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Superior Court of New Jersey, Appellate Division.

CENTENNIAL VILLAGE APARTMENTS, Plaintiff–Respondent, v. REGINA CARSTARPHEN, Defendant–Appellant.

DOCKET NO. A–2537–12T4

    Decided: March 25, 2014

Before Judges Waugh and Accurso.Sonia Bell argued the cause for appellant (South Jersey Legal Services, Inc., attorneys;  Ms. Bell, of counsel and on the brief). Thomas M. Pohle argued the cause for respondent (Greenblatt & Lieberman, LLC, attorneys;  Mr. Pohle, of counsel and on the brief).

Defendant Regina Carstarphen appeals from a judgment of possession based on false information she allegedly provided plaintiff Centennial Village Apartments on her application for an apartment.   Because plaintiff failed to prove defendant submitted a false application, we reverse.

Plaintiff operates a Section 8 project-based, federally subsidized, residential apartment complex in Camden.   Defendant applied to rent an apartment in the complex in August 2011.   She completed a written application in which she truthfully reported that she was employed by Walmart and was not on medical leave.   Because there was no apartment available, plaintiff placed defendant's name on a waiting list.

In March 2012, plaintiff sent defendant a letter asking if she were still interested in the apartment and requesting updated information.   Plaintiff also claims that it sent defendant a second letter at that time explaining its project preference for applicants employed for a minimum of six consecutive months.   Defendant returned an updated questionnaire advising of her continued interest in the apartment.   She denied receipt of the second letter.

In June, plaintiff advised defendant that it had an apartment for her.   Plaintiff returned to sign the lease on August 22.   She tendered her security deposit, paid her prorated first month's rent and was told she could move in immediately.   She did not advise defendant that she had been fired from her job at Walmart two weeks before for not showing up for work.   Paragraph 25 of the lease provides that giving false information to the landlord about income “or other factors considered in determining Tenant's eligibility and rent is material noncompliance with the lease subject to termination of tenancy.”   On August 27, five days after she moved in, defendant requested an interim adjustment of her rent, in accordance with the complex's subsidy program, because she was no longer employed.

Plaintiff sent defendant a notice to cease advising that she was in violation of her lease.   The notice stated:

Specifically, you have provided management with false information on your Rental Application in that you stated you had been employed at Wal–Mart and you were on “medical leave.”   Upon further investigation by the landlord it has been determined that you were fired and not on medical leave.

Had you been truthful in providing the correct information, your landlord would have obtained a landlord verification and an accurate status of your residency which would have affected its decision to rent the property to you.

You must come to the rental office within 5 days and amend your application to provide the correct and truthful information.   This is your formal notice that if you fail to comply with this notice to cease, we will have no alternative but to terminate your lease.

Defendant wrote to plaintiff advising that the information on her application was truthful and requesting that the landlord advise her of the information it claimed she falsified.   Plaintiff responded by sending defendant a notice terminating her tenancy repeating verbatim the language quoted above.   Plaintiff thereafter filed its complaint for possession alleging that defendant had violated the terms and conditions of the lease by providing “false information on her rental application.”

At trial, plaintiff argued, as it does on appeal, that defendant committed fraud in the “application process.”   Specifically, plaintiff alleged that defendant knew of the preference in plaintiff's “Resident Selection Plan” for continuously employed tenants;  was aware of the continuing duty to disclose any changes in the information provided on her application;  knew she had to be employed at the time she signed her lease in order to meet the preference in the Plan;  and failed to disclose when she signed the lease that she was no longer working.1

The judge found plaintiff advised defendant of the six-month continuous employment requirement, that defendant was not working at the time she signed the lease, and thus that defendant was “untruthful at the time she entered into the Lease.”   The judge made no finding that defendant made untruthful statements on her rental application.   Concluding that defendant had been untruthful in the “application process,” the judge entered a judgment of possession for plaintiff.   This appeal followed.

Defendant contends that the trial court lacked jurisdiction to issue the judgment of possession because the notices sent to her did not adequately inform her of the grounds on which plaintiff sought to terminate her tenancy.   We agree.

Defendant's tenancy is governed by the National Housing Act of 1934, 12 U.S.C.A. § 1701 to 1750g under the auspices of the Department of Housing and Urban Development (HUD), and by the New Jersey Anti–Eviction Act, N.J.S.A. 2A:18–61.1 to –61.12. As such, before instituting an action for eviction, plaintiff must satisfy federal and state due process requirements.   See Hous. Auth. of the City of Newark v. Raindrop, 287 N.J.Super. 222, 229 (App.Div.1996).   Among other things, it must give the tenant written notice of lease termination stating, “the reasons for the landlord's action with enough specificity so as to enable the tenant to prepare a defense.”  24 C.F.R. § 247.4(a)

(2014);  N.J.S.A. 2A:18–61.2. Failure to do so denies the trial court jurisdiction to issue a judgment of possession.   See Riverview Towers Assocs. v. Jones, 358 N.J.Super. 85, 88 (App.Div.2003).

As particularly pertinent here, 24 C.F.R. § 247.6 specifies that “the landlord must rely on grounds which were set forth in the termination notice served on the tenant under this subpart.”   The landlord may not allege new grounds in the tenancy action of which it was aware at the time it sent the notice.  Ibid.

The trial judge entered judgment of possession based on defendant having been “untruthful at the time she entered into the Lease on August 22, 2012.”   That was error.   The termination notice specified that defendant provided false information on the rental application she submitted the year before she entered into the lease.   Plaintiff did not provide defendant notice that it was evicting her because she was obligated to advise that she was unemployed at the time she signed the lease and failed to do so.   Accordingly, the judge lacked jurisdiction to enter the judgment of possession.   Plaintiff's argument that its notice was sufficient to advise defendant that it was claiming fraud in the “application process,” cannot be squared with the very specific requirements of 24 C.F.R. § 247.4(a) and § 247.6, and N.J.S.A. 2A:18–61.2.



FN1. Plaintiff also argues that defendant signed a HUD form stating she was employed at the time she signed the lease.   That document, however, was not made part of the record.   Accordingly, we do not consider it..  FN1. Plaintiff also argues that defendant signed a HUD form stating she was employed at the time she signed the lease.   That document, however, was not made part of the record.   Accordingly, we do not consider it.


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