict liability standard established in Department of Housing v. Rucker, 535 U.S. 125, 122 S. Ct. 1230, 152 L. Ed. 2d 258 (2002).
In Rucker, the petitioners argued that 42 U.S.C.A. § 1437d(l)(6) required "lease terms that allow a public housing authority to evict a tenant when a member of the tenant's household or a guest engages in drug-related criminal activity, regardless of whether the tenant knew, or had reason to know, of that activity." Id. at 127-28, 122 S. Ct. at 1232, 152 L. Ed. 2d at 264-65. The Supreme Court agreed, holding that 42 U.S.C.A. § 1437d(l)(6) "requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity." Id. at 136, 122 S. Ct. at 1236, 152 L. Ed. 2d at 270.
That statute states, in pertinent part:
(1) Each public housing agency shall utilize leases which — (6) provide that . . . any drug-related criminal activity on or off [the] premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy . . . . [42 U.S.C.A. § 1437d.]
Regarding the discretionary nature of the determination to evict a tenant, the Court recognized:
The statute does not require the eviction of any tenant who violated the lease provision. Instead, it entrusts that decision to the local public housing authorities, who are in the best position to take account of, among other things, the degree to which the housing project suffers from "rampant drug-related or violent crime," 42 U.S.C.[A.] § 11901(2) (1994 ed. and Supp. V), "the seriousness of the offending action," 66 Fed. Reg., at 28803, and "the extent to which the leaseholder has . . . taken all reasonable steps to prevent or mitigate the offending action," ibid. It is not "absurd" that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity. Such "no-fault" eviction is a common "incident of tenant responsibility under normal landlord-tenant law and practice." 56 Fed. Reg., at 51567. Strict liability maximizes deterrence and eases enforcement difficulties.
[Id. at 133-34, 122 S. Ct. at 1235, 152 L. Ed. 2d at 268.]
In Rucker, the petitioners argued that allowing eviction of tenants for drug-related activity regardless of whether the tenant knew or should have known of such activity violated procedural due process rights. Id. at 135, 122 S. Ct. at 1236, 152 L. Ed. 2d at 269. However, the Court held that state eviction proceedings sufficiently guarded against any potential abuses. Id. at 135-36, 122 S. Ct. at 1236, 152 L. Ed. 2d at 269-70. Thus, Rucker allows for the eviction of tenants, regardless of whether they knew or should have known of the unlawful drug activity. The Court in Rucker did not address whether evicting authorized, known occupants without naming them as defendants is violative of procedural due process.
Rucker has since been applied to PHA eviction actions in reported cases. However, none of those cases support plaintiff's argument. In Oakwood Plaza Apartments v. Smith, 352 N.J. Super. 467, 469 (App. Div. 2002), a Section 8 tenant was arrested for drug-related activity. When suit was instituted against the tenant, she had allegedly vacated the premises, leaving her children in the apartment under the legal custody of another woman. Ibid. The woman intervened in the eviction action on the children's behalf, claiming that their innocence precluded eviction under New Jersey law. Ibid. The trial court agreed with the woman's position and dismissed the eviction action. Ibid.
We reversed and remanded, holding that the lower court should have determined whether the landlord "exercised its discretion in a manner consistent with federal statute." Id. at 474-75. We also quoted a non-binding letter that the HUD Assistant Secretary wrote to PHA directors, directing them to consider mitigating factors in the landlord's decision to evict tenants:
"[A]fter Rucker, PHAs remain free, as they deem appropriate, to consider a wide range of factors in deciding whether, and whom, to evict as a consequence of . . . a lease violation. Those factors include, among many other things, the seriousness of the violation, the effect that eviction of the entire household would have on household members not involved in the criminal activity, and the willingness of the head of household to remove the wrongdoing household member from the lease as a condition for continued occupancy. The Secretary and I urge [PHAs] to consider such factors and to balance them against the competing policy interests that support the eviction of the entire household."
[Id. at 471-72.]
And, in Long Branch Housing Authority v. Villano, 396 N.J. Super. 185, 190 (App. Div. 2007), the tenant claimed that she had no knowledge of a number of drug transactions occurring in her public housing unit. The trial court entered a judgment of no cause of action against the PHA based upon N.J.S.A. 2A:18-61.1(p), which allows eviction of a tenant that knowingly harbors a person who committed a drug-related activity. Id. at 191.
We held that an innocent tenant may be evicted under the terms of his or her lease. Id. at 193-94. We further urged the PHA to "reconsider its determination in light of the evidence presented at the trial." Id. at 193-94. Specifically, we remanded so that the trial judge could determine, pursuant to N.J.S.A. 2A:18-61.1(e)(2), (1) whether the tenant "'substantially breached or violated' any covenant or agreement in the lease pertaining to the illegal uses of CDS in the Authority's premises"; and (2) whether "the relevant lease terms conform to applicable federal guidelines." Id. at 192-94.
Smith and Villano do not address whether procedural due process rights are violated when an authorized occupant, known to a landlord, is evicted based upon a ground enumerated in the Anti-Eviction Act without having been named as a defendant in the complaint. Instead, both cases address the rights of tenants, or those whose tenancy status was not challenged, like the intervenor in Smith. Thus, plaintiff has not provided legal support for its argument that naming multiple defendants effectively eliminates the strict liability standard that Rucker established.
IV.
HDLI contends the judge's holding that all occupants of a public housing unit must receive procedural due process conflicts with the federal regulations at 24 C.F.R. § 966.4(e)(8)(i) and (ii) (2012), which require that only a tenant receive notice of a landlord's decision to terminate a lease. The regulation provides, in pertinent part:
(e) The PHA's obligations. The lease shall set forth the PHA's obligations under the lease, which shall include the following:In his second amplification decision, the judge stated that he took "no position on the issue of whether [Fatykeisha] should have been given notice of termination and an opportunity to be heard at any prior proceeding or hearing." Rather, his opinion addressed her right to be heard at trial. Thus, whether the judge's holding conflicts with the federal regulations is not squarely before us.
. . . .
(8)(i) To notify the tenant of the specific grounds for any proposed adverse action by the PHA. (Such adverse action includes, but is not limited to, a proposed lease termination, transfer of the tenant to another unit, or imposition of charges for maintenance and repair, or for excess consumption of utilities.)
(ii) When the PHA is required to afford the tenant the opportunity for a hearing under the PHA grievance procedure for a grievance concerning a proposed adverse action:
(A) The notice of proposed adverse action shall inform the tenant of the right to request such hearing. In the case of a lease termination, a notice of lease termination, in accordance with paragraph (l)(3) of this section, shall constitute adequate notice of proposed adverse action.
(B) In the case of a proposed adverse action other than a proposed lease termination, the PHA shall not take the proposed action until the time for the tenant to request a grievance hearing has expired, and (if a hearing was timely requested by the tenant) the grievance process has been completed.
[25 C.F.R. § 966.4(e) (2012).]
Tenant is defined as an adult person "(1) who resides in the unit, and who executed the lease with the PHA as lessee of the dwelling unit, or, if no such person now resides in the unit, (2) [w]ho resides in the unit, and who is the remaining head of household of the tenant family residing in the dwelling unit." 24 C.F.R. § 966.53(f).
Because we have addressed only the issue of whether Fatykeisha qualifies as a "functional co-tenant," we need not analyze the remaining issues raised by plaintiff and amici. Therefore, we reverse and remand for a fact-finding hearing to determine whether the Anti-Eviction Act protects Fatykeisha from eviction without cause because she may qualify as a functional co-tenant under the three-prong test of Maglies. We do not retain jurisdiction.
In the event of an appeal following the remand proceedings, we direct that the parties notify (1) the attorney general pursuant to Rule 4:28-4(a)(1) that the constitutionality of the notice provisions of the Act and court rules have been questioned; and (2) Legal Services of New Jersey.
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION