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Superior Court of New Jersey, Appellate Division.

NEW BRUNSWICK UAW, Plaintiff–Appellant, v. TREASA FENNIE, Defendant–Respondent.

DOCKET NO. A–4617–11T4

    Decided: March 06, 2014

Before Judges Grall, Nugent and Accurso.Tarella & Liftman, attorneys for appellant (James A. Tarella, of counsel and on the brief).   Respondent has not filed a brief.

Plaintiff New Brunswick UAW appeals from the dismissal of its Special Civil Part complaint for eviction of defendant Treasa Fennie for non-payment of rent.   We reverse and remand for a hearing.

Plaintiff operates a project-based, federally subsidized, Section 8 rental building, the John Fricano Tower Apartments in New Brunswick.   Defendant has lived in the building since 2009.   Department of Housing and Urban Development (HUD) regulations and defendant's lease require defendant to cooperate with the landlord in completing the forms required for annual recertification for Section 8 assistance.   Although defendant had twice previously completed recertification in a timely manner, her 2012 recertification did not proceed smoothly.

Because there was no hearing and defendant's brief to this court was suppressed, we are unable to discern the exact nature of the disagreement over the required forms.   Suffice it to say, the parties disagreed over the meaning of certain requirements, and defendant claimed she was treated in a less than respectful manner by plaintiff's agent.   Plaintiff, for its part, complained that defendant refused to cooperate and had filed numerous complaints against it before the Division on Civil Rights, and in the Law Division and municipal court.   Although defendant met with representatives of the landlord before the deadline for recertification and scheduled another meeting to complete the forms prior to their due date, she did not sign the documents until a day or two after the deadline.

Because defendant missed the deadline to recertify, plaintiff claimed her subsidy lapsed.   Instead of owing the subsidized monthly rent of $265, plaintiff claimed that defendant owed the full market rent of $1340.   Defendant's subsidy was restored for the following month, and her rent became $189.   Plaintiff refused defendant's tender of further rent, however, and instituted a summary dispossess action for her failure to pay the $1340 for the prior month.

The judge dismissed plaintiff's complaint on the trial date because he concluded that the case was not one for non-payment of rent, but turned instead on defendant's recertification.   The judge likewise denied plaintiff's motion for reconsideration, stating “this is not a matter of fraud ․ or willfulness on the defendant's part․  [A]t best, both sides took ․

a firm position and caused ․ a crisis where there shouldn't have been.”   This appeal followed.

We disagree with the trial court that that this was not a case for alleged non-payment of rent.   Good cause to evict exists where “[t]he person fails to pay rent due and owing under the lease.”  N.J.S.A. 2A:18–61.1(a).  “Under this provision, rent must be ‘due, unpaid and owing’ ” for plaintiff to succeed on its claim.  Sudersan v. Royal, 386 N.J.Super. 246, 252 (App.Div.2005).   Viewed through this lens, the issue of defendant's recertification for rental assistance is clearly subsumed within plaintiff's complaint for non-payment of the unsubsidized rent it claims was due for the month at issue.

Plaintiff asserts that because there is no dispute that the unsubsidized rent was not paid, we should exercise original jurisdiction pursuant to Rule 2:10–5, to enter judgment of possession for plaintiff.   It rests this argument on Edward Gray Apartments/Region Nine Hous. Corp. v. Williams, 352 N.J.Super.   457 (App.Div.2002).   In Edward Gray, we held that the tenant's failure to pay the unsubsidized monthly rental rate following termination of her Section 8 rental assistance constituted grounds for a judgment of possession.  Id. at 467.   The tenant in Edward Gray, however, was engaged in fraud, which resulted in the termination of her rental subsidy.  Id. at 463–64.   The facts in that case are wholly dissimilar to those here.  Edward Gray thus provides no guidance in this “gap” case and certainly no basis for the exercise of original jurisdiction.  Allstate Ins. Co. v. Fisher, 408 N.J.Super. 289, 301 (App.Div.2009) (holding that original jurisdiction should be exercised “with great frugality and in none but a clear case free of doubt.”).

Here, unlike in Edward Gray, there is no question but that defendant's circumstances qualified her for rental assistance.   Based on the little information we have about what went on between the parties, we do not disagree with the judge's observation that the one-month gap in defendant's subsidy appeared a needless crisis.   Although plaintiff advised defendant that she could not recertify after the deadline and have her rent adjusted retroactively, it cited no authority for that position, and has not argued it to us.   Although obviously not the same as recertification, a tenant may cure her failure to pay rent even after trial.  N.J.S.A. 2A:18–55;  24 C.F.R.

§ 247.3(c)(4) (incorporating the grace period into federal law);  Housing & Redev.   Auth. of Twp. of Franklin v. Mayo, 390 N.J.Super. 425, 433 (App.Div.2007).

The question for the court on remand then is whether the obviously strained relations between the parties impeded defendant's timely recertification for rental assistance.   If the court concludes that the one-month gap in defendant's subsidy is a result of her own conduct, then it must consider whether there are means of curing the breach, which do not thwart federal housing objectives.   See Mayo, supra, 390 N.J.Super. at 434–35 (remanding to allow tenant to cure breach arising from unauthorized lodgers by proving unauthorized persons were eligible for residence in public housing and would not have increased the rent of the approved family unit).   As in Mayo, a remand for a hearing on whether recertification after the deadline allows for restoration of defendant's subsidy for the one-month gap, balances federal policy of providing housing to low-income persons, with the interests, needs, and obligations of tenants and landlords and does not create an obstacle to the accomplishment of the objectives of the federal government.   See Ibid.

We note from the record that defendant represented to the court that she sought the assistance of Legal Services, but a conflict involving plaintiff's counsel prevented it from representing her in this matter.   Plaintiff appears to receive Social Security disability (SSD), which along with possible mental health or emotional issues, may make a referral to the Community Health Law Project appropriate.

Reversed and remanded for further proceedings consistent with this opinion.   We do not retain jurisdiction.


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