2015 NJSBA Annual Meeting Civil Litigation Track Trials in ... · This matter concerns the appealability of County District Court landlord and tenant dispossess judgments; ... Mr
2015 NJSBA Annual Meeting Civil Litigation Track Trials in Landlord Tenant Court (A 101 Course) ModeratorSpeaker Hon Lawrence Maron JSC Passaic Speakers Hon Hany A Mawla JSC Somerset Hon Ned Rosenberg JSC Essex Gregory G Diebold Esq Northeast New Jersey Legal Services Jersey City Tracey Goldstein Esq Feinstein Raiss Kelin amp Booker LLC Livingston Bruce E Gudin Esq Ehrlich Petriello Gudin amp Plaza PC Newark Eilleen Ingram-Willis Esq Jersey City Housing Authority Jersey City
copy 2015 New Jersey State Bar Association All rights reserved Any copying of material herein in whole or in part and by any means without written permission is prohibited Requests for such permission should be sent to the New Jersey State Bar Association New Jersey Law Center One Constitution Square New Brunswick New Jersey 08901-1520 The material contained in these pages is for educational purposes only and not intended as a substitute for the professional services an attorney would normally provide to a client including up to the minute legal research
D NOTICE REQUIREMENTS FOR EVICTION PURSUANT TO 611 amp 612 1 SUBSECTIONS OF 611 CORRESPONDING TO SUBSECTIONS OF
612 AND REQUISITE PERIODS
611 612 TIME PERIOD AFTER SERVICE OF NOTICE BEORE INSTITUTION OF THE ACTION FOR POSSESSION REQUIRED
NOTICE TO CEASE
a nonpayment NA no notice to quit or demand for possession
No
f nonpayment of increased rent
NA No
q theft NA No b disorderly A 3 days Yes c damage A No m termination of employment
A No
n drug offense A No o assaultsthreats A No p ldquocivil violationsrdquo A No d violation of rulesregulations
B 1 month Yes
e(1) violation of lease B Yes j habitually late B Yes g housinghealth code C 3 months No h permanent retirement D 18 months No h permanent retirement in Atlantic City
NJSA2A18-6114
1 year (and possibly 6 more months)
No
i lease changes E 1 month Yes l personal occupancy F 2 months No k conversion G 3 years No e(2) public housing CDS violationsillegal activities
H Fedrsquol notice requirements Fedrsquol notice requirements
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MARINI v IRELAND
JOSEPH MARINI PLAINTIFF-RESPONDENT v ALICE IRELAND DEFENDANT-APPELLANT
The opinion of the Court was delivered by HANEMAN J
This matter concerns the appealability of County District Court landlord and tenant dispossess judgmentsthe scope of a landlords duty to make repairs and the right to offset the cost of such repairs againstaccruing rent on the failure of the landlord to make same if found to be required
On or about April 2 1969 plaintiff landlord and defendant tenant entered into a one-year lease for anapartment located in a two-family duplex building at 503-B Rand Street Camden New Jersey Theannual rent of $1140 was agreed to be paid in monthly installments of $95 The lease incorporated acovenant of quiet enjoyment but did not include a specific covenant for repairs
On or about June 25 1969 defendant alleges that she discovered that the toilet in the leased apartment
View Case Cited Cases Citing Case
56 NJ 130 (1970)265 A2d 526
The Supreme Court of New JerseyDecided May 18 1970
Mr Gordon V Lewis argued the cause for the appellant (Mr David H Dugan III Director CamdenRegional Legal Services Inc attorney Messrs Joseph V Ippolito and Kenneth Meiser on the brief)Mr Bartholomew A Sheehan Jr argued the cause for the respondent (Messrs Hyland Davis ampReberkenny attorneys)Mr Richard J Pilch argued the cause amicus curiae for the New Jersey State Office of Legal Services(Mr James D Coffee Director)
was cracked and water was leaking onto the bathroom floor She further alleges that repeated attemptsto inform plaintiff of this condition were unsuccessful On or about June 27 1969 defendant hired oneKarl T Bittner a registered plumber to repair the toilet Bittner repaired the toilet at a cost of $8572which the tenant paid
On July 15 1969 defendant mailed plaintiff a check for $928 together with the receipt for $8572 inpayment of
[56 NJ 135]
the July rent Plaintiff challenged the offsetting of the cost of the repair and demandedthe outstanding $8572
When his demands were refused plaintiff instituted a summary dispossess action for nonpayment of rentin the Camden County District Court pursuant to NJSA 2A18-53(b) alleging the nonpayment of theJuly rent in the amount of $8572 and August rent of $95 A hearing was had on August 15 1969Plaintiff argued that he was entitled to the $8572 because he had no duty to make repairs andconsequently defendants payment of the cost of repair could not be offset against rent
The judge conceived the issue as entirely a legal one and determined that the facts which defendantalleged did not create a duty upon the landlord to make repairs Thus without trying out the issuestendered by defendant he found a default in payment of rent of $8572 (July) and $95 (August) pluscosts and rendered a judgment for possession Defendant appealed to the Appellate Division
On August 29 1969 a judge of the Appellate Division granted a temporary stay of the judgment forpossession and the warrant of eviction The Appellate Division granted a stay pending appeal onSeptember 23 1969 and ordered defendant to pay all the rents then due except the contested July rentThe Appellate Division also then denied plaintiffs cross-motion to dismiss the appeal Before theAppellate Division heard argument this Court certified the case on its own motion R 212-1
The issues which evolve on this appeal are Did defendants claimed right to offset her cost of repairsagainst rent raise a jurisdictional issue If the answer to that query is in the affirmative did the landlordhave a duty to repair and may the issue of failure to comply with such duty be raised in a dispossessaction Also involved in the latter question is the right of the tenant to make repairs upon the landlordsfailure to so do and the right to offset the cost thereof against rent
[56 NJ 136]
NJSA 2A18-53 provides in part
Any lessee or tenant of any houses buildings lands or tenements may be removed fromsuch premises by the county district court of the county within which such premises are situated in anaction in the following cases
b Where such person shall hold over after a default in the payment of rent pursuant to the agreementunder which the premises are held
NJSA 2A18-59 reads
Proceedings had by virtue of this article shall not be appealable except on the ground of lack ofjurisdiction The landlord however shall remain liable in a civil action for unlawful proceedings under thisarticle
As noted NJSA 2A18-59 permits review of the County District Courts judgment only on the questionof lack of jurisdiction Plaintiff rationalizes that as defendant acknowledges that the rent asserted byplaintiff to be due for the month of July was not paid in full as provided in the lease a defense groundedupon an allegation that the unpaid balance is not owing raises a meritorious issue He states thatdefendants contest of the amount due directs an attack upon plaintiffs right to possession rather than anattack upon the jurisdictional basis of his action Plaintiff argues that the admitted failure to pay in full isin the language of the statute a default and vests the County District Court with jurisdiction to order aremoval of the tenant
Defendant on the other hand contends that the County District Court has jurisdiction in dispossessactions only in those factual complexes specified in NJSA 2A18-53 mdash here for a default in thepayment of rent The issue of the amount of rent due says defendant raising as it does the issue of thedefault alleged by the complaint is directed at the jurisdiction of the County District Court and adetermination
[56 NJ 137]
rejecting her defense of non-default in whole or part is therefore appealable underNJSA 2A18-59
The County District Court in the present matter is vested with jurisdiction as noted only where thereexists a rent default The complaint must delineate specific allegations of fact giving rise to such adefault
While dealing with the following cases cited in connection with the foregoing it must be remembered thatoriginally an action for possession was commenced before a justice of the peace by filing an affidavitLater the jurisdiction was transferred to the District Court but the action continued to be commenced bythe filing of an affidavit In Earl v Krug Baking Co 22 NJ Misc 424 (Cir Ct 1944) the court said inthat connection at p 425
Summary proceedings in the district court for the dispossession of tenants may be described as astatutory substitute for the common law action in ejectment and although the proceedings arecmomenced by the filing of the jurisdictional affidavit that affidavit is nonetheless a complaint in theordinary acceptation of the term
Presently the affidavit has been superseded by a complaint R 63-1 What is said in the following casesconcerning affidavits is equally applicable to presently employed complaints As early as Fowler v Roe25 NJL 549 (Sup Ct 1856) the court said at p 551
In this summary proceeding before a justice of the peace to turn one man out of the possession of thepremises he occupies and put another in the power is delegated by special statutory authority to a courthaving no jurisdiction to try the title to lands and can only be exercised where all the prerequisites to itsexercise prescribed by the statute appear to exist and are shown to have been complied with
Fowler supra also held at p 550 that it must appear from the allegations of the affidavit
1 That the relation of landlord and tenant exists
2 That default has been made by the tenant in the payment of rent according to the terms of theagreement or demise under which he holds
[56 NJ 138]
3 That there are no goods of the tenant on the premises out of which the rent due canbe made by distress
4 That three days notice in writing has been served by the person entitled to the rent on the personowing the same requiring payment or possession
And again in Schuyler v Trefren 26 NJL 213 (Sup Ct 1857) the court said
The proceeding is summary and the jurisdiction is special limited and statutory and every essential toits proper exercise must appear to have been complied with
In Vineland Shopping Center Inc v DeMarco 35 NJ 459 (1961) this Court said at p 464 in referenceto substantiating proof of the pleaded jurisdictional facts
The established principle is that the trial court had jurisdiction if there was evidence from which it couldfind a statutory basis for removal If that test is met the judgment must be affirmed even though it isotherwise infected with error
The jurisdictional issue ie the statutory basis for removal can be twice raised in a dispossess actionFirst by motion directed at the complaint for failure to accurately allege the necessary facts withparticularity Second on trial for failure to adduce adequate proof to corroborate the allegations of thecomplaint If the complaint contains adequate factual allegations of default the issue can be resolvedonly when proof has been adduced Failure to furnish either such allegations in the complaint or proof onthe trial is sufficient ground to warrant dismissal for lack of jurisdiction
As noted in Vineland Shopping Center Inc v DeMarco supra at p 464 our cases have hewed a lineseparating the jurisdictional issue from the meritorious issue Confusion arises from this jurisdictional-meritorious dichotomy by reason of the fact that the same proof is required and goes to the same crucialelement in each ie proof of the default in rent as alleged in the complaint Whatever
[56 NJ 139]
jurisdiction means in other settings here it uniquely connotes the existence of one ofthe factual situations delineated in NJSA 2A18-53 It follows that a finding by thejudge that there is a default as alleged by the landlord does not dispose of themeritorious issue alone It as well disposes of the jurisdictional issue
The jurisdictional issue of default encompasses the question of whether the amount of rent alleged tobe in default is due unpaid and owing not only whether it is due and unpaid The mere fact of thetenants failure to pay rent in full as provided in the lease is not in and of itself a sufficient fact to meetthe statutory jurisdictional requisite Thus a tenants evidence in substantiation of a defense that there isno default or that the default is not in the amount alleged by the landlord is admissible on thejurisdictional issue Consideration must be given not only to a legal defense but as well to an equitableexcuse for non-payment such as confession and avoidance which would relieve the tenant of the dutyof paying and hence make the unpaid rent in whole or part due but not owing and thus not in default
That the County District Court must accept any equitable issue offered to defeat an action within itsjurisdiction or to avoid a separate defense to such action was established by Vineland Shopping CenterInc v DeMarco supra p 469 See also Carteret Properties v Variety Donuts Inc 49 NJ 116 124(1967) This duty is imposed on the County District Court not only in connection with proof of caseswithin its jurisdiction but also on the issue of jurisdiction as well It follows that an equitable defense tothe proof of an alleged rent default in a landlord-tenant dispossess proceeding is permissible and facts insupport thereof admissible
There is no logical reason why a tenant who is successful in having a case removed to the SuperiorCourt under NJSA 2A18-60 shall have the benefit of equitable defenses to jurisdiction while a tenantwho is unsuccessful in
[56 NJ 140]
seeking to have his case removed from the County District Court to the Superior Courtshould be limited to legal defenses[1]
At any time before an action for the removal of a tenant comes on for trial either the landlord or personin possession may apply to the superior court which may if it deems it of sufficient importance orderthe cause transferred from the county district court to the superior court (Emphasis supplied)
The statute furnishes no guidelines for the solution of the question of what constitutes a case ofsufficient importance It is self-evident that every tenant removal is of importance to both the landlordand tenant It could be argued that every such case qualifies for removal to the Superior Court If adispossess action is not removed to the Superior Court appeal by a tenant from an adverse judgment isrestricted to the issue of jurisdiction NJSA 2A18-59 If the action is removed to the Superior Courtappeal is not so restricted Appeal is then available on meritorious grounds as well Vineland ShoppingCenter Inc v DeMarco supra We see no sound reason for any distinction between the right to appealfrom a District Court judgment and a Superior Court judgment for possession It might well be urged thatthere should be no difference between the scope of review from a District Court judgment and a SuperiorCourt judgment We are not however obliged to pass upon that problem in the matter sub judice
We hold therefore that equitable as well as legal defenses asserting payment or absolution frompayment in whole or part are available to a tenant in a dispossess action and must be considered by thecourt Denial of a motion by defendant directed at the complaint for failure to make adequate factualallegations or of a motion at the conclusion of the trial for failure to supply proof that the amount of rentalleged in the complaint is in default both going to the question of jurisdiction are each appealable
Insofar as Peters v Kelly 98 NJSuper 441 (App Div 1968) conflicts with the foregoing it is overruled
It becomes necessary to consider the merits of defendants equitable defense that the failure of thelandlord to repair the toilet constituted a breach of the covenant of habitability or quiet enjoyment andgave rise to defendants
[56 NJ 141]
entitlement to self-help permitting her to repair the toilet and offset the cost thereofagainst her rent We need not concern ourselves with the covenant of quiet enjoymentas will hereafter become apparent
We are here concerned with the lease of premises for residential purposes The lease provides
WITNESSETH that the said party of the first part hath let and by these presents doth grant demiseand to farm let unto the said property of the second part all that contains 4 rooms and bath apartmentsituated in the city and county of camden [sic] state [sic] of New Jersey known and designated as503-B Rand Street
nor use or permit any part thereof to be used for any other purpose than dwelling
As the lease contains no express covenant to repair we are obliged to determine whether there arisesan implied covenant however categorized which would require the landlord to make repairs
A lease was originally considered a conveyance of an interest in real estate Thus the duties andobligations of the parties implied as well as express were dealt with according to the law of propertyand not of the law of contracts In Michaels v Brookchester Inc 26 NJ 379 (1958) this Court said at p
Historically a lease was viewed as a sale of an interest in land The concept of caveat emptorapplicable to such sales seemed logically pertinent to leases of land There was neither an impliedcovenant of fitness for the intended use nor responsibility in the landlord to maintain the leasedpremises Bauer v 141-149 Cedar Lane Holding Co 24 NJ 139 145 130 A2d 833 (1957) Bolitho vMintz 106 NJL 449 148 A 737 (E amp A 1930) This principle suitable for the agrarian setting in whichit was conceived lagged behind changes in dwelling habits and economic realities 1 America Law ofProperty (1952) sect 378 p 347 Exceptions to the broad immunity inevitably developed
The guidelines employed to construe contracts have been modernly applied to the construction of leases3 Thompson
[56 NJ 142]
on Real Property 377 (1959) See also 6 Williston on Contracts 3d ed Jaeger sect 890Ap 592 (1962)
There is a clearly discernible tendency on the part of the courts to cast aside technicalities in theinterpretation of leases and to concentrate their attention as in the case of other contracts on theintention of the parties
In Pines v Perssion 14 Wis2d 590 111 NW2d 409 (Sup Ct Wis 1961) the court stated at p 412
Legislation and administrative rules such as the safeplace statute building codes and healthregulations all impose certain duties on a property owner with respect to the condition of his premisesThus the legislature has made a policy judgment mdash that it is socially (and politically) desirable to imposethese duties on a property owner mdash which has rendered the old common law rule obsolete To follow theold rule of no implied warranty of habitability in leases would in our opinion be inconsistent with thecurrent legislative policy concerning housing standards The need and social desirability of adequatehousing for people in this era of rapid population increases is too important to be rebuffed by thatobnoxious legal cliche caveat emptor Permitting landlords to rent `tumbledown houses is at least acontributing cause of such problems as urban blight juvenile delinquency and high property taxes forconscientious landowners
In Reste Realty Corporation v Cooper 53 NJ 444 (1969) this Court said at p 452
Moreover an awareness by legislatures of the inequality of bar gaining power between landlord andtenant in many cases and the need for tenant protection has produced remedial tenement house andmultiple dwelling statutes See eg NJSA 5513A-1 et seq and the regulations thereunder seegenerally Fuerstein and Shustack `Landlord and Tenant mdash The Statutory Duty to Repair 45 Ill L Rev205 (1950) Annotation 17 ALR 2d 704 (1951) It has come to be recognized that ordinarily the lesseedoes not have as much knowledge of the condition of the premises as the lessor Building coderequirements and violations are known or made known to the lessor not the lessee He is in a betterposition to know of latent defects structural and otherwise in a building which might go unnoticed by alessee who rarely has sufficient knowledge or expertise to see or to discover them A prospective lesseesuch as a small businessman cannot be expected to know if the plumbing or wiring systems areadequate or conform to local codes Nor should he be expected
[56 NJ 143]
to hire experts to advise him Ordinarily all this information should be consideredreadily available to the lessor who in turn can inform the prospective lessee Thesefactors have produced persuasive arguments for reevaluation of the caveat emptordoctrine and for imposition of an implied warranty that the premises are suitable for theleased purposes and conform to local codes and zoning laws
See also Lemle v Breeden 462 P2d 470 (Sup Ct Hawaii 1969)
A covenant in a lease can arise only by necessary implication from specific language of the lease orbecause it is indispensable to carry into effect the purpose of the lease In determining under contractlaw what covenants are implied the object which the parties had in view and intended to beaccomplished is of primary importance The subject matter and circumstances of the letting give at leastas clear a clue to the natural intentions of the parties as do the written words It is of course not theprovince of the court to make a new contract or to supply any material stipulations or conditions whichcontravene the agreements of the parties Kampf v Franklin Life Ins Co 33 NJ 36 (1960) WashingtonConstruction Co Inc v Spinella 8 NJ 212 (1951) City of Camden v South Jersey Port Commission 4NJ 357 (1950) McBride v Maryland Casualty Co 128 NJL 64 (E amp A 1942) Terms are to beimplied not because
they are just or reasonable but rather for the reason that the parties must have intended them and haveonly failed to express them or because they are necessary to give business efficacy to the contractas written or to give the contract the effect which the parties as fair and reasonable men presumablywould have agreed on if having in mind the possibility of the situation which has arisen they contractedexpressly in reference thereto See 12 Am Jur Contracts sec 239 14 Am Jur Covenants Conditionsand Restrictions sec 14 William Berland Realty Co v Hahne amp Co 26 NJSuper 477 487 (Ch1953) modified 29 NJSuper 316 (App Div 1954)
See also Silverstein v Keane 19 NJ 1 (1955) Cragmere Holding Corp v Socony Mobile Oil Co 65NJSuper 322 (App Div 1961)
[56 NJ 144]
So here the lease expressly described the leased premises as 4 rooms and bathapartment and restricted the use thereof for one purpose mdash dwelling Patently theeffect which the parties as fair and reasonable men presumably would have agreedon was that the premises were habitable and fit for living The very object of the lettingwas to furnish the defendant with quarters suitable for living purposes This is what thelandlord at least impliedly (if not expressly) represented he had available and what thetenant was seeking In a modern setting the landlord should in residential letting beheld to an implied covenant against latent defects which is another manner of sayinghabitability and livability fitness See Hyland v Parkside Investment Co Inc 10 NJMisc 1148 (Sup Ct 1932) It is a mere matter of semantics whether we designate thiscovenant one to repair or of habitability and livability fitness Actually it is a covenantthat at the inception of the lease there are no latent defects in facilities vital to the useof the premises for residential purposes because of faulty original construction ordeterioration from age or normal usage And further it is a covenant that these facilitieswill remain in usable condition during the entire term of the lease In performance ofthis covenant the landlord is required to maintain those facilities in a condition whichrenders the property livable
It is eminently fair and just to charge a landlord with the duty of warranting that a building or part thereofrented for residential purpose is fit for that purpose at the inception of the term and will remain so duringthe entire term Of course ancillary to such understanding it must be implied that he has further agreedto repair damage to vital facilities caused by ordinary wear and tear during said term Where damage hasbeen caused maliciously or by abnormal or unusual use the tenant is conversely liable for repair Thenature of vital facilities and the extent and type of maintenance and repair required is limited and
[56 NJ 145]
governed by the type of property rented and the amount of rent reserved Failure to somaintain the property would constitute a constructive eviction
It becomes necessary to consider the respective rights and duties which accompany such an impliedcovenant We must recognize that historically the landlords covenant to alter or repair premises and thetenants covenant to pay rent were generally regarded as independent covenants The landlords failureto perform did not entitle the tenant to make the repair and offset the cost thereof against future rent Itonly gave rise to a separate cause of action for breach of covenant Duncan Development Co v DuncanHardware Inc 34 NJSuper 293 at 298 (App Div 1955) cert denied 19 NJ 328 (1955) Stewart vChilds Co 86 NJL 648 (E amp A 1914) This result also eventuated from the application of the law ofreal estate rather than of contract The concept of mutually dependent promises was not originallyapplied to the ascertainment of whether covenants in leases were dependent or independent Howeverpresently we recognize that covenants are dependent or independent according to the intention of theparties and the good sense of the case Higgins v Whiting 102 NJL 279 (Sup Ct 1925) 3 Thompsonon Real Property sect 1115 (1959 Replacement)
In Higgins v Whiting supra the court said at pp 280 and 281 concerning the test of dependency ofexpress covenants
In 24 Cyc 918 it is said that covenants are to be construed as dependent or independent according tothe intention and meaning of the parties and the good sense of the case Technical words should giveway to such intention 7 RCL 1090 sect 7 So the rule is thus stated where the acts or covenants of theparties are concurrent and to be done or performed at the same time the covenants are dependent andneither party can maintain an action against the other without averring and proving performance on hispart 13 Corpus Juris 567
In the present case the covenant to pay rent and the covenant to heat the apartment are mutual anddependent In the modern
[56 NJ 146]
apartment house equipped for heating from a central plant entirely under the control ofthe landlord or his agent heat is one of the things for which the tenant pays under thename `rent
Our courts have on a case by case basis held various lease covenants and covenants to pay rent asdependent and under the guise of a constructive eviction have considered breach of the former as givingthe right to the tenant to remove from the premises and terminate his obligation to pay rent SeeMcCurdy v Wyckoff 73 NJL 368 (Sup Ct 1906) Weiler v Pancoast 71 NJL 414 (Sup Ct 1904)Higgins v Whiting 102 NJL 279 (Sup Ct 1925) Stevenson Stanoyevich Fund v Steinacher 125NJL 326 (Sup Ct 1940)
It is of little comfort to a tenant in these days of housing shortage to accord him the right upon aconstructive eviction to vacate the premises and end his obligation to pay rent Rather he should beaccorded the alternative remedy of terminating the cause of the constructive eviction where as here thecause is the failure to make reasonable repairs See Reste Realty Corporation v Cooper supra footnote1 53 NJ pp 462 463 This latter course of action is accompanied by the right to offset the cost of suchrepairs as are reasonable in the light of the value of the leasehold against the rent His pursuit of thelatter form of relief should of course be circumscribed by the aforementioned conditions
If therefore a landlord fails to make the repairs and replacements of vital facilities necessary to maintainthe premises in a livable condition for a period of time adequate to accomplish such repair andreplacements the tenant may cause the same to be done and deduct the cost thereof from future rentsThe tenants recourse to such self-help must be preceded by timely and adequate notice to the landlordof the faulty condition in order to accord him the opportunity to make the necessary replacement orrepair If the tenant is unable to give such notice after a reasonable attempt he may nonetheless
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
COMMENT
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
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owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
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Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
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judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
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of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
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limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
decisions
USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
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Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
D NOTICE REQUIREMENTS FOR EVICTION PURSUANT TO 611 amp 612 1 SUBSECTIONS OF 611 CORRESPONDING TO SUBSECTIONS OF
612 AND REQUISITE PERIODS
611 612 TIME PERIOD AFTER SERVICE OF NOTICE BEORE INSTITUTION OF THE ACTION FOR POSSESSION REQUIRED
NOTICE TO CEASE
a nonpayment NA no notice to quit or demand for possession
No
f nonpayment of increased rent
NA No
q theft NA No b disorderly A 3 days Yes c damage A No m termination of employment
A No
n drug offense A No o assaultsthreats A No p ldquocivil violationsrdquo A No d violation of rulesregulations
B 1 month Yes
e(1) violation of lease B Yes j habitually late B Yes g housinghealth code C 3 months No h permanent retirement D 18 months No h permanent retirement in Atlantic City
NJSA2A18-6114
1 year (and possibly 6 more months)
No
i lease changes E 1 month Yes l personal occupancy F 2 months No k conversion G 3 years No e(2) public housing CDS violationsillegal activities
H Fedrsquol notice requirements Fedrsquol notice requirements
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MARINI v IRELAND
JOSEPH MARINI PLAINTIFF-RESPONDENT v ALICE IRELAND DEFENDANT-APPELLANT
The opinion of the Court was delivered by HANEMAN J
This matter concerns the appealability of County District Court landlord and tenant dispossess judgmentsthe scope of a landlords duty to make repairs and the right to offset the cost of such repairs againstaccruing rent on the failure of the landlord to make same if found to be required
On or about April 2 1969 plaintiff landlord and defendant tenant entered into a one-year lease for anapartment located in a two-family duplex building at 503-B Rand Street Camden New Jersey Theannual rent of $1140 was agreed to be paid in monthly installments of $95 The lease incorporated acovenant of quiet enjoyment but did not include a specific covenant for repairs
On or about June 25 1969 defendant alleges that she discovered that the toilet in the leased apartment
View Case Cited Cases Citing Case
56 NJ 130 (1970)265 A2d 526
The Supreme Court of New JerseyDecided May 18 1970
Mr Gordon V Lewis argued the cause for the appellant (Mr David H Dugan III Director CamdenRegional Legal Services Inc attorney Messrs Joseph V Ippolito and Kenneth Meiser on the brief)Mr Bartholomew A Sheehan Jr argued the cause for the respondent (Messrs Hyland Davis ampReberkenny attorneys)Mr Richard J Pilch argued the cause amicus curiae for the New Jersey State Office of Legal Services(Mr James D Coffee Director)
was cracked and water was leaking onto the bathroom floor She further alleges that repeated attemptsto inform plaintiff of this condition were unsuccessful On or about June 27 1969 defendant hired oneKarl T Bittner a registered plumber to repair the toilet Bittner repaired the toilet at a cost of $8572which the tenant paid
On July 15 1969 defendant mailed plaintiff a check for $928 together with the receipt for $8572 inpayment of
[56 NJ 135]
the July rent Plaintiff challenged the offsetting of the cost of the repair and demandedthe outstanding $8572
When his demands were refused plaintiff instituted a summary dispossess action for nonpayment of rentin the Camden County District Court pursuant to NJSA 2A18-53(b) alleging the nonpayment of theJuly rent in the amount of $8572 and August rent of $95 A hearing was had on August 15 1969Plaintiff argued that he was entitled to the $8572 because he had no duty to make repairs andconsequently defendants payment of the cost of repair could not be offset against rent
The judge conceived the issue as entirely a legal one and determined that the facts which defendantalleged did not create a duty upon the landlord to make repairs Thus without trying out the issuestendered by defendant he found a default in payment of rent of $8572 (July) and $95 (August) pluscosts and rendered a judgment for possession Defendant appealed to the Appellate Division
On August 29 1969 a judge of the Appellate Division granted a temporary stay of the judgment forpossession and the warrant of eviction The Appellate Division granted a stay pending appeal onSeptember 23 1969 and ordered defendant to pay all the rents then due except the contested July rentThe Appellate Division also then denied plaintiffs cross-motion to dismiss the appeal Before theAppellate Division heard argument this Court certified the case on its own motion R 212-1
The issues which evolve on this appeal are Did defendants claimed right to offset her cost of repairsagainst rent raise a jurisdictional issue If the answer to that query is in the affirmative did the landlordhave a duty to repair and may the issue of failure to comply with such duty be raised in a dispossessaction Also involved in the latter question is the right of the tenant to make repairs upon the landlordsfailure to so do and the right to offset the cost thereof against rent
[56 NJ 136]
NJSA 2A18-53 provides in part
Any lessee or tenant of any houses buildings lands or tenements may be removed fromsuch premises by the county district court of the county within which such premises are situated in anaction in the following cases
b Where such person shall hold over after a default in the payment of rent pursuant to the agreementunder which the premises are held
NJSA 2A18-59 reads
Proceedings had by virtue of this article shall not be appealable except on the ground of lack ofjurisdiction The landlord however shall remain liable in a civil action for unlawful proceedings under thisarticle
As noted NJSA 2A18-59 permits review of the County District Courts judgment only on the questionof lack of jurisdiction Plaintiff rationalizes that as defendant acknowledges that the rent asserted byplaintiff to be due for the month of July was not paid in full as provided in the lease a defense groundedupon an allegation that the unpaid balance is not owing raises a meritorious issue He states thatdefendants contest of the amount due directs an attack upon plaintiffs right to possession rather than anattack upon the jurisdictional basis of his action Plaintiff argues that the admitted failure to pay in full isin the language of the statute a default and vests the County District Court with jurisdiction to order aremoval of the tenant
Defendant on the other hand contends that the County District Court has jurisdiction in dispossessactions only in those factual complexes specified in NJSA 2A18-53 mdash here for a default in thepayment of rent The issue of the amount of rent due says defendant raising as it does the issue of thedefault alleged by the complaint is directed at the jurisdiction of the County District Court and adetermination
[56 NJ 137]
rejecting her defense of non-default in whole or part is therefore appealable underNJSA 2A18-59
The County District Court in the present matter is vested with jurisdiction as noted only where thereexists a rent default The complaint must delineate specific allegations of fact giving rise to such adefault
While dealing with the following cases cited in connection with the foregoing it must be remembered thatoriginally an action for possession was commenced before a justice of the peace by filing an affidavitLater the jurisdiction was transferred to the District Court but the action continued to be commenced bythe filing of an affidavit In Earl v Krug Baking Co 22 NJ Misc 424 (Cir Ct 1944) the court said inthat connection at p 425
Summary proceedings in the district court for the dispossession of tenants may be described as astatutory substitute for the common law action in ejectment and although the proceedings arecmomenced by the filing of the jurisdictional affidavit that affidavit is nonetheless a complaint in theordinary acceptation of the term
Presently the affidavit has been superseded by a complaint R 63-1 What is said in the following casesconcerning affidavits is equally applicable to presently employed complaints As early as Fowler v Roe25 NJL 549 (Sup Ct 1856) the court said at p 551
In this summary proceeding before a justice of the peace to turn one man out of the possession of thepremises he occupies and put another in the power is delegated by special statutory authority to a courthaving no jurisdiction to try the title to lands and can only be exercised where all the prerequisites to itsexercise prescribed by the statute appear to exist and are shown to have been complied with
Fowler supra also held at p 550 that it must appear from the allegations of the affidavit
1 That the relation of landlord and tenant exists
2 That default has been made by the tenant in the payment of rent according to the terms of theagreement or demise under which he holds
[56 NJ 138]
3 That there are no goods of the tenant on the premises out of which the rent due canbe made by distress
4 That three days notice in writing has been served by the person entitled to the rent on the personowing the same requiring payment or possession
And again in Schuyler v Trefren 26 NJL 213 (Sup Ct 1857) the court said
The proceeding is summary and the jurisdiction is special limited and statutory and every essential toits proper exercise must appear to have been complied with
In Vineland Shopping Center Inc v DeMarco 35 NJ 459 (1961) this Court said at p 464 in referenceto substantiating proof of the pleaded jurisdictional facts
The established principle is that the trial court had jurisdiction if there was evidence from which it couldfind a statutory basis for removal If that test is met the judgment must be affirmed even though it isotherwise infected with error
The jurisdictional issue ie the statutory basis for removal can be twice raised in a dispossess actionFirst by motion directed at the complaint for failure to accurately allege the necessary facts withparticularity Second on trial for failure to adduce adequate proof to corroborate the allegations of thecomplaint If the complaint contains adequate factual allegations of default the issue can be resolvedonly when proof has been adduced Failure to furnish either such allegations in the complaint or proof onthe trial is sufficient ground to warrant dismissal for lack of jurisdiction
As noted in Vineland Shopping Center Inc v DeMarco supra at p 464 our cases have hewed a lineseparating the jurisdictional issue from the meritorious issue Confusion arises from this jurisdictional-meritorious dichotomy by reason of the fact that the same proof is required and goes to the same crucialelement in each ie proof of the default in rent as alleged in the complaint Whatever
[56 NJ 139]
jurisdiction means in other settings here it uniquely connotes the existence of one ofthe factual situations delineated in NJSA 2A18-53 It follows that a finding by thejudge that there is a default as alleged by the landlord does not dispose of themeritorious issue alone It as well disposes of the jurisdictional issue
The jurisdictional issue of default encompasses the question of whether the amount of rent alleged tobe in default is due unpaid and owing not only whether it is due and unpaid The mere fact of thetenants failure to pay rent in full as provided in the lease is not in and of itself a sufficient fact to meetthe statutory jurisdictional requisite Thus a tenants evidence in substantiation of a defense that there isno default or that the default is not in the amount alleged by the landlord is admissible on thejurisdictional issue Consideration must be given not only to a legal defense but as well to an equitableexcuse for non-payment such as confession and avoidance which would relieve the tenant of the dutyof paying and hence make the unpaid rent in whole or part due but not owing and thus not in default
That the County District Court must accept any equitable issue offered to defeat an action within itsjurisdiction or to avoid a separate defense to such action was established by Vineland Shopping CenterInc v DeMarco supra p 469 See also Carteret Properties v Variety Donuts Inc 49 NJ 116 124(1967) This duty is imposed on the County District Court not only in connection with proof of caseswithin its jurisdiction but also on the issue of jurisdiction as well It follows that an equitable defense tothe proof of an alleged rent default in a landlord-tenant dispossess proceeding is permissible and facts insupport thereof admissible
There is no logical reason why a tenant who is successful in having a case removed to the SuperiorCourt under NJSA 2A18-60 shall have the benefit of equitable defenses to jurisdiction while a tenantwho is unsuccessful in
[56 NJ 140]
seeking to have his case removed from the County District Court to the Superior Courtshould be limited to legal defenses[1]
At any time before an action for the removal of a tenant comes on for trial either the landlord or personin possession may apply to the superior court which may if it deems it of sufficient importance orderthe cause transferred from the county district court to the superior court (Emphasis supplied)
The statute furnishes no guidelines for the solution of the question of what constitutes a case ofsufficient importance It is self-evident that every tenant removal is of importance to both the landlordand tenant It could be argued that every such case qualifies for removal to the Superior Court If adispossess action is not removed to the Superior Court appeal by a tenant from an adverse judgment isrestricted to the issue of jurisdiction NJSA 2A18-59 If the action is removed to the Superior Courtappeal is not so restricted Appeal is then available on meritorious grounds as well Vineland ShoppingCenter Inc v DeMarco supra We see no sound reason for any distinction between the right to appealfrom a District Court judgment and a Superior Court judgment for possession It might well be urged thatthere should be no difference between the scope of review from a District Court judgment and a SuperiorCourt judgment We are not however obliged to pass upon that problem in the matter sub judice
We hold therefore that equitable as well as legal defenses asserting payment or absolution frompayment in whole or part are available to a tenant in a dispossess action and must be considered by thecourt Denial of a motion by defendant directed at the complaint for failure to make adequate factualallegations or of a motion at the conclusion of the trial for failure to supply proof that the amount of rentalleged in the complaint is in default both going to the question of jurisdiction are each appealable
Insofar as Peters v Kelly 98 NJSuper 441 (App Div 1968) conflicts with the foregoing it is overruled
It becomes necessary to consider the merits of defendants equitable defense that the failure of thelandlord to repair the toilet constituted a breach of the covenant of habitability or quiet enjoyment andgave rise to defendants
[56 NJ 141]
entitlement to self-help permitting her to repair the toilet and offset the cost thereofagainst her rent We need not concern ourselves with the covenant of quiet enjoymentas will hereafter become apparent
We are here concerned with the lease of premises for residential purposes The lease provides
WITNESSETH that the said party of the first part hath let and by these presents doth grant demiseand to farm let unto the said property of the second part all that contains 4 rooms and bath apartmentsituated in the city and county of camden [sic] state [sic] of New Jersey known and designated as503-B Rand Street
nor use or permit any part thereof to be used for any other purpose than dwelling
As the lease contains no express covenant to repair we are obliged to determine whether there arisesan implied covenant however categorized which would require the landlord to make repairs
A lease was originally considered a conveyance of an interest in real estate Thus the duties andobligations of the parties implied as well as express were dealt with according to the law of propertyand not of the law of contracts In Michaels v Brookchester Inc 26 NJ 379 (1958) this Court said at p
Historically a lease was viewed as a sale of an interest in land The concept of caveat emptorapplicable to such sales seemed logically pertinent to leases of land There was neither an impliedcovenant of fitness for the intended use nor responsibility in the landlord to maintain the leasedpremises Bauer v 141-149 Cedar Lane Holding Co 24 NJ 139 145 130 A2d 833 (1957) Bolitho vMintz 106 NJL 449 148 A 737 (E amp A 1930) This principle suitable for the agrarian setting in whichit was conceived lagged behind changes in dwelling habits and economic realities 1 America Law ofProperty (1952) sect 378 p 347 Exceptions to the broad immunity inevitably developed
The guidelines employed to construe contracts have been modernly applied to the construction of leases3 Thompson
[56 NJ 142]
on Real Property 377 (1959) See also 6 Williston on Contracts 3d ed Jaeger sect 890Ap 592 (1962)
There is a clearly discernible tendency on the part of the courts to cast aside technicalities in theinterpretation of leases and to concentrate their attention as in the case of other contracts on theintention of the parties
In Pines v Perssion 14 Wis2d 590 111 NW2d 409 (Sup Ct Wis 1961) the court stated at p 412
Legislation and administrative rules such as the safeplace statute building codes and healthregulations all impose certain duties on a property owner with respect to the condition of his premisesThus the legislature has made a policy judgment mdash that it is socially (and politically) desirable to imposethese duties on a property owner mdash which has rendered the old common law rule obsolete To follow theold rule of no implied warranty of habitability in leases would in our opinion be inconsistent with thecurrent legislative policy concerning housing standards The need and social desirability of adequatehousing for people in this era of rapid population increases is too important to be rebuffed by thatobnoxious legal cliche caveat emptor Permitting landlords to rent `tumbledown houses is at least acontributing cause of such problems as urban blight juvenile delinquency and high property taxes forconscientious landowners
In Reste Realty Corporation v Cooper 53 NJ 444 (1969) this Court said at p 452
Moreover an awareness by legislatures of the inequality of bar gaining power between landlord andtenant in many cases and the need for tenant protection has produced remedial tenement house andmultiple dwelling statutes See eg NJSA 5513A-1 et seq and the regulations thereunder seegenerally Fuerstein and Shustack `Landlord and Tenant mdash The Statutory Duty to Repair 45 Ill L Rev205 (1950) Annotation 17 ALR 2d 704 (1951) It has come to be recognized that ordinarily the lesseedoes not have as much knowledge of the condition of the premises as the lessor Building coderequirements and violations are known or made known to the lessor not the lessee He is in a betterposition to know of latent defects structural and otherwise in a building which might go unnoticed by alessee who rarely has sufficient knowledge or expertise to see or to discover them A prospective lesseesuch as a small businessman cannot be expected to know if the plumbing or wiring systems areadequate or conform to local codes Nor should he be expected
[56 NJ 143]
to hire experts to advise him Ordinarily all this information should be consideredreadily available to the lessor who in turn can inform the prospective lessee Thesefactors have produced persuasive arguments for reevaluation of the caveat emptordoctrine and for imposition of an implied warranty that the premises are suitable for theleased purposes and conform to local codes and zoning laws
See also Lemle v Breeden 462 P2d 470 (Sup Ct Hawaii 1969)
A covenant in a lease can arise only by necessary implication from specific language of the lease orbecause it is indispensable to carry into effect the purpose of the lease In determining under contractlaw what covenants are implied the object which the parties had in view and intended to beaccomplished is of primary importance The subject matter and circumstances of the letting give at leastas clear a clue to the natural intentions of the parties as do the written words It is of course not theprovince of the court to make a new contract or to supply any material stipulations or conditions whichcontravene the agreements of the parties Kampf v Franklin Life Ins Co 33 NJ 36 (1960) WashingtonConstruction Co Inc v Spinella 8 NJ 212 (1951) City of Camden v South Jersey Port Commission 4NJ 357 (1950) McBride v Maryland Casualty Co 128 NJL 64 (E amp A 1942) Terms are to beimplied not because
they are just or reasonable but rather for the reason that the parties must have intended them and haveonly failed to express them or because they are necessary to give business efficacy to the contractas written or to give the contract the effect which the parties as fair and reasonable men presumablywould have agreed on if having in mind the possibility of the situation which has arisen they contractedexpressly in reference thereto See 12 Am Jur Contracts sec 239 14 Am Jur Covenants Conditionsand Restrictions sec 14 William Berland Realty Co v Hahne amp Co 26 NJSuper 477 487 (Ch1953) modified 29 NJSuper 316 (App Div 1954)
See also Silverstein v Keane 19 NJ 1 (1955) Cragmere Holding Corp v Socony Mobile Oil Co 65NJSuper 322 (App Div 1961)
[56 NJ 144]
So here the lease expressly described the leased premises as 4 rooms and bathapartment and restricted the use thereof for one purpose mdash dwelling Patently theeffect which the parties as fair and reasonable men presumably would have agreedon was that the premises were habitable and fit for living The very object of the lettingwas to furnish the defendant with quarters suitable for living purposes This is what thelandlord at least impliedly (if not expressly) represented he had available and what thetenant was seeking In a modern setting the landlord should in residential letting beheld to an implied covenant against latent defects which is another manner of sayinghabitability and livability fitness See Hyland v Parkside Investment Co Inc 10 NJMisc 1148 (Sup Ct 1932) It is a mere matter of semantics whether we designate thiscovenant one to repair or of habitability and livability fitness Actually it is a covenantthat at the inception of the lease there are no latent defects in facilities vital to the useof the premises for residential purposes because of faulty original construction ordeterioration from age or normal usage And further it is a covenant that these facilitieswill remain in usable condition during the entire term of the lease In performance ofthis covenant the landlord is required to maintain those facilities in a condition whichrenders the property livable
It is eminently fair and just to charge a landlord with the duty of warranting that a building or part thereofrented for residential purpose is fit for that purpose at the inception of the term and will remain so duringthe entire term Of course ancillary to such understanding it must be implied that he has further agreedto repair damage to vital facilities caused by ordinary wear and tear during said term Where damage hasbeen caused maliciously or by abnormal or unusual use the tenant is conversely liable for repair Thenature of vital facilities and the extent and type of maintenance and repair required is limited and
[56 NJ 145]
governed by the type of property rented and the amount of rent reserved Failure to somaintain the property would constitute a constructive eviction
It becomes necessary to consider the respective rights and duties which accompany such an impliedcovenant We must recognize that historically the landlords covenant to alter or repair premises and thetenants covenant to pay rent were generally regarded as independent covenants The landlords failureto perform did not entitle the tenant to make the repair and offset the cost thereof against future rent Itonly gave rise to a separate cause of action for breach of covenant Duncan Development Co v DuncanHardware Inc 34 NJSuper 293 at 298 (App Div 1955) cert denied 19 NJ 328 (1955) Stewart vChilds Co 86 NJL 648 (E amp A 1914) This result also eventuated from the application of the law ofreal estate rather than of contract The concept of mutually dependent promises was not originallyapplied to the ascertainment of whether covenants in leases were dependent or independent Howeverpresently we recognize that covenants are dependent or independent according to the intention of theparties and the good sense of the case Higgins v Whiting 102 NJL 279 (Sup Ct 1925) 3 Thompsonon Real Property sect 1115 (1959 Replacement)
In Higgins v Whiting supra the court said at pp 280 and 281 concerning the test of dependency ofexpress covenants
In 24 Cyc 918 it is said that covenants are to be construed as dependent or independent according tothe intention and meaning of the parties and the good sense of the case Technical words should giveway to such intention 7 RCL 1090 sect 7 So the rule is thus stated where the acts or covenants of theparties are concurrent and to be done or performed at the same time the covenants are dependent andneither party can maintain an action against the other without averring and proving performance on hispart 13 Corpus Juris 567
In the present case the covenant to pay rent and the covenant to heat the apartment are mutual anddependent In the modern
[56 NJ 146]
apartment house equipped for heating from a central plant entirely under the control ofthe landlord or his agent heat is one of the things for which the tenant pays under thename `rent
Our courts have on a case by case basis held various lease covenants and covenants to pay rent asdependent and under the guise of a constructive eviction have considered breach of the former as givingthe right to the tenant to remove from the premises and terminate his obligation to pay rent SeeMcCurdy v Wyckoff 73 NJL 368 (Sup Ct 1906) Weiler v Pancoast 71 NJL 414 (Sup Ct 1904)Higgins v Whiting 102 NJL 279 (Sup Ct 1925) Stevenson Stanoyevich Fund v Steinacher 125NJL 326 (Sup Ct 1940)
It is of little comfort to a tenant in these days of housing shortage to accord him the right upon aconstructive eviction to vacate the premises and end his obligation to pay rent Rather he should beaccorded the alternative remedy of terminating the cause of the constructive eviction where as here thecause is the failure to make reasonable repairs See Reste Realty Corporation v Cooper supra footnote1 53 NJ pp 462 463 This latter course of action is accompanied by the right to offset the cost of suchrepairs as are reasonable in the light of the value of the leasehold against the rent His pursuit of thelatter form of relief should of course be circumscribed by the aforementioned conditions
If therefore a landlord fails to make the repairs and replacements of vital facilities necessary to maintainthe premises in a livable condition for a period of time adequate to accomplish such repair andreplacements the tenant may cause the same to be done and deduct the cost thereof from future rentsThe tenants recourse to such self-help must be preceded by timely and adequate notice to the landlordof the faulty condition in order to accord him the opportunity to make the necessary replacement orrepair If the tenant is unable to give such notice after a reasonable attempt he may nonetheless
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
COMMENT
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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MARINI v IRELAND
JOSEPH MARINI PLAINTIFF-RESPONDENT v ALICE IRELAND DEFENDANT-APPELLANT
The opinion of the Court was delivered by HANEMAN J
This matter concerns the appealability of County District Court landlord and tenant dispossess judgmentsthe scope of a landlords duty to make repairs and the right to offset the cost of such repairs againstaccruing rent on the failure of the landlord to make same if found to be required
On or about April 2 1969 plaintiff landlord and defendant tenant entered into a one-year lease for anapartment located in a two-family duplex building at 503-B Rand Street Camden New Jersey Theannual rent of $1140 was agreed to be paid in monthly installments of $95 The lease incorporated acovenant of quiet enjoyment but did not include a specific covenant for repairs
On or about June 25 1969 defendant alleges that she discovered that the toilet in the leased apartment
View Case Cited Cases Citing Case
56 NJ 130 (1970)265 A2d 526
The Supreme Court of New JerseyDecided May 18 1970
Mr Gordon V Lewis argued the cause for the appellant (Mr David H Dugan III Director CamdenRegional Legal Services Inc attorney Messrs Joseph V Ippolito and Kenneth Meiser on the brief)Mr Bartholomew A Sheehan Jr argued the cause for the respondent (Messrs Hyland Davis ampReberkenny attorneys)Mr Richard J Pilch argued the cause amicus curiae for the New Jersey State Office of Legal Services(Mr James D Coffee Director)
was cracked and water was leaking onto the bathroom floor She further alleges that repeated attemptsto inform plaintiff of this condition were unsuccessful On or about June 27 1969 defendant hired oneKarl T Bittner a registered plumber to repair the toilet Bittner repaired the toilet at a cost of $8572which the tenant paid
On July 15 1969 defendant mailed plaintiff a check for $928 together with the receipt for $8572 inpayment of
[56 NJ 135]
the July rent Plaintiff challenged the offsetting of the cost of the repair and demandedthe outstanding $8572
When his demands were refused plaintiff instituted a summary dispossess action for nonpayment of rentin the Camden County District Court pursuant to NJSA 2A18-53(b) alleging the nonpayment of theJuly rent in the amount of $8572 and August rent of $95 A hearing was had on August 15 1969Plaintiff argued that he was entitled to the $8572 because he had no duty to make repairs andconsequently defendants payment of the cost of repair could not be offset against rent
The judge conceived the issue as entirely a legal one and determined that the facts which defendantalleged did not create a duty upon the landlord to make repairs Thus without trying out the issuestendered by defendant he found a default in payment of rent of $8572 (July) and $95 (August) pluscosts and rendered a judgment for possession Defendant appealed to the Appellate Division
On August 29 1969 a judge of the Appellate Division granted a temporary stay of the judgment forpossession and the warrant of eviction The Appellate Division granted a stay pending appeal onSeptember 23 1969 and ordered defendant to pay all the rents then due except the contested July rentThe Appellate Division also then denied plaintiffs cross-motion to dismiss the appeal Before theAppellate Division heard argument this Court certified the case on its own motion R 212-1
The issues which evolve on this appeal are Did defendants claimed right to offset her cost of repairsagainst rent raise a jurisdictional issue If the answer to that query is in the affirmative did the landlordhave a duty to repair and may the issue of failure to comply with such duty be raised in a dispossessaction Also involved in the latter question is the right of the tenant to make repairs upon the landlordsfailure to so do and the right to offset the cost thereof against rent
[56 NJ 136]
NJSA 2A18-53 provides in part
Any lessee or tenant of any houses buildings lands or tenements may be removed fromsuch premises by the county district court of the county within which such premises are situated in anaction in the following cases
b Where such person shall hold over after a default in the payment of rent pursuant to the agreementunder which the premises are held
NJSA 2A18-59 reads
Proceedings had by virtue of this article shall not be appealable except on the ground of lack ofjurisdiction The landlord however shall remain liable in a civil action for unlawful proceedings under thisarticle
As noted NJSA 2A18-59 permits review of the County District Courts judgment only on the questionof lack of jurisdiction Plaintiff rationalizes that as defendant acknowledges that the rent asserted byplaintiff to be due for the month of July was not paid in full as provided in the lease a defense groundedupon an allegation that the unpaid balance is not owing raises a meritorious issue He states thatdefendants contest of the amount due directs an attack upon plaintiffs right to possession rather than anattack upon the jurisdictional basis of his action Plaintiff argues that the admitted failure to pay in full isin the language of the statute a default and vests the County District Court with jurisdiction to order aremoval of the tenant
Defendant on the other hand contends that the County District Court has jurisdiction in dispossessactions only in those factual complexes specified in NJSA 2A18-53 mdash here for a default in thepayment of rent The issue of the amount of rent due says defendant raising as it does the issue of thedefault alleged by the complaint is directed at the jurisdiction of the County District Court and adetermination
[56 NJ 137]
rejecting her defense of non-default in whole or part is therefore appealable underNJSA 2A18-59
The County District Court in the present matter is vested with jurisdiction as noted only where thereexists a rent default The complaint must delineate specific allegations of fact giving rise to such adefault
While dealing with the following cases cited in connection with the foregoing it must be remembered thatoriginally an action for possession was commenced before a justice of the peace by filing an affidavitLater the jurisdiction was transferred to the District Court but the action continued to be commenced bythe filing of an affidavit In Earl v Krug Baking Co 22 NJ Misc 424 (Cir Ct 1944) the court said inthat connection at p 425
Summary proceedings in the district court for the dispossession of tenants may be described as astatutory substitute for the common law action in ejectment and although the proceedings arecmomenced by the filing of the jurisdictional affidavit that affidavit is nonetheless a complaint in theordinary acceptation of the term
Presently the affidavit has been superseded by a complaint R 63-1 What is said in the following casesconcerning affidavits is equally applicable to presently employed complaints As early as Fowler v Roe25 NJL 549 (Sup Ct 1856) the court said at p 551
In this summary proceeding before a justice of the peace to turn one man out of the possession of thepremises he occupies and put another in the power is delegated by special statutory authority to a courthaving no jurisdiction to try the title to lands and can only be exercised where all the prerequisites to itsexercise prescribed by the statute appear to exist and are shown to have been complied with
Fowler supra also held at p 550 that it must appear from the allegations of the affidavit
1 That the relation of landlord and tenant exists
2 That default has been made by the tenant in the payment of rent according to the terms of theagreement or demise under which he holds
[56 NJ 138]
3 That there are no goods of the tenant on the premises out of which the rent due canbe made by distress
4 That three days notice in writing has been served by the person entitled to the rent on the personowing the same requiring payment or possession
And again in Schuyler v Trefren 26 NJL 213 (Sup Ct 1857) the court said
The proceeding is summary and the jurisdiction is special limited and statutory and every essential toits proper exercise must appear to have been complied with
In Vineland Shopping Center Inc v DeMarco 35 NJ 459 (1961) this Court said at p 464 in referenceto substantiating proof of the pleaded jurisdictional facts
The established principle is that the trial court had jurisdiction if there was evidence from which it couldfind a statutory basis for removal If that test is met the judgment must be affirmed even though it isotherwise infected with error
The jurisdictional issue ie the statutory basis for removal can be twice raised in a dispossess actionFirst by motion directed at the complaint for failure to accurately allege the necessary facts withparticularity Second on trial for failure to adduce adequate proof to corroborate the allegations of thecomplaint If the complaint contains adequate factual allegations of default the issue can be resolvedonly when proof has been adduced Failure to furnish either such allegations in the complaint or proof onthe trial is sufficient ground to warrant dismissal for lack of jurisdiction
As noted in Vineland Shopping Center Inc v DeMarco supra at p 464 our cases have hewed a lineseparating the jurisdictional issue from the meritorious issue Confusion arises from this jurisdictional-meritorious dichotomy by reason of the fact that the same proof is required and goes to the same crucialelement in each ie proof of the default in rent as alleged in the complaint Whatever
[56 NJ 139]
jurisdiction means in other settings here it uniquely connotes the existence of one ofthe factual situations delineated in NJSA 2A18-53 It follows that a finding by thejudge that there is a default as alleged by the landlord does not dispose of themeritorious issue alone It as well disposes of the jurisdictional issue
The jurisdictional issue of default encompasses the question of whether the amount of rent alleged tobe in default is due unpaid and owing not only whether it is due and unpaid The mere fact of thetenants failure to pay rent in full as provided in the lease is not in and of itself a sufficient fact to meetthe statutory jurisdictional requisite Thus a tenants evidence in substantiation of a defense that there isno default or that the default is not in the amount alleged by the landlord is admissible on thejurisdictional issue Consideration must be given not only to a legal defense but as well to an equitableexcuse for non-payment such as confession and avoidance which would relieve the tenant of the dutyof paying and hence make the unpaid rent in whole or part due but not owing and thus not in default
That the County District Court must accept any equitable issue offered to defeat an action within itsjurisdiction or to avoid a separate defense to such action was established by Vineland Shopping CenterInc v DeMarco supra p 469 See also Carteret Properties v Variety Donuts Inc 49 NJ 116 124(1967) This duty is imposed on the County District Court not only in connection with proof of caseswithin its jurisdiction but also on the issue of jurisdiction as well It follows that an equitable defense tothe proof of an alleged rent default in a landlord-tenant dispossess proceeding is permissible and facts insupport thereof admissible
There is no logical reason why a tenant who is successful in having a case removed to the SuperiorCourt under NJSA 2A18-60 shall have the benefit of equitable defenses to jurisdiction while a tenantwho is unsuccessful in
[56 NJ 140]
seeking to have his case removed from the County District Court to the Superior Courtshould be limited to legal defenses[1]
At any time before an action for the removal of a tenant comes on for trial either the landlord or personin possession may apply to the superior court which may if it deems it of sufficient importance orderthe cause transferred from the county district court to the superior court (Emphasis supplied)
The statute furnishes no guidelines for the solution of the question of what constitutes a case ofsufficient importance It is self-evident that every tenant removal is of importance to both the landlordand tenant It could be argued that every such case qualifies for removal to the Superior Court If adispossess action is not removed to the Superior Court appeal by a tenant from an adverse judgment isrestricted to the issue of jurisdiction NJSA 2A18-59 If the action is removed to the Superior Courtappeal is not so restricted Appeal is then available on meritorious grounds as well Vineland ShoppingCenter Inc v DeMarco supra We see no sound reason for any distinction between the right to appealfrom a District Court judgment and a Superior Court judgment for possession It might well be urged thatthere should be no difference between the scope of review from a District Court judgment and a SuperiorCourt judgment We are not however obliged to pass upon that problem in the matter sub judice
We hold therefore that equitable as well as legal defenses asserting payment or absolution frompayment in whole or part are available to a tenant in a dispossess action and must be considered by thecourt Denial of a motion by defendant directed at the complaint for failure to make adequate factualallegations or of a motion at the conclusion of the trial for failure to supply proof that the amount of rentalleged in the complaint is in default both going to the question of jurisdiction are each appealable
Insofar as Peters v Kelly 98 NJSuper 441 (App Div 1968) conflicts with the foregoing it is overruled
It becomes necessary to consider the merits of defendants equitable defense that the failure of thelandlord to repair the toilet constituted a breach of the covenant of habitability or quiet enjoyment andgave rise to defendants
[56 NJ 141]
entitlement to self-help permitting her to repair the toilet and offset the cost thereofagainst her rent We need not concern ourselves with the covenant of quiet enjoymentas will hereafter become apparent
We are here concerned with the lease of premises for residential purposes The lease provides
WITNESSETH that the said party of the first part hath let and by these presents doth grant demiseand to farm let unto the said property of the second part all that contains 4 rooms and bath apartmentsituated in the city and county of camden [sic] state [sic] of New Jersey known and designated as503-B Rand Street
nor use or permit any part thereof to be used for any other purpose than dwelling
As the lease contains no express covenant to repair we are obliged to determine whether there arisesan implied covenant however categorized which would require the landlord to make repairs
A lease was originally considered a conveyance of an interest in real estate Thus the duties andobligations of the parties implied as well as express were dealt with according to the law of propertyand not of the law of contracts In Michaels v Brookchester Inc 26 NJ 379 (1958) this Court said at p
Historically a lease was viewed as a sale of an interest in land The concept of caveat emptorapplicable to such sales seemed logically pertinent to leases of land There was neither an impliedcovenant of fitness for the intended use nor responsibility in the landlord to maintain the leasedpremises Bauer v 141-149 Cedar Lane Holding Co 24 NJ 139 145 130 A2d 833 (1957) Bolitho vMintz 106 NJL 449 148 A 737 (E amp A 1930) This principle suitable for the agrarian setting in whichit was conceived lagged behind changes in dwelling habits and economic realities 1 America Law ofProperty (1952) sect 378 p 347 Exceptions to the broad immunity inevitably developed
The guidelines employed to construe contracts have been modernly applied to the construction of leases3 Thompson
[56 NJ 142]
on Real Property 377 (1959) See also 6 Williston on Contracts 3d ed Jaeger sect 890Ap 592 (1962)
There is a clearly discernible tendency on the part of the courts to cast aside technicalities in theinterpretation of leases and to concentrate their attention as in the case of other contracts on theintention of the parties
In Pines v Perssion 14 Wis2d 590 111 NW2d 409 (Sup Ct Wis 1961) the court stated at p 412
Legislation and administrative rules such as the safeplace statute building codes and healthregulations all impose certain duties on a property owner with respect to the condition of his premisesThus the legislature has made a policy judgment mdash that it is socially (and politically) desirable to imposethese duties on a property owner mdash which has rendered the old common law rule obsolete To follow theold rule of no implied warranty of habitability in leases would in our opinion be inconsistent with thecurrent legislative policy concerning housing standards The need and social desirability of adequatehousing for people in this era of rapid population increases is too important to be rebuffed by thatobnoxious legal cliche caveat emptor Permitting landlords to rent `tumbledown houses is at least acontributing cause of such problems as urban blight juvenile delinquency and high property taxes forconscientious landowners
In Reste Realty Corporation v Cooper 53 NJ 444 (1969) this Court said at p 452
Moreover an awareness by legislatures of the inequality of bar gaining power between landlord andtenant in many cases and the need for tenant protection has produced remedial tenement house andmultiple dwelling statutes See eg NJSA 5513A-1 et seq and the regulations thereunder seegenerally Fuerstein and Shustack `Landlord and Tenant mdash The Statutory Duty to Repair 45 Ill L Rev205 (1950) Annotation 17 ALR 2d 704 (1951) It has come to be recognized that ordinarily the lesseedoes not have as much knowledge of the condition of the premises as the lessor Building coderequirements and violations are known or made known to the lessor not the lessee He is in a betterposition to know of latent defects structural and otherwise in a building which might go unnoticed by alessee who rarely has sufficient knowledge or expertise to see or to discover them A prospective lesseesuch as a small businessman cannot be expected to know if the plumbing or wiring systems areadequate or conform to local codes Nor should he be expected
[56 NJ 143]
to hire experts to advise him Ordinarily all this information should be consideredreadily available to the lessor who in turn can inform the prospective lessee Thesefactors have produced persuasive arguments for reevaluation of the caveat emptordoctrine and for imposition of an implied warranty that the premises are suitable for theleased purposes and conform to local codes and zoning laws
See also Lemle v Breeden 462 P2d 470 (Sup Ct Hawaii 1969)
A covenant in a lease can arise only by necessary implication from specific language of the lease orbecause it is indispensable to carry into effect the purpose of the lease In determining under contractlaw what covenants are implied the object which the parties had in view and intended to beaccomplished is of primary importance The subject matter and circumstances of the letting give at leastas clear a clue to the natural intentions of the parties as do the written words It is of course not theprovince of the court to make a new contract or to supply any material stipulations or conditions whichcontravene the agreements of the parties Kampf v Franklin Life Ins Co 33 NJ 36 (1960) WashingtonConstruction Co Inc v Spinella 8 NJ 212 (1951) City of Camden v South Jersey Port Commission 4NJ 357 (1950) McBride v Maryland Casualty Co 128 NJL 64 (E amp A 1942) Terms are to beimplied not because
they are just or reasonable but rather for the reason that the parties must have intended them and haveonly failed to express them or because they are necessary to give business efficacy to the contractas written or to give the contract the effect which the parties as fair and reasonable men presumablywould have agreed on if having in mind the possibility of the situation which has arisen they contractedexpressly in reference thereto See 12 Am Jur Contracts sec 239 14 Am Jur Covenants Conditionsand Restrictions sec 14 William Berland Realty Co v Hahne amp Co 26 NJSuper 477 487 (Ch1953) modified 29 NJSuper 316 (App Div 1954)
See also Silverstein v Keane 19 NJ 1 (1955) Cragmere Holding Corp v Socony Mobile Oil Co 65NJSuper 322 (App Div 1961)
[56 NJ 144]
So here the lease expressly described the leased premises as 4 rooms and bathapartment and restricted the use thereof for one purpose mdash dwelling Patently theeffect which the parties as fair and reasonable men presumably would have agreedon was that the premises were habitable and fit for living The very object of the lettingwas to furnish the defendant with quarters suitable for living purposes This is what thelandlord at least impliedly (if not expressly) represented he had available and what thetenant was seeking In a modern setting the landlord should in residential letting beheld to an implied covenant against latent defects which is another manner of sayinghabitability and livability fitness See Hyland v Parkside Investment Co Inc 10 NJMisc 1148 (Sup Ct 1932) It is a mere matter of semantics whether we designate thiscovenant one to repair or of habitability and livability fitness Actually it is a covenantthat at the inception of the lease there are no latent defects in facilities vital to the useof the premises for residential purposes because of faulty original construction ordeterioration from age or normal usage And further it is a covenant that these facilitieswill remain in usable condition during the entire term of the lease In performance ofthis covenant the landlord is required to maintain those facilities in a condition whichrenders the property livable
It is eminently fair and just to charge a landlord with the duty of warranting that a building or part thereofrented for residential purpose is fit for that purpose at the inception of the term and will remain so duringthe entire term Of course ancillary to such understanding it must be implied that he has further agreedto repair damage to vital facilities caused by ordinary wear and tear during said term Where damage hasbeen caused maliciously or by abnormal or unusual use the tenant is conversely liable for repair Thenature of vital facilities and the extent and type of maintenance and repair required is limited and
[56 NJ 145]
governed by the type of property rented and the amount of rent reserved Failure to somaintain the property would constitute a constructive eviction
It becomes necessary to consider the respective rights and duties which accompany such an impliedcovenant We must recognize that historically the landlords covenant to alter or repair premises and thetenants covenant to pay rent were generally regarded as independent covenants The landlords failureto perform did not entitle the tenant to make the repair and offset the cost thereof against future rent Itonly gave rise to a separate cause of action for breach of covenant Duncan Development Co v DuncanHardware Inc 34 NJSuper 293 at 298 (App Div 1955) cert denied 19 NJ 328 (1955) Stewart vChilds Co 86 NJL 648 (E amp A 1914) This result also eventuated from the application of the law ofreal estate rather than of contract The concept of mutually dependent promises was not originallyapplied to the ascertainment of whether covenants in leases were dependent or independent Howeverpresently we recognize that covenants are dependent or independent according to the intention of theparties and the good sense of the case Higgins v Whiting 102 NJL 279 (Sup Ct 1925) 3 Thompsonon Real Property sect 1115 (1959 Replacement)
In Higgins v Whiting supra the court said at pp 280 and 281 concerning the test of dependency ofexpress covenants
In 24 Cyc 918 it is said that covenants are to be construed as dependent or independent according tothe intention and meaning of the parties and the good sense of the case Technical words should giveway to such intention 7 RCL 1090 sect 7 So the rule is thus stated where the acts or covenants of theparties are concurrent and to be done or performed at the same time the covenants are dependent andneither party can maintain an action against the other without averring and proving performance on hispart 13 Corpus Juris 567
In the present case the covenant to pay rent and the covenant to heat the apartment are mutual anddependent In the modern
[56 NJ 146]
apartment house equipped for heating from a central plant entirely under the control ofthe landlord or his agent heat is one of the things for which the tenant pays under thename `rent
Our courts have on a case by case basis held various lease covenants and covenants to pay rent asdependent and under the guise of a constructive eviction have considered breach of the former as givingthe right to the tenant to remove from the premises and terminate his obligation to pay rent SeeMcCurdy v Wyckoff 73 NJL 368 (Sup Ct 1906) Weiler v Pancoast 71 NJL 414 (Sup Ct 1904)Higgins v Whiting 102 NJL 279 (Sup Ct 1925) Stevenson Stanoyevich Fund v Steinacher 125NJL 326 (Sup Ct 1940)
It is of little comfort to a tenant in these days of housing shortage to accord him the right upon aconstructive eviction to vacate the premises and end his obligation to pay rent Rather he should beaccorded the alternative remedy of terminating the cause of the constructive eviction where as here thecause is the failure to make reasonable repairs See Reste Realty Corporation v Cooper supra footnote1 53 NJ pp 462 463 This latter course of action is accompanied by the right to offset the cost of suchrepairs as are reasonable in the light of the value of the leasehold against the rent His pursuit of thelatter form of relief should of course be circumscribed by the aforementioned conditions
If therefore a landlord fails to make the repairs and replacements of vital facilities necessary to maintainthe premises in a livable condition for a period of time adequate to accomplish such repair andreplacements the tenant may cause the same to be done and deduct the cost thereof from future rentsThe tenants recourse to such self-help must be preceded by timely and adequate notice to the landlordof the faulty condition in order to accord him the opportunity to make the necessary replacement orrepair If the tenant is unable to give such notice after a reasonable attempt he may nonetheless
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
COMMENT
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
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Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
was cracked and water was leaking onto the bathroom floor She further alleges that repeated attemptsto inform plaintiff of this condition were unsuccessful On or about June 27 1969 defendant hired oneKarl T Bittner a registered plumber to repair the toilet Bittner repaired the toilet at a cost of $8572which the tenant paid
On July 15 1969 defendant mailed plaintiff a check for $928 together with the receipt for $8572 inpayment of
[56 NJ 135]
the July rent Plaintiff challenged the offsetting of the cost of the repair and demandedthe outstanding $8572
When his demands were refused plaintiff instituted a summary dispossess action for nonpayment of rentin the Camden County District Court pursuant to NJSA 2A18-53(b) alleging the nonpayment of theJuly rent in the amount of $8572 and August rent of $95 A hearing was had on August 15 1969Plaintiff argued that he was entitled to the $8572 because he had no duty to make repairs andconsequently defendants payment of the cost of repair could not be offset against rent
The judge conceived the issue as entirely a legal one and determined that the facts which defendantalleged did not create a duty upon the landlord to make repairs Thus without trying out the issuestendered by defendant he found a default in payment of rent of $8572 (July) and $95 (August) pluscosts and rendered a judgment for possession Defendant appealed to the Appellate Division
On August 29 1969 a judge of the Appellate Division granted a temporary stay of the judgment forpossession and the warrant of eviction The Appellate Division granted a stay pending appeal onSeptember 23 1969 and ordered defendant to pay all the rents then due except the contested July rentThe Appellate Division also then denied plaintiffs cross-motion to dismiss the appeal Before theAppellate Division heard argument this Court certified the case on its own motion R 212-1
The issues which evolve on this appeal are Did defendants claimed right to offset her cost of repairsagainst rent raise a jurisdictional issue If the answer to that query is in the affirmative did the landlordhave a duty to repair and may the issue of failure to comply with such duty be raised in a dispossessaction Also involved in the latter question is the right of the tenant to make repairs upon the landlordsfailure to so do and the right to offset the cost thereof against rent
[56 NJ 136]
NJSA 2A18-53 provides in part
Any lessee or tenant of any houses buildings lands or tenements may be removed fromsuch premises by the county district court of the county within which such premises are situated in anaction in the following cases
b Where such person shall hold over after a default in the payment of rent pursuant to the agreementunder which the premises are held
NJSA 2A18-59 reads
Proceedings had by virtue of this article shall not be appealable except on the ground of lack ofjurisdiction The landlord however shall remain liable in a civil action for unlawful proceedings under thisarticle
As noted NJSA 2A18-59 permits review of the County District Courts judgment only on the questionof lack of jurisdiction Plaintiff rationalizes that as defendant acknowledges that the rent asserted byplaintiff to be due for the month of July was not paid in full as provided in the lease a defense groundedupon an allegation that the unpaid balance is not owing raises a meritorious issue He states thatdefendants contest of the amount due directs an attack upon plaintiffs right to possession rather than anattack upon the jurisdictional basis of his action Plaintiff argues that the admitted failure to pay in full isin the language of the statute a default and vests the County District Court with jurisdiction to order aremoval of the tenant
Defendant on the other hand contends that the County District Court has jurisdiction in dispossessactions only in those factual complexes specified in NJSA 2A18-53 mdash here for a default in thepayment of rent The issue of the amount of rent due says defendant raising as it does the issue of thedefault alleged by the complaint is directed at the jurisdiction of the County District Court and adetermination
[56 NJ 137]
rejecting her defense of non-default in whole or part is therefore appealable underNJSA 2A18-59
The County District Court in the present matter is vested with jurisdiction as noted only where thereexists a rent default The complaint must delineate specific allegations of fact giving rise to such adefault
While dealing with the following cases cited in connection with the foregoing it must be remembered thatoriginally an action for possession was commenced before a justice of the peace by filing an affidavitLater the jurisdiction was transferred to the District Court but the action continued to be commenced bythe filing of an affidavit In Earl v Krug Baking Co 22 NJ Misc 424 (Cir Ct 1944) the court said inthat connection at p 425
Summary proceedings in the district court for the dispossession of tenants may be described as astatutory substitute for the common law action in ejectment and although the proceedings arecmomenced by the filing of the jurisdictional affidavit that affidavit is nonetheless a complaint in theordinary acceptation of the term
Presently the affidavit has been superseded by a complaint R 63-1 What is said in the following casesconcerning affidavits is equally applicable to presently employed complaints As early as Fowler v Roe25 NJL 549 (Sup Ct 1856) the court said at p 551
In this summary proceeding before a justice of the peace to turn one man out of the possession of thepremises he occupies and put another in the power is delegated by special statutory authority to a courthaving no jurisdiction to try the title to lands and can only be exercised where all the prerequisites to itsexercise prescribed by the statute appear to exist and are shown to have been complied with
Fowler supra also held at p 550 that it must appear from the allegations of the affidavit
1 That the relation of landlord and tenant exists
2 That default has been made by the tenant in the payment of rent according to the terms of theagreement or demise under which he holds
[56 NJ 138]
3 That there are no goods of the tenant on the premises out of which the rent due canbe made by distress
4 That three days notice in writing has been served by the person entitled to the rent on the personowing the same requiring payment or possession
And again in Schuyler v Trefren 26 NJL 213 (Sup Ct 1857) the court said
The proceeding is summary and the jurisdiction is special limited and statutory and every essential toits proper exercise must appear to have been complied with
In Vineland Shopping Center Inc v DeMarco 35 NJ 459 (1961) this Court said at p 464 in referenceto substantiating proof of the pleaded jurisdictional facts
The established principle is that the trial court had jurisdiction if there was evidence from which it couldfind a statutory basis for removal If that test is met the judgment must be affirmed even though it isotherwise infected with error
The jurisdictional issue ie the statutory basis for removal can be twice raised in a dispossess actionFirst by motion directed at the complaint for failure to accurately allege the necessary facts withparticularity Second on trial for failure to adduce adequate proof to corroborate the allegations of thecomplaint If the complaint contains adequate factual allegations of default the issue can be resolvedonly when proof has been adduced Failure to furnish either such allegations in the complaint or proof onthe trial is sufficient ground to warrant dismissal for lack of jurisdiction
As noted in Vineland Shopping Center Inc v DeMarco supra at p 464 our cases have hewed a lineseparating the jurisdictional issue from the meritorious issue Confusion arises from this jurisdictional-meritorious dichotomy by reason of the fact that the same proof is required and goes to the same crucialelement in each ie proof of the default in rent as alleged in the complaint Whatever
[56 NJ 139]
jurisdiction means in other settings here it uniquely connotes the existence of one ofthe factual situations delineated in NJSA 2A18-53 It follows that a finding by thejudge that there is a default as alleged by the landlord does not dispose of themeritorious issue alone It as well disposes of the jurisdictional issue
The jurisdictional issue of default encompasses the question of whether the amount of rent alleged tobe in default is due unpaid and owing not only whether it is due and unpaid The mere fact of thetenants failure to pay rent in full as provided in the lease is not in and of itself a sufficient fact to meetthe statutory jurisdictional requisite Thus a tenants evidence in substantiation of a defense that there isno default or that the default is not in the amount alleged by the landlord is admissible on thejurisdictional issue Consideration must be given not only to a legal defense but as well to an equitableexcuse for non-payment such as confession and avoidance which would relieve the tenant of the dutyof paying and hence make the unpaid rent in whole or part due but not owing and thus not in default
That the County District Court must accept any equitable issue offered to defeat an action within itsjurisdiction or to avoid a separate defense to such action was established by Vineland Shopping CenterInc v DeMarco supra p 469 See also Carteret Properties v Variety Donuts Inc 49 NJ 116 124(1967) This duty is imposed on the County District Court not only in connection with proof of caseswithin its jurisdiction but also on the issue of jurisdiction as well It follows that an equitable defense tothe proof of an alleged rent default in a landlord-tenant dispossess proceeding is permissible and facts insupport thereof admissible
There is no logical reason why a tenant who is successful in having a case removed to the SuperiorCourt under NJSA 2A18-60 shall have the benefit of equitable defenses to jurisdiction while a tenantwho is unsuccessful in
[56 NJ 140]
seeking to have his case removed from the County District Court to the Superior Courtshould be limited to legal defenses[1]
At any time before an action for the removal of a tenant comes on for trial either the landlord or personin possession may apply to the superior court which may if it deems it of sufficient importance orderthe cause transferred from the county district court to the superior court (Emphasis supplied)
The statute furnishes no guidelines for the solution of the question of what constitutes a case ofsufficient importance It is self-evident that every tenant removal is of importance to both the landlordand tenant It could be argued that every such case qualifies for removal to the Superior Court If adispossess action is not removed to the Superior Court appeal by a tenant from an adverse judgment isrestricted to the issue of jurisdiction NJSA 2A18-59 If the action is removed to the Superior Courtappeal is not so restricted Appeal is then available on meritorious grounds as well Vineland ShoppingCenter Inc v DeMarco supra We see no sound reason for any distinction between the right to appealfrom a District Court judgment and a Superior Court judgment for possession It might well be urged thatthere should be no difference between the scope of review from a District Court judgment and a SuperiorCourt judgment We are not however obliged to pass upon that problem in the matter sub judice
We hold therefore that equitable as well as legal defenses asserting payment or absolution frompayment in whole or part are available to a tenant in a dispossess action and must be considered by thecourt Denial of a motion by defendant directed at the complaint for failure to make adequate factualallegations or of a motion at the conclusion of the trial for failure to supply proof that the amount of rentalleged in the complaint is in default both going to the question of jurisdiction are each appealable
Insofar as Peters v Kelly 98 NJSuper 441 (App Div 1968) conflicts with the foregoing it is overruled
It becomes necessary to consider the merits of defendants equitable defense that the failure of thelandlord to repair the toilet constituted a breach of the covenant of habitability or quiet enjoyment andgave rise to defendants
[56 NJ 141]
entitlement to self-help permitting her to repair the toilet and offset the cost thereofagainst her rent We need not concern ourselves with the covenant of quiet enjoymentas will hereafter become apparent
We are here concerned with the lease of premises for residential purposes The lease provides
WITNESSETH that the said party of the first part hath let and by these presents doth grant demiseand to farm let unto the said property of the second part all that contains 4 rooms and bath apartmentsituated in the city and county of camden [sic] state [sic] of New Jersey known and designated as503-B Rand Street
nor use or permit any part thereof to be used for any other purpose than dwelling
As the lease contains no express covenant to repair we are obliged to determine whether there arisesan implied covenant however categorized which would require the landlord to make repairs
A lease was originally considered a conveyance of an interest in real estate Thus the duties andobligations of the parties implied as well as express were dealt with according to the law of propertyand not of the law of contracts In Michaels v Brookchester Inc 26 NJ 379 (1958) this Court said at p
Historically a lease was viewed as a sale of an interest in land The concept of caveat emptorapplicable to such sales seemed logically pertinent to leases of land There was neither an impliedcovenant of fitness for the intended use nor responsibility in the landlord to maintain the leasedpremises Bauer v 141-149 Cedar Lane Holding Co 24 NJ 139 145 130 A2d 833 (1957) Bolitho vMintz 106 NJL 449 148 A 737 (E amp A 1930) This principle suitable for the agrarian setting in whichit was conceived lagged behind changes in dwelling habits and economic realities 1 America Law ofProperty (1952) sect 378 p 347 Exceptions to the broad immunity inevitably developed
The guidelines employed to construe contracts have been modernly applied to the construction of leases3 Thompson
[56 NJ 142]
on Real Property 377 (1959) See also 6 Williston on Contracts 3d ed Jaeger sect 890Ap 592 (1962)
There is a clearly discernible tendency on the part of the courts to cast aside technicalities in theinterpretation of leases and to concentrate their attention as in the case of other contracts on theintention of the parties
In Pines v Perssion 14 Wis2d 590 111 NW2d 409 (Sup Ct Wis 1961) the court stated at p 412
Legislation and administrative rules such as the safeplace statute building codes and healthregulations all impose certain duties on a property owner with respect to the condition of his premisesThus the legislature has made a policy judgment mdash that it is socially (and politically) desirable to imposethese duties on a property owner mdash which has rendered the old common law rule obsolete To follow theold rule of no implied warranty of habitability in leases would in our opinion be inconsistent with thecurrent legislative policy concerning housing standards The need and social desirability of adequatehousing for people in this era of rapid population increases is too important to be rebuffed by thatobnoxious legal cliche caveat emptor Permitting landlords to rent `tumbledown houses is at least acontributing cause of such problems as urban blight juvenile delinquency and high property taxes forconscientious landowners
In Reste Realty Corporation v Cooper 53 NJ 444 (1969) this Court said at p 452
Moreover an awareness by legislatures of the inequality of bar gaining power between landlord andtenant in many cases and the need for tenant protection has produced remedial tenement house andmultiple dwelling statutes See eg NJSA 5513A-1 et seq and the regulations thereunder seegenerally Fuerstein and Shustack `Landlord and Tenant mdash The Statutory Duty to Repair 45 Ill L Rev205 (1950) Annotation 17 ALR 2d 704 (1951) It has come to be recognized that ordinarily the lesseedoes not have as much knowledge of the condition of the premises as the lessor Building coderequirements and violations are known or made known to the lessor not the lessee He is in a betterposition to know of latent defects structural and otherwise in a building which might go unnoticed by alessee who rarely has sufficient knowledge or expertise to see or to discover them A prospective lesseesuch as a small businessman cannot be expected to know if the plumbing or wiring systems areadequate or conform to local codes Nor should he be expected
[56 NJ 143]
to hire experts to advise him Ordinarily all this information should be consideredreadily available to the lessor who in turn can inform the prospective lessee Thesefactors have produced persuasive arguments for reevaluation of the caveat emptordoctrine and for imposition of an implied warranty that the premises are suitable for theleased purposes and conform to local codes and zoning laws
See also Lemle v Breeden 462 P2d 470 (Sup Ct Hawaii 1969)
A covenant in a lease can arise only by necessary implication from specific language of the lease orbecause it is indispensable to carry into effect the purpose of the lease In determining under contractlaw what covenants are implied the object which the parties had in view and intended to beaccomplished is of primary importance The subject matter and circumstances of the letting give at leastas clear a clue to the natural intentions of the parties as do the written words It is of course not theprovince of the court to make a new contract or to supply any material stipulations or conditions whichcontravene the agreements of the parties Kampf v Franklin Life Ins Co 33 NJ 36 (1960) WashingtonConstruction Co Inc v Spinella 8 NJ 212 (1951) City of Camden v South Jersey Port Commission 4NJ 357 (1950) McBride v Maryland Casualty Co 128 NJL 64 (E amp A 1942) Terms are to beimplied not because
they are just or reasonable but rather for the reason that the parties must have intended them and haveonly failed to express them or because they are necessary to give business efficacy to the contractas written or to give the contract the effect which the parties as fair and reasonable men presumablywould have agreed on if having in mind the possibility of the situation which has arisen they contractedexpressly in reference thereto See 12 Am Jur Contracts sec 239 14 Am Jur Covenants Conditionsand Restrictions sec 14 William Berland Realty Co v Hahne amp Co 26 NJSuper 477 487 (Ch1953) modified 29 NJSuper 316 (App Div 1954)
See also Silverstein v Keane 19 NJ 1 (1955) Cragmere Holding Corp v Socony Mobile Oil Co 65NJSuper 322 (App Div 1961)
[56 NJ 144]
So here the lease expressly described the leased premises as 4 rooms and bathapartment and restricted the use thereof for one purpose mdash dwelling Patently theeffect which the parties as fair and reasonable men presumably would have agreedon was that the premises were habitable and fit for living The very object of the lettingwas to furnish the defendant with quarters suitable for living purposes This is what thelandlord at least impliedly (if not expressly) represented he had available and what thetenant was seeking In a modern setting the landlord should in residential letting beheld to an implied covenant against latent defects which is another manner of sayinghabitability and livability fitness See Hyland v Parkside Investment Co Inc 10 NJMisc 1148 (Sup Ct 1932) It is a mere matter of semantics whether we designate thiscovenant one to repair or of habitability and livability fitness Actually it is a covenantthat at the inception of the lease there are no latent defects in facilities vital to the useof the premises for residential purposes because of faulty original construction ordeterioration from age or normal usage And further it is a covenant that these facilitieswill remain in usable condition during the entire term of the lease In performance ofthis covenant the landlord is required to maintain those facilities in a condition whichrenders the property livable
It is eminently fair and just to charge a landlord with the duty of warranting that a building or part thereofrented for residential purpose is fit for that purpose at the inception of the term and will remain so duringthe entire term Of course ancillary to such understanding it must be implied that he has further agreedto repair damage to vital facilities caused by ordinary wear and tear during said term Where damage hasbeen caused maliciously or by abnormal or unusual use the tenant is conversely liable for repair Thenature of vital facilities and the extent and type of maintenance and repair required is limited and
[56 NJ 145]
governed by the type of property rented and the amount of rent reserved Failure to somaintain the property would constitute a constructive eviction
It becomes necessary to consider the respective rights and duties which accompany such an impliedcovenant We must recognize that historically the landlords covenant to alter or repair premises and thetenants covenant to pay rent were generally regarded as independent covenants The landlords failureto perform did not entitle the tenant to make the repair and offset the cost thereof against future rent Itonly gave rise to a separate cause of action for breach of covenant Duncan Development Co v DuncanHardware Inc 34 NJSuper 293 at 298 (App Div 1955) cert denied 19 NJ 328 (1955) Stewart vChilds Co 86 NJL 648 (E amp A 1914) This result also eventuated from the application of the law ofreal estate rather than of contract The concept of mutually dependent promises was not originallyapplied to the ascertainment of whether covenants in leases were dependent or independent Howeverpresently we recognize that covenants are dependent or independent according to the intention of theparties and the good sense of the case Higgins v Whiting 102 NJL 279 (Sup Ct 1925) 3 Thompsonon Real Property sect 1115 (1959 Replacement)
In Higgins v Whiting supra the court said at pp 280 and 281 concerning the test of dependency ofexpress covenants
In 24 Cyc 918 it is said that covenants are to be construed as dependent or independent according tothe intention and meaning of the parties and the good sense of the case Technical words should giveway to such intention 7 RCL 1090 sect 7 So the rule is thus stated where the acts or covenants of theparties are concurrent and to be done or performed at the same time the covenants are dependent andneither party can maintain an action against the other without averring and proving performance on hispart 13 Corpus Juris 567
In the present case the covenant to pay rent and the covenant to heat the apartment are mutual anddependent In the modern
[56 NJ 146]
apartment house equipped for heating from a central plant entirely under the control ofthe landlord or his agent heat is one of the things for which the tenant pays under thename `rent
Our courts have on a case by case basis held various lease covenants and covenants to pay rent asdependent and under the guise of a constructive eviction have considered breach of the former as givingthe right to the tenant to remove from the premises and terminate his obligation to pay rent SeeMcCurdy v Wyckoff 73 NJL 368 (Sup Ct 1906) Weiler v Pancoast 71 NJL 414 (Sup Ct 1904)Higgins v Whiting 102 NJL 279 (Sup Ct 1925) Stevenson Stanoyevich Fund v Steinacher 125NJL 326 (Sup Ct 1940)
It is of little comfort to a tenant in these days of housing shortage to accord him the right upon aconstructive eviction to vacate the premises and end his obligation to pay rent Rather he should beaccorded the alternative remedy of terminating the cause of the constructive eviction where as here thecause is the failure to make reasonable repairs See Reste Realty Corporation v Cooper supra footnote1 53 NJ pp 462 463 This latter course of action is accompanied by the right to offset the cost of suchrepairs as are reasonable in the light of the value of the leasehold against the rent His pursuit of thelatter form of relief should of course be circumscribed by the aforementioned conditions
If therefore a landlord fails to make the repairs and replacements of vital facilities necessary to maintainthe premises in a livable condition for a period of time adequate to accomplish such repair andreplacements the tenant may cause the same to be done and deduct the cost thereof from future rentsThe tenants recourse to such self-help must be preceded by timely and adequate notice to the landlordof the faulty condition in order to accord him the opportunity to make the necessary replacement orrepair If the tenant is unable to give such notice after a reasonable attempt he may nonetheless
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
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of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
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limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
As noted NJSA 2A18-59 permits review of the County District Courts judgment only on the questionof lack of jurisdiction Plaintiff rationalizes that as defendant acknowledges that the rent asserted byplaintiff to be due for the month of July was not paid in full as provided in the lease a defense groundedupon an allegation that the unpaid balance is not owing raises a meritorious issue He states thatdefendants contest of the amount due directs an attack upon plaintiffs right to possession rather than anattack upon the jurisdictional basis of his action Plaintiff argues that the admitted failure to pay in full isin the language of the statute a default and vests the County District Court with jurisdiction to order aremoval of the tenant
Defendant on the other hand contends that the County District Court has jurisdiction in dispossessactions only in those factual complexes specified in NJSA 2A18-53 mdash here for a default in thepayment of rent The issue of the amount of rent due says defendant raising as it does the issue of thedefault alleged by the complaint is directed at the jurisdiction of the County District Court and adetermination
[56 NJ 137]
rejecting her defense of non-default in whole or part is therefore appealable underNJSA 2A18-59
The County District Court in the present matter is vested with jurisdiction as noted only where thereexists a rent default The complaint must delineate specific allegations of fact giving rise to such adefault
While dealing with the following cases cited in connection with the foregoing it must be remembered thatoriginally an action for possession was commenced before a justice of the peace by filing an affidavitLater the jurisdiction was transferred to the District Court but the action continued to be commenced bythe filing of an affidavit In Earl v Krug Baking Co 22 NJ Misc 424 (Cir Ct 1944) the court said inthat connection at p 425
Summary proceedings in the district court for the dispossession of tenants may be described as astatutory substitute for the common law action in ejectment and although the proceedings arecmomenced by the filing of the jurisdictional affidavit that affidavit is nonetheless a complaint in theordinary acceptation of the term
Presently the affidavit has been superseded by a complaint R 63-1 What is said in the following casesconcerning affidavits is equally applicable to presently employed complaints As early as Fowler v Roe25 NJL 549 (Sup Ct 1856) the court said at p 551
In this summary proceeding before a justice of the peace to turn one man out of the possession of thepremises he occupies and put another in the power is delegated by special statutory authority to a courthaving no jurisdiction to try the title to lands and can only be exercised where all the prerequisites to itsexercise prescribed by the statute appear to exist and are shown to have been complied with
Fowler supra also held at p 550 that it must appear from the allegations of the affidavit
1 That the relation of landlord and tenant exists
2 That default has been made by the tenant in the payment of rent according to the terms of theagreement or demise under which he holds
[56 NJ 138]
3 That there are no goods of the tenant on the premises out of which the rent due canbe made by distress
4 That three days notice in writing has been served by the person entitled to the rent on the personowing the same requiring payment or possession
And again in Schuyler v Trefren 26 NJL 213 (Sup Ct 1857) the court said
The proceeding is summary and the jurisdiction is special limited and statutory and every essential toits proper exercise must appear to have been complied with
In Vineland Shopping Center Inc v DeMarco 35 NJ 459 (1961) this Court said at p 464 in referenceto substantiating proof of the pleaded jurisdictional facts
The established principle is that the trial court had jurisdiction if there was evidence from which it couldfind a statutory basis for removal If that test is met the judgment must be affirmed even though it isotherwise infected with error
The jurisdictional issue ie the statutory basis for removal can be twice raised in a dispossess actionFirst by motion directed at the complaint for failure to accurately allege the necessary facts withparticularity Second on trial for failure to adduce adequate proof to corroborate the allegations of thecomplaint If the complaint contains adequate factual allegations of default the issue can be resolvedonly when proof has been adduced Failure to furnish either such allegations in the complaint or proof onthe trial is sufficient ground to warrant dismissal for lack of jurisdiction
As noted in Vineland Shopping Center Inc v DeMarco supra at p 464 our cases have hewed a lineseparating the jurisdictional issue from the meritorious issue Confusion arises from this jurisdictional-meritorious dichotomy by reason of the fact that the same proof is required and goes to the same crucialelement in each ie proof of the default in rent as alleged in the complaint Whatever
[56 NJ 139]
jurisdiction means in other settings here it uniquely connotes the existence of one ofthe factual situations delineated in NJSA 2A18-53 It follows that a finding by thejudge that there is a default as alleged by the landlord does not dispose of themeritorious issue alone It as well disposes of the jurisdictional issue
The jurisdictional issue of default encompasses the question of whether the amount of rent alleged tobe in default is due unpaid and owing not only whether it is due and unpaid The mere fact of thetenants failure to pay rent in full as provided in the lease is not in and of itself a sufficient fact to meetthe statutory jurisdictional requisite Thus a tenants evidence in substantiation of a defense that there isno default or that the default is not in the amount alleged by the landlord is admissible on thejurisdictional issue Consideration must be given not only to a legal defense but as well to an equitableexcuse for non-payment such as confession and avoidance which would relieve the tenant of the dutyof paying and hence make the unpaid rent in whole or part due but not owing and thus not in default
That the County District Court must accept any equitable issue offered to defeat an action within itsjurisdiction or to avoid a separate defense to such action was established by Vineland Shopping CenterInc v DeMarco supra p 469 See also Carteret Properties v Variety Donuts Inc 49 NJ 116 124(1967) This duty is imposed on the County District Court not only in connection with proof of caseswithin its jurisdiction but also on the issue of jurisdiction as well It follows that an equitable defense tothe proof of an alleged rent default in a landlord-tenant dispossess proceeding is permissible and facts insupport thereof admissible
There is no logical reason why a tenant who is successful in having a case removed to the SuperiorCourt under NJSA 2A18-60 shall have the benefit of equitable defenses to jurisdiction while a tenantwho is unsuccessful in
[56 NJ 140]
seeking to have his case removed from the County District Court to the Superior Courtshould be limited to legal defenses[1]
At any time before an action for the removal of a tenant comes on for trial either the landlord or personin possession may apply to the superior court which may if it deems it of sufficient importance orderthe cause transferred from the county district court to the superior court (Emphasis supplied)
The statute furnishes no guidelines for the solution of the question of what constitutes a case ofsufficient importance It is self-evident that every tenant removal is of importance to both the landlordand tenant It could be argued that every such case qualifies for removal to the Superior Court If adispossess action is not removed to the Superior Court appeal by a tenant from an adverse judgment isrestricted to the issue of jurisdiction NJSA 2A18-59 If the action is removed to the Superior Courtappeal is not so restricted Appeal is then available on meritorious grounds as well Vineland ShoppingCenter Inc v DeMarco supra We see no sound reason for any distinction between the right to appealfrom a District Court judgment and a Superior Court judgment for possession It might well be urged thatthere should be no difference between the scope of review from a District Court judgment and a SuperiorCourt judgment We are not however obliged to pass upon that problem in the matter sub judice
We hold therefore that equitable as well as legal defenses asserting payment or absolution frompayment in whole or part are available to a tenant in a dispossess action and must be considered by thecourt Denial of a motion by defendant directed at the complaint for failure to make adequate factualallegations or of a motion at the conclusion of the trial for failure to supply proof that the amount of rentalleged in the complaint is in default both going to the question of jurisdiction are each appealable
Insofar as Peters v Kelly 98 NJSuper 441 (App Div 1968) conflicts with the foregoing it is overruled
It becomes necessary to consider the merits of defendants equitable defense that the failure of thelandlord to repair the toilet constituted a breach of the covenant of habitability or quiet enjoyment andgave rise to defendants
[56 NJ 141]
entitlement to self-help permitting her to repair the toilet and offset the cost thereofagainst her rent We need not concern ourselves with the covenant of quiet enjoymentas will hereafter become apparent
We are here concerned with the lease of premises for residential purposes The lease provides
WITNESSETH that the said party of the first part hath let and by these presents doth grant demiseand to farm let unto the said property of the second part all that contains 4 rooms and bath apartmentsituated in the city and county of camden [sic] state [sic] of New Jersey known and designated as503-B Rand Street
nor use or permit any part thereof to be used for any other purpose than dwelling
As the lease contains no express covenant to repair we are obliged to determine whether there arisesan implied covenant however categorized which would require the landlord to make repairs
A lease was originally considered a conveyance of an interest in real estate Thus the duties andobligations of the parties implied as well as express were dealt with according to the law of propertyand not of the law of contracts In Michaels v Brookchester Inc 26 NJ 379 (1958) this Court said at p
Historically a lease was viewed as a sale of an interest in land The concept of caveat emptorapplicable to such sales seemed logically pertinent to leases of land There was neither an impliedcovenant of fitness for the intended use nor responsibility in the landlord to maintain the leasedpremises Bauer v 141-149 Cedar Lane Holding Co 24 NJ 139 145 130 A2d 833 (1957) Bolitho vMintz 106 NJL 449 148 A 737 (E amp A 1930) This principle suitable for the agrarian setting in whichit was conceived lagged behind changes in dwelling habits and economic realities 1 America Law ofProperty (1952) sect 378 p 347 Exceptions to the broad immunity inevitably developed
The guidelines employed to construe contracts have been modernly applied to the construction of leases3 Thompson
[56 NJ 142]
on Real Property 377 (1959) See also 6 Williston on Contracts 3d ed Jaeger sect 890Ap 592 (1962)
There is a clearly discernible tendency on the part of the courts to cast aside technicalities in theinterpretation of leases and to concentrate their attention as in the case of other contracts on theintention of the parties
In Pines v Perssion 14 Wis2d 590 111 NW2d 409 (Sup Ct Wis 1961) the court stated at p 412
Legislation and administrative rules such as the safeplace statute building codes and healthregulations all impose certain duties on a property owner with respect to the condition of his premisesThus the legislature has made a policy judgment mdash that it is socially (and politically) desirable to imposethese duties on a property owner mdash which has rendered the old common law rule obsolete To follow theold rule of no implied warranty of habitability in leases would in our opinion be inconsistent with thecurrent legislative policy concerning housing standards The need and social desirability of adequatehousing for people in this era of rapid population increases is too important to be rebuffed by thatobnoxious legal cliche caveat emptor Permitting landlords to rent `tumbledown houses is at least acontributing cause of such problems as urban blight juvenile delinquency and high property taxes forconscientious landowners
In Reste Realty Corporation v Cooper 53 NJ 444 (1969) this Court said at p 452
Moreover an awareness by legislatures of the inequality of bar gaining power between landlord andtenant in many cases and the need for tenant protection has produced remedial tenement house andmultiple dwelling statutes See eg NJSA 5513A-1 et seq and the regulations thereunder seegenerally Fuerstein and Shustack `Landlord and Tenant mdash The Statutory Duty to Repair 45 Ill L Rev205 (1950) Annotation 17 ALR 2d 704 (1951) It has come to be recognized that ordinarily the lesseedoes not have as much knowledge of the condition of the premises as the lessor Building coderequirements and violations are known or made known to the lessor not the lessee He is in a betterposition to know of latent defects structural and otherwise in a building which might go unnoticed by alessee who rarely has sufficient knowledge or expertise to see or to discover them A prospective lesseesuch as a small businessman cannot be expected to know if the plumbing or wiring systems areadequate or conform to local codes Nor should he be expected
[56 NJ 143]
to hire experts to advise him Ordinarily all this information should be consideredreadily available to the lessor who in turn can inform the prospective lessee Thesefactors have produced persuasive arguments for reevaluation of the caveat emptordoctrine and for imposition of an implied warranty that the premises are suitable for theleased purposes and conform to local codes and zoning laws
See also Lemle v Breeden 462 P2d 470 (Sup Ct Hawaii 1969)
A covenant in a lease can arise only by necessary implication from specific language of the lease orbecause it is indispensable to carry into effect the purpose of the lease In determining under contractlaw what covenants are implied the object which the parties had in view and intended to beaccomplished is of primary importance The subject matter and circumstances of the letting give at leastas clear a clue to the natural intentions of the parties as do the written words It is of course not theprovince of the court to make a new contract or to supply any material stipulations or conditions whichcontravene the agreements of the parties Kampf v Franklin Life Ins Co 33 NJ 36 (1960) WashingtonConstruction Co Inc v Spinella 8 NJ 212 (1951) City of Camden v South Jersey Port Commission 4NJ 357 (1950) McBride v Maryland Casualty Co 128 NJL 64 (E amp A 1942) Terms are to beimplied not because
they are just or reasonable but rather for the reason that the parties must have intended them and haveonly failed to express them or because they are necessary to give business efficacy to the contractas written or to give the contract the effect which the parties as fair and reasonable men presumablywould have agreed on if having in mind the possibility of the situation which has arisen they contractedexpressly in reference thereto See 12 Am Jur Contracts sec 239 14 Am Jur Covenants Conditionsand Restrictions sec 14 William Berland Realty Co v Hahne amp Co 26 NJSuper 477 487 (Ch1953) modified 29 NJSuper 316 (App Div 1954)
See also Silverstein v Keane 19 NJ 1 (1955) Cragmere Holding Corp v Socony Mobile Oil Co 65NJSuper 322 (App Div 1961)
[56 NJ 144]
So here the lease expressly described the leased premises as 4 rooms and bathapartment and restricted the use thereof for one purpose mdash dwelling Patently theeffect which the parties as fair and reasonable men presumably would have agreedon was that the premises were habitable and fit for living The very object of the lettingwas to furnish the defendant with quarters suitable for living purposes This is what thelandlord at least impliedly (if not expressly) represented he had available and what thetenant was seeking In a modern setting the landlord should in residential letting beheld to an implied covenant against latent defects which is another manner of sayinghabitability and livability fitness See Hyland v Parkside Investment Co Inc 10 NJMisc 1148 (Sup Ct 1932) It is a mere matter of semantics whether we designate thiscovenant one to repair or of habitability and livability fitness Actually it is a covenantthat at the inception of the lease there are no latent defects in facilities vital to the useof the premises for residential purposes because of faulty original construction ordeterioration from age or normal usage And further it is a covenant that these facilitieswill remain in usable condition during the entire term of the lease In performance ofthis covenant the landlord is required to maintain those facilities in a condition whichrenders the property livable
It is eminently fair and just to charge a landlord with the duty of warranting that a building or part thereofrented for residential purpose is fit for that purpose at the inception of the term and will remain so duringthe entire term Of course ancillary to such understanding it must be implied that he has further agreedto repair damage to vital facilities caused by ordinary wear and tear during said term Where damage hasbeen caused maliciously or by abnormal or unusual use the tenant is conversely liable for repair Thenature of vital facilities and the extent and type of maintenance and repair required is limited and
[56 NJ 145]
governed by the type of property rented and the amount of rent reserved Failure to somaintain the property would constitute a constructive eviction
It becomes necessary to consider the respective rights and duties which accompany such an impliedcovenant We must recognize that historically the landlords covenant to alter or repair premises and thetenants covenant to pay rent were generally regarded as independent covenants The landlords failureto perform did not entitle the tenant to make the repair and offset the cost thereof against future rent Itonly gave rise to a separate cause of action for breach of covenant Duncan Development Co v DuncanHardware Inc 34 NJSuper 293 at 298 (App Div 1955) cert denied 19 NJ 328 (1955) Stewart vChilds Co 86 NJL 648 (E amp A 1914) This result also eventuated from the application of the law ofreal estate rather than of contract The concept of mutually dependent promises was not originallyapplied to the ascertainment of whether covenants in leases were dependent or independent Howeverpresently we recognize that covenants are dependent or independent according to the intention of theparties and the good sense of the case Higgins v Whiting 102 NJL 279 (Sup Ct 1925) 3 Thompsonon Real Property sect 1115 (1959 Replacement)
In Higgins v Whiting supra the court said at pp 280 and 281 concerning the test of dependency ofexpress covenants
In 24 Cyc 918 it is said that covenants are to be construed as dependent or independent according tothe intention and meaning of the parties and the good sense of the case Technical words should giveway to such intention 7 RCL 1090 sect 7 So the rule is thus stated where the acts or covenants of theparties are concurrent and to be done or performed at the same time the covenants are dependent andneither party can maintain an action against the other without averring and proving performance on hispart 13 Corpus Juris 567
In the present case the covenant to pay rent and the covenant to heat the apartment are mutual anddependent In the modern
[56 NJ 146]
apartment house equipped for heating from a central plant entirely under the control ofthe landlord or his agent heat is one of the things for which the tenant pays under thename `rent
Our courts have on a case by case basis held various lease covenants and covenants to pay rent asdependent and under the guise of a constructive eviction have considered breach of the former as givingthe right to the tenant to remove from the premises and terminate his obligation to pay rent SeeMcCurdy v Wyckoff 73 NJL 368 (Sup Ct 1906) Weiler v Pancoast 71 NJL 414 (Sup Ct 1904)Higgins v Whiting 102 NJL 279 (Sup Ct 1925) Stevenson Stanoyevich Fund v Steinacher 125NJL 326 (Sup Ct 1940)
It is of little comfort to a tenant in these days of housing shortage to accord him the right upon aconstructive eviction to vacate the premises and end his obligation to pay rent Rather he should beaccorded the alternative remedy of terminating the cause of the constructive eviction where as here thecause is the failure to make reasonable repairs See Reste Realty Corporation v Cooper supra footnote1 53 NJ pp 462 463 This latter course of action is accompanied by the right to offset the cost of suchrepairs as are reasonable in the light of the value of the leasehold against the rent His pursuit of thelatter form of relief should of course be circumscribed by the aforementioned conditions
If therefore a landlord fails to make the repairs and replacements of vital facilities necessary to maintainthe premises in a livable condition for a period of time adequate to accomplish such repair andreplacements the tenant may cause the same to be done and deduct the cost thereof from future rentsThe tenants recourse to such self-help must be preceded by timely and adequate notice to the landlordof the faulty condition in order to accord him the opportunity to make the necessary replacement orrepair If the tenant is unable to give such notice after a reasonable attempt he may nonetheless
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
COMMENT
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
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Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
4 That three days notice in writing has been served by the person entitled to the rent on the personowing the same requiring payment or possession
And again in Schuyler v Trefren 26 NJL 213 (Sup Ct 1857) the court said
The proceeding is summary and the jurisdiction is special limited and statutory and every essential toits proper exercise must appear to have been complied with
In Vineland Shopping Center Inc v DeMarco 35 NJ 459 (1961) this Court said at p 464 in referenceto substantiating proof of the pleaded jurisdictional facts
The established principle is that the trial court had jurisdiction if there was evidence from which it couldfind a statutory basis for removal If that test is met the judgment must be affirmed even though it isotherwise infected with error
The jurisdictional issue ie the statutory basis for removal can be twice raised in a dispossess actionFirst by motion directed at the complaint for failure to accurately allege the necessary facts withparticularity Second on trial for failure to adduce adequate proof to corroborate the allegations of thecomplaint If the complaint contains adequate factual allegations of default the issue can be resolvedonly when proof has been adduced Failure to furnish either such allegations in the complaint or proof onthe trial is sufficient ground to warrant dismissal for lack of jurisdiction
As noted in Vineland Shopping Center Inc v DeMarco supra at p 464 our cases have hewed a lineseparating the jurisdictional issue from the meritorious issue Confusion arises from this jurisdictional-meritorious dichotomy by reason of the fact that the same proof is required and goes to the same crucialelement in each ie proof of the default in rent as alleged in the complaint Whatever
[56 NJ 139]
jurisdiction means in other settings here it uniquely connotes the existence of one ofthe factual situations delineated in NJSA 2A18-53 It follows that a finding by thejudge that there is a default as alleged by the landlord does not dispose of themeritorious issue alone It as well disposes of the jurisdictional issue
The jurisdictional issue of default encompasses the question of whether the amount of rent alleged tobe in default is due unpaid and owing not only whether it is due and unpaid The mere fact of thetenants failure to pay rent in full as provided in the lease is not in and of itself a sufficient fact to meetthe statutory jurisdictional requisite Thus a tenants evidence in substantiation of a defense that there isno default or that the default is not in the amount alleged by the landlord is admissible on thejurisdictional issue Consideration must be given not only to a legal defense but as well to an equitableexcuse for non-payment such as confession and avoidance which would relieve the tenant of the dutyof paying and hence make the unpaid rent in whole or part due but not owing and thus not in default
That the County District Court must accept any equitable issue offered to defeat an action within itsjurisdiction or to avoid a separate defense to such action was established by Vineland Shopping CenterInc v DeMarco supra p 469 See also Carteret Properties v Variety Donuts Inc 49 NJ 116 124(1967) This duty is imposed on the County District Court not only in connection with proof of caseswithin its jurisdiction but also on the issue of jurisdiction as well It follows that an equitable defense tothe proof of an alleged rent default in a landlord-tenant dispossess proceeding is permissible and facts insupport thereof admissible
There is no logical reason why a tenant who is successful in having a case removed to the SuperiorCourt under NJSA 2A18-60 shall have the benefit of equitable defenses to jurisdiction while a tenantwho is unsuccessful in
[56 NJ 140]
seeking to have his case removed from the County District Court to the Superior Courtshould be limited to legal defenses[1]
At any time before an action for the removal of a tenant comes on for trial either the landlord or personin possession may apply to the superior court which may if it deems it of sufficient importance orderthe cause transferred from the county district court to the superior court (Emphasis supplied)
The statute furnishes no guidelines for the solution of the question of what constitutes a case ofsufficient importance It is self-evident that every tenant removal is of importance to both the landlordand tenant It could be argued that every such case qualifies for removal to the Superior Court If adispossess action is not removed to the Superior Court appeal by a tenant from an adverse judgment isrestricted to the issue of jurisdiction NJSA 2A18-59 If the action is removed to the Superior Courtappeal is not so restricted Appeal is then available on meritorious grounds as well Vineland ShoppingCenter Inc v DeMarco supra We see no sound reason for any distinction between the right to appealfrom a District Court judgment and a Superior Court judgment for possession It might well be urged thatthere should be no difference between the scope of review from a District Court judgment and a SuperiorCourt judgment We are not however obliged to pass upon that problem in the matter sub judice
We hold therefore that equitable as well as legal defenses asserting payment or absolution frompayment in whole or part are available to a tenant in a dispossess action and must be considered by thecourt Denial of a motion by defendant directed at the complaint for failure to make adequate factualallegations or of a motion at the conclusion of the trial for failure to supply proof that the amount of rentalleged in the complaint is in default both going to the question of jurisdiction are each appealable
Insofar as Peters v Kelly 98 NJSuper 441 (App Div 1968) conflicts with the foregoing it is overruled
It becomes necessary to consider the merits of defendants equitable defense that the failure of thelandlord to repair the toilet constituted a breach of the covenant of habitability or quiet enjoyment andgave rise to defendants
[56 NJ 141]
entitlement to self-help permitting her to repair the toilet and offset the cost thereofagainst her rent We need not concern ourselves with the covenant of quiet enjoymentas will hereafter become apparent
We are here concerned with the lease of premises for residential purposes The lease provides
WITNESSETH that the said party of the first part hath let and by these presents doth grant demiseand to farm let unto the said property of the second part all that contains 4 rooms and bath apartmentsituated in the city and county of camden [sic] state [sic] of New Jersey known and designated as503-B Rand Street
nor use or permit any part thereof to be used for any other purpose than dwelling
As the lease contains no express covenant to repair we are obliged to determine whether there arisesan implied covenant however categorized which would require the landlord to make repairs
A lease was originally considered a conveyance of an interest in real estate Thus the duties andobligations of the parties implied as well as express were dealt with according to the law of propertyand not of the law of contracts In Michaels v Brookchester Inc 26 NJ 379 (1958) this Court said at p
Historically a lease was viewed as a sale of an interest in land The concept of caveat emptorapplicable to such sales seemed logically pertinent to leases of land There was neither an impliedcovenant of fitness for the intended use nor responsibility in the landlord to maintain the leasedpremises Bauer v 141-149 Cedar Lane Holding Co 24 NJ 139 145 130 A2d 833 (1957) Bolitho vMintz 106 NJL 449 148 A 737 (E amp A 1930) This principle suitable for the agrarian setting in whichit was conceived lagged behind changes in dwelling habits and economic realities 1 America Law ofProperty (1952) sect 378 p 347 Exceptions to the broad immunity inevitably developed
The guidelines employed to construe contracts have been modernly applied to the construction of leases3 Thompson
[56 NJ 142]
on Real Property 377 (1959) See also 6 Williston on Contracts 3d ed Jaeger sect 890Ap 592 (1962)
There is a clearly discernible tendency on the part of the courts to cast aside technicalities in theinterpretation of leases and to concentrate their attention as in the case of other contracts on theintention of the parties
In Pines v Perssion 14 Wis2d 590 111 NW2d 409 (Sup Ct Wis 1961) the court stated at p 412
Legislation and administrative rules such as the safeplace statute building codes and healthregulations all impose certain duties on a property owner with respect to the condition of his premisesThus the legislature has made a policy judgment mdash that it is socially (and politically) desirable to imposethese duties on a property owner mdash which has rendered the old common law rule obsolete To follow theold rule of no implied warranty of habitability in leases would in our opinion be inconsistent with thecurrent legislative policy concerning housing standards The need and social desirability of adequatehousing for people in this era of rapid population increases is too important to be rebuffed by thatobnoxious legal cliche caveat emptor Permitting landlords to rent `tumbledown houses is at least acontributing cause of such problems as urban blight juvenile delinquency and high property taxes forconscientious landowners
In Reste Realty Corporation v Cooper 53 NJ 444 (1969) this Court said at p 452
Moreover an awareness by legislatures of the inequality of bar gaining power between landlord andtenant in many cases and the need for tenant protection has produced remedial tenement house andmultiple dwelling statutes See eg NJSA 5513A-1 et seq and the regulations thereunder seegenerally Fuerstein and Shustack `Landlord and Tenant mdash The Statutory Duty to Repair 45 Ill L Rev205 (1950) Annotation 17 ALR 2d 704 (1951) It has come to be recognized that ordinarily the lesseedoes not have as much knowledge of the condition of the premises as the lessor Building coderequirements and violations are known or made known to the lessor not the lessee He is in a betterposition to know of latent defects structural and otherwise in a building which might go unnoticed by alessee who rarely has sufficient knowledge or expertise to see or to discover them A prospective lesseesuch as a small businessman cannot be expected to know if the plumbing or wiring systems areadequate or conform to local codes Nor should he be expected
[56 NJ 143]
to hire experts to advise him Ordinarily all this information should be consideredreadily available to the lessor who in turn can inform the prospective lessee Thesefactors have produced persuasive arguments for reevaluation of the caveat emptordoctrine and for imposition of an implied warranty that the premises are suitable for theleased purposes and conform to local codes and zoning laws
See also Lemle v Breeden 462 P2d 470 (Sup Ct Hawaii 1969)
A covenant in a lease can arise only by necessary implication from specific language of the lease orbecause it is indispensable to carry into effect the purpose of the lease In determining under contractlaw what covenants are implied the object which the parties had in view and intended to beaccomplished is of primary importance The subject matter and circumstances of the letting give at leastas clear a clue to the natural intentions of the parties as do the written words It is of course not theprovince of the court to make a new contract or to supply any material stipulations or conditions whichcontravene the agreements of the parties Kampf v Franklin Life Ins Co 33 NJ 36 (1960) WashingtonConstruction Co Inc v Spinella 8 NJ 212 (1951) City of Camden v South Jersey Port Commission 4NJ 357 (1950) McBride v Maryland Casualty Co 128 NJL 64 (E amp A 1942) Terms are to beimplied not because
they are just or reasonable but rather for the reason that the parties must have intended them and haveonly failed to express them or because they are necessary to give business efficacy to the contractas written or to give the contract the effect which the parties as fair and reasonable men presumablywould have agreed on if having in mind the possibility of the situation which has arisen they contractedexpressly in reference thereto See 12 Am Jur Contracts sec 239 14 Am Jur Covenants Conditionsand Restrictions sec 14 William Berland Realty Co v Hahne amp Co 26 NJSuper 477 487 (Ch1953) modified 29 NJSuper 316 (App Div 1954)
See also Silverstein v Keane 19 NJ 1 (1955) Cragmere Holding Corp v Socony Mobile Oil Co 65NJSuper 322 (App Div 1961)
[56 NJ 144]
So here the lease expressly described the leased premises as 4 rooms and bathapartment and restricted the use thereof for one purpose mdash dwelling Patently theeffect which the parties as fair and reasonable men presumably would have agreedon was that the premises were habitable and fit for living The very object of the lettingwas to furnish the defendant with quarters suitable for living purposes This is what thelandlord at least impliedly (if not expressly) represented he had available and what thetenant was seeking In a modern setting the landlord should in residential letting beheld to an implied covenant against latent defects which is another manner of sayinghabitability and livability fitness See Hyland v Parkside Investment Co Inc 10 NJMisc 1148 (Sup Ct 1932) It is a mere matter of semantics whether we designate thiscovenant one to repair or of habitability and livability fitness Actually it is a covenantthat at the inception of the lease there are no latent defects in facilities vital to the useof the premises for residential purposes because of faulty original construction ordeterioration from age or normal usage And further it is a covenant that these facilitieswill remain in usable condition during the entire term of the lease In performance ofthis covenant the landlord is required to maintain those facilities in a condition whichrenders the property livable
It is eminently fair and just to charge a landlord with the duty of warranting that a building or part thereofrented for residential purpose is fit for that purpose at the inception of the term and will remain so duringthe entire term Of course ancillary to such understanding it must be implied that he has further agreedto repair damage to vital facilities caused by ordinary wear and tear during said term Where damage hasbeen caused maliciously or by abnormal or unusual use the tenant is conversely liable for repair Thenature of vital facilities and the extent and type of maintenance and repair required is limited and
[56 NJ 145]
governed by the type of property rented and the amount of rent reserved Failure to somaintain the property would constitute a constructive eviction
It becomes necessary to consider the respective rights and duties which accompany such an impliedcovenant We must recognize that historically the landlords covenant to alter or repair premises and thetenants covenant to pay rent were generally regarded as independent covenants The landlords failureto perform did not entitle the tenant to make the repair and offset the cost thereof against future rent Itonly gave rise to a separate cause of action for breach of covenant Duncan Development Co v DuncanHardware Inc 34 NJSuper 293 at 298 (App Div 1955) cert denied 19 NJ 328 (1955) Stewart vChilds Co 86 NJL 648 (E amp A 1914) This result also eventuated from the application of the law ofreal estate rather than of contract The concept of mutually dependent promises was not originallyapplied to the ascertainment of whether covenants in leases were dependent or independent Howeverpresently we recognize that covenants are dependent or independent according to the intention of theparties and the good sense of the case Higgins v Whiting 102 NJL 279 (Sup Ct 1925) 3 Thompsonon Real Property sect 1115 (1959 Replacement)
In Higgins v Whiting supra the court said at pp 280 and 281 concerning the test of dependency ofexpress covenants
In 24 Cyc 918 it is said that covenants are to be construed as dependent or independent according tothe intention and meaning of the parties and the good sense of the case Technical words should giveway to such intention 7 RCL 1090 sect 7 So the rule is thus stated where the acts or covenants of theparties are concurrent and to be done or performed at the same time the covenants are dependent andneither party can maintain an action against the other without averring and proving performance on hispart 13 Corpus Juris 567
In the present case the covenant to pay rent and the covenant to heat the apartment are mutual anddependent In the modern
[56 NJ 146]
apartment house equipped for heating from a central plant entirely under the control ofthe landlord or his agent heat is one of the things for which the tenant pays under thename `rent
Our courts have on a case by case basis held various lease covenants and covenants to pay rent asdependent and under the guise of a constructive eviction have considered breach of the former as givingthe right to the tenant to remove from the premises and terminate his obligation to pay rent SeeMcCurdy v Wyckoff 73 NJL 368 (Sup Ct 1906) Weiler v Pancoast 71 NJL 414 (Sup Ct 1904)Higgins v Whiting 102 NJL 279 (Sup Ct 1925) Stevenson Stanoyevich Fund v Steinacher 125NJL 326 (Sup Ct 1940)
It is of little comfort to a tenant in these days of housing shortage to accord him the right upon aconstructive eviction to vacate the premises and end his obligation to pay rent Rather he should beaccorded the alternative remedy of terminating the cause of the constructive eviction where as here thecause is the failure to make reasonable repairs See Reste Realty Corporation v Cooper supra footnote1 53 NJ pp 462 463 This latter course of action is accompanied by the right to offset the cost of suchrepairs as are reasonable in the light of the value of the leasehold against the rent His pursuit of thelatter form of relief should of course be circumscribed by the aforementioned conditions
If therefore a landlord fails to make the repairs and replacements of vital facilities necessary to maintainthe premises in a livable condition for a period of time adequate to accomplish such repair andreplacements the tenant may cause the same to be done and deduct the cost thereof from future rentsThe tenants recourse to such self-help must be preceded by timely and adequate notice to the landlordof the faulty condition in order to accord him the opportunity to make the necessary replacement orrepair If the tenant is unable to give such notice after a reasonable attempt he may nonetheless
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
COMMENT
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
At any time before an action for the removal of a tenant comes on for trial either the landlord or personin possession may apply to the superior court which may if it deems it of sufficient importance orderthe cause transferred from the county district court to the superior court (Emphasis supplied)
The statute furnishes no guidelines for the solution of the question of what constitutes a case ofsufficient importance It is self-evident that every tenant removal is of importance to both the landlordand tenant It could be argued that every such case qualifies for removal to the Superior Court If adispossess action is not removed to the Superior Court appeal by a tenant from an adverse judgment isrestricted to the issue of jurisdiction NJSA 2A18-59 If the action is removed to the Superior Courtappeal is not so restricted Appeal is then available on meritorious grounds as well Vineland ShoppingCenter Inc v DeMarco supra We see no sound reason for any distinction between the right to appealfrom a District Court judgment and a Superior Court judgment for possession It might well be urged thatthere should be no difference between the scope of review from a District Court judgment and a SuperiorCourt judgment We are not however obliged to pass upon that problem in the matter sub judice
We hold therefore that equitable as well as legal defenses asserting payment or absolution frompayment in whole or part are available to a tenant in a dispossess action and must be considered by thecourt Denial of a motion by defendant directed at the complaint for failure to make adequate factualallegations or of a motion at the conclusion of the trial for failure to supply proof that the amount of rentalleged in the complaint is in default both going to the question of jurisdiction are each appealable
Insofar as Peters v Kelly 98 NJSuper 441 (App Div 1968) conflicts with the foregoing it is overruled
It becomes necessary to consider the merits of defendants equitable defense that the failure of thelandlord to repair the toilet constituted a breach of the covenant of habitability or quiet enjoyment andgave rise to defendants
[56 NJ 141]
entitlement to self-help permitting her to repair the toilet and offset the cost thereofagainst her rent We need not concern ourselves with the covenant of quiet enjoymentas will hereafter become apparent
We are here concerned with the lease of premises for residential purposes The lease provides
WITNESSETH that the said party of the first part hath let and by these presents doth grant demiseand to farm let unto the said property of the second part all that contains 4 rooms and bath apartmentsituated in the city and county of camden [sic] state [sic] of New Jersey known and designated as503-B Rand Street
nor use or permit any part thereof to be used for any other purpose than dwelling
As the lease contains no express covenant to repair we are obliged to determine whether there arisesan implied covenant however categorized which would require the landlord to make repairs
A lease was originally considered a conveyance of an interest in real estate Thus the duties andobligations of the parties implied as well as express were dealt with according to the law of propertyand not of the law of contracts In Michaels v Brookchester Inc 26 NJ 379 (1958) this Court said at p
Historically a lease was viewed as a sale of an interest in land The concept of caveat emptorapplicable to such sales seemed logically pertinent to leases of land There was neither an impliedcovenant of fitness for the intended use nor responsibility in the landlord to maintain the leasedpremises Bauer v 141-149 Cedar Lane Holding Co 24 NJ 139 145 130 A2d 833 (1957) Bolitho vMintz 106 NJL 449 148 A 737 (E amp A 1930) This principle suitable for the agrarian setting in whichit was conceived lagged behind changes in dwelling habits and economic realities 1 America Law ofProperty (1952) sect 378 p 347 Exceptions to the broad immunity inevitably developed
The guidelines employed to construe contracts have been modernly applied to the construction of leases3 Thompson
[56 NJ 142]
on Real Property 377 (1959) See also 6 Williston on Contracts 3d ed Jaeger sect 890Ap 592 (1962)
There is a clearly discernible tendency on the part of the courts to cast aside technicalities in theinterpretation of leases and to concentrate their attention as in the case of other contracts on theintention of the parties
In Pines v Perssion 14 Wis2d 590 111 NW2d 409 (Sup Ct Wis 1961) the court stated at p 412
Legislation and administrative rules such as the safeplace statute building codes and healthregulations all impose certain duties on a property owner with respect to the condition of his premisesThus the legislature has made a policy judgment mdash that it is socially (and politically) desirable to imposethese duties on a property owner mdash which has rendered the old common law rule obsolete To follow theold rule of no implied warranty of habitability in leases would in our opinion be inconsistent with thecurrent legislative policy concerning housing standards The need and social desirability of adequatehousing for people in this era of rapid population increases is too important to be rebuffed by thatobnoxious legal cliche caveat emptor Permitting landlords to rent `tumbledown houses is at least acontributing cause of such problems as urban blight juvenile delinquency and high property taxes forconscientious landowners
In Reste Realty Corporation v Cooper 53 NJ 444 (1969) this Court said at p 452
Moreover an awareness by legislatures of the inequality of bar gaining power between landlord andtenant in many cases and the need for tenant protection has produced remedial tenement house andmultiple dwelling statutes See eg NJSA 5513A-1 et seq and the regulations thereunder seegenerally Fuerstein and Shustack `Landlord and Tenant mdash The Statutory Duty to Repair 45 Ill L Rev205 (1950) Annotation 17 ALR 2d 704 (1951) It has come to be recognized that ordinarily the lesseedoes not have as much knowledge of the condition of the premises as the lessor Building coderequirements and violations are known or made known to the lessor not the lessee He is in a betterposition to know of latent defects structural and otherwise in a building which might go unnoticed by alessee who rarely has sufficient knowledge or expertise to see or to discover them A prospective lesseesuch as a small businessman cannot be expected to know if the plumbing or wiring systems areadequate or conform to local codes Nor should he be expected
[56 NJ 143]
to hire experts to advise him Ordinarily all this information should be consideredreadily available to the lessor who in turn can inform the prospective lessee Thesefactors have produced persuasive arguments for reevaluation of the caveat emptordoctrine and for imposition of an implied warranty that the premises are suitable for theleased purposes and conform to local codes and zoning laws
See also Lemle v Breeden 462 P2d 470 (Sup Ct Hawaii 1969)
A covenant in a lease can arise only by necessary implication from specific language of the lease orbecause it is indispensable to carry into effect the purpose of the lease In determining under contractlaw what covenants are implied the object which the parties had in view and intended to beaccomplished is of primary importance The subject matter and circumstances of the letting give at leastas clear a clue to the natural intentions of the parties as do the written words It is of course not theprovince of the court to make a new contract or to supply any material stipulations or conditions whichcontravene the agreements of the parties Kampf v Franklin Life Ins Co 33 NJ 36 (1960) WashingtonConstruction Co Inc v Spinella 8 NJ 212 (1951) City of Camden v South Jersey Port Commission 4NJ 357 (1950) McBride v Maryland Casualty Co 128 NJL 64 (E amp A 1942) Terms are to beimplied not because
they are just or reasonable but rather for the reason that the parties must have intended them and haveonly failed to express them or because they are necessary to give business efficacy to the contractas written or to give the contract the effect which the parties as fair and reasonable men presumablywould have agreed on if having in mind the possibility of the situation which has arisen they contractedexpressly in reference thereto See 12 Am Jur Contracts sec 239 14 Am Jur Covenants Conditionsand Restrictions sec 14 William Berland Realty Co v Hahne amp Co 26 NJSuper 477 487 (Ch1953) modified 29 NJSuper 316 (App Div 1954)
See also Silverstein v Keane 19 NJ 1 (1955) Cragmere Holding Corp v Socony Mobile Oil Co 65NJSuper 322 (App Div 1961)
[56 NJ 144]
So here the lease expressly described the leased premises as 4 rooms and bathapartment and restricted the use thereof for one purpose mdash dwelling Patently theeffect which the parties as fair and reasonable men presumably would have agreedon was that the premises were habitable and fit for living The very object of the lettingwas to furnish the defendant with quarters suitable for living purposes This is what thelandlord at least impliedly (if not expressly) represented he had available and what thetenant was seeking In a modern setting the landlord should in residential letting beheld to an implied covenant against latent defects which is another manner of sayinghabitability and livability fitness See Hyland v Parkside Investment Co Inc 10 NJMisc 1148 (Sup Ct 1932) It is a mere matter of semantics whether we designate thiscovenant one to repair or of habitability and livability fitness Actually it is a covenantthat at the inception of the lease there are no latent defects in facilities vital to the useof the premises for residential purposes because of faulty original construction ordeterioration from age or normal usage And further it is a covenant that these facilitieswill remain in usable condition during the entire term of the lease In performance ofthis covenant the landlord is required to maintain those facilities in a condition whichrenders the property livable
It is eminently fair and just to charge a landlord with the duty of warranting that a building or part thereofrented for residential purpose is fit for that purpose at the inception of the term and will remain so duringthe entire term Of course ancillary to such understanding it must be implied that he has further agreedto repair damage to vital facilities caused by ordinary wear and tear during said term Where damage hasbeen caused maliciously or by abnormal or unusual use the tenant is conversely liable for repair Thenature of vital facilities and the extent and type of maintenance and repair required is limited and
[56 NJ 145]
governed by the type of property rented and the amount of rent reserved Failure to somaintain the property would constitute a constructive eviction
It becomes necessary to consider the respective rights and duties which accompany such an impliedcovenant We must recognize that historically the landlords covenant to alter or repair premises and thetenants covenant to pay rent were generally regarded as independent covenants The landlords failureto perform did not entitle the tenant to make the repair and offset the cost thereof against future rent Itonly gave rise to a separate cause of action for breach of covenant Duncan Development Co v DuncanHardware Inc 34 NJSuper 293 at 298 (App Div 1955) cert denied 19 NJ 328 (1955) Stewart vChilds Co 86 NJL 648 (E amp A 1914) This result also eventuated from the application of the law ofreal estate rather than of contract The concept of mutually dependent promises was not originallyapplied to the ascertainment of whether covenants in leases were dependent or independent Howeverpresently we recognize that covenants are dependent or independent according to the intention of theparties and the good sense of the case Higgins v Whiting 102 NJL 279 (Sup Ct 1925) 3 Thompsonon Real Property sect 1115 (1959 Replacement)
In Higgins v Whiting supra the court said at pp 280 and 281 concerning the test of dependency ofexpress covenants
In 24 Cyc 918 it is said that covenants are to be construed as dependent or independent according tothe intention and meaning of the parties and the good sense of the case Technical words should giveway to such intention 7 RCL 1090 sect 7 So the rule is thus stated where the acts or covenants of theparties are concurrent and to be done or performed at the same time the covenants are dependent andneither party can maintain an action against the other without averring and proving performance on hispart 13 Corpus Juris 567
In the present case the covenant to pay rent and the covenant to heat the apartment are mutual anddependent In the modern
[56 NJ 146]
apartment house equipped for heating from a central plant entirely under the control ofthe landlord or his agent heat is one of the things for which the tenant pays under thename `rent
Our courts have on a case by case basis held various lease covenants and covenants to pay rent asdependent and under the guise of a constructive eviction have considered breach of the former as givingthe right to the tenant to remove from the premises and terminate his obligation to pay rent SeeMcCurdy v Wyckoff 73 NJL 368 (Sup Ct 1906) Weiler v Pancoast 71 NJL 414 (Sup Ct 1904)Higgins v Whiting 102 NJL 279 (Sup Ct 1925) Stevenson Stanoyevich Fund v Steinacher 125NJL 326 (Sup Ct 1940)
It is of little comfort to a tenant in these days of housing shortage to accord him the right upon aconstructive eviction to vacate the premises and end his obligation to pay rent Rather he should beaccorded the alternative remedy of terminating the cause of the constructive eviction where as here thecause is the failure to make reasonable repairs See Reste Realty Corporation v Cooper supra footnote1 53 NJ pp 462 463 This latter course of action is accompanied by the right to offset the cost of suchrepairs as are reasonable in the light of the value of the leasehold against the rent His pursuit of thelatter form of relief should of course be circumscribed by the aforementioned conditions
If therefore a landlord fails to make the repairs and replacements of vital facilities necessary to maintainthe premises in a livable condition for a period of time adequate to accomplish such repair andreplacements the tenant may cause the same to be done and deduct the cost thereof from future rentsThe tenants recourse to such self-help must be preceded by timely and adequate notice to the landlordof the faulty condition in order to accord him the opportunity to make the necessary replacement orrepair If the tenant is unable to give such notice after a reasonable attempt he may nonetheless
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
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Property Owners Association
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
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Summons and complaint
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
Historically a lease was viewed as a sale of an interest in land The concept of caveat emptorapplicable to such sales seemed logically pertinent to leases of land There was neither an impliedcovenant of fitness for the intended use nor responsibility in the landlord to maintain the leasedpremises Bauer v 141-149 Cedar Lane Holding Co 24 NJ 139 145 130 A2d 833 (1957) Bolitho vMintz 106 NJL 449 148 A 737 (E amp A 1930) This principle suitable for the agrarian setting in whichit was conceived lagged behind changes in dwelling habits and economic realities 1 America Law ofProperty (1952) sect 378 p 347 Exceptions to the broad immunity inevitably developed
The guidelines employed to construe contracts have been modernly applied to the construction of leases3 Thompson
[56 NJ 142]
on Real Property 377 (1959) See also 6 Williston on Contracts 3d ed Jaeger sect 890Ap 592 (1962)
There is a clearly discernible tendency on the part of the courts to cast aside technicalities in theinterpretation of leases and to concentrate their attention as in the case of other contracts on theintention of the parties
In Pines v Perssion 14 Wis2d 590 111 NW2d 409 (Sup Ct Wis 1961) the court stated at p 412
Legislation and administrative rules such as the safeplace statute building codes and healthregulations all impose certain duties on a property owner with respect to the condition of his premisesThus the legislature has made a policy judgment mdash that it is socially (and politically) desirable to imposethese duties on a property owner mdash which has rendered the old common law rule obsolete To follow theold rule of no implied warranty of habitability in leases would in our opinion be inconsistent with thecurrent legislative policy concerning housing standards The need and social desirability of adequatehousing for people in this era of rapid population increases is too important to be rebuffed by thatobnoxious legal cliche caveat emptor Permitting landlords to rent `tumbledown houses is at least acontributing cause of such problems as urban blight juvenile delinquency and high property taxes forconscientious landowners
In Reste Realty Corporation v Cooper 53 NJ 444 (1969) this Court said at p 452
Moreover an awareness by legislatures of the inequality of bar gaining power between landlord andtenant in many cases and the need for tenant protection has produced remedial tenement house andmultiple dwelling statutes See eg NJSA 5513A-1 et seq and the regulations thereunder seegenerally Fuerstein and Shustack `Landlord and Tenant mdash The Statutory Duty to Repair 45 Ill L Rev205 (1950) Annotation 17 ALR 2d 704 (1951) It has come to be recognized that ordinarily the lesseedoes not have as much knowledge of the condition of the premises as the lessor Building coderequirements and violations are known or made known to the lessor not the lessee He is in a betterposition to know of latent defects structural and otherwise in a building which might go unnoticed by alessee who rarely has sufficient knowledge or expertise to see or to discover them A prospective lesseesuch as a small businessman cannot be expected to know if the plumbing or wiring systems areadequate or conform to local codes Nor should he be expected
[56 NJ 143]
to hire experts to advise him Ordinarily all this information should be consideredreadily available to the lessor who in turn can inform the prospective lessee Thesefactors have produced persuasive arguments for reevaluation of the caveat emptordoctrine and for imposition of an implied warranty that the premises are suitable for theleased purposes and conform to local codes and zoning laws
See also Lemle v Breeden 462 P2d 470 (Sup Ct Hawaii 1969)
A covenant in a lease can arise only by necessary implication from specific language of the lease orbecause it is indispensable to carry into effect the purpose of the lease In determining under contractlaw what covenants are implied the object which the parties had in view and intended to beaccomplished is of primary importance The subject matter and circumstances of the letting give at leastas clear a clue to the natural intentions of the parties as do the written words It is of course not theprovince of the court to make a new contract or to supply any material stipulations or conditions whichcontravene the agreements of the parties Kampf v Franklin Life Ins Co 33 NJ 36 (1960) WashingtonConstruction Co Inc v Spinella 8 NJ 212 (1951) City of Camden v South Jersey Port Commission 4NJ 357 (1950) McBride v Maryland Casualty Co 128 NJL 64 (E amp A 1942) Terms are to beimplied not because
they are just or reasonable but rather for the reason that the parties must have intended them and haveonly failed to express them or because they are necessary to give business efficacy to the contractas written or to give the contract the effect which the parties as fair and reasonable men presumablywould have agreed on if having in mind the possibility of the situation which has arisen they contractedexpressly in reference thereto See 12 Am Jur Contracts sec 239 14 Am Jur Covenants Conditionsand Restrictions sec 14 William Berland Realty Co v Hahne amp Co 26 NJSuper 477 487 (Ch1953) modified 29 NJSuper 316 (App Div 1954)
See also Silverstein v Keane 19 NJ 1 (1955) Cragmere Holding Corp v Socony Mobile Oil Co 65NJSuper 322 (App Div 1961)
[56 NJ 144]
So here the lease expressly described the leased premises as 4 rooms and bathapartment and restricted the use thereof for one purpose mdash dwelling Patently theeffect which the parties as fair and reasonable men presumably would have agreedon was that the premises were habitable and fit for living The very object of the lettingwas to furnish the defendant with quarters suitable for living purposes This is what thelandlord at least impliedly (if not expressly) represented he had available and what thetenant was seeking In a modern setting the landlord should in residential letting beheld to an implied covenant against latent defects which is another manner of sayinghabitability and livability fitness See Hyland v Parkside Investment Co Inc 10 NJMisc 1148 (Sup Ct 1932) It is a mere matter of semantics whether we designate thiscovenant one to repair or of habitability and livability fitness Actually it is a covenantthat at the inception of the lease there are no latent defects in facilities vital to the useof the premises for residential purposes because of faulty original construction ordeterioration from age or normal usage And further it is a covenant that these facilitieswill remain in usable condition during the entire term of the lease In performance ofthis covenant the landlord is required to maintain those facilities in a condition whichrenders the property livable
It is eminently fair and just to charge a landlord with the duty of warranting that a building or part thereofrented for residential purpose is fit for that purpose at the inception of the term and will remain so duringthe entire term Of course ancillary to such understanding it must be implied that he has further agreedto repair damage to vital facilities caused by ordinary wear and tear during said term Where damage hasbeen caused maliciously or by abnormal or unusual use the tenant is conversely liable for repair Thenature of vital facilities and the extent and type of maintenance and repair required is limited and
[56 NJ 145]
governed by the type of property rented and the amount of rent reserved Failure to somaintain the property would constitute a constructive eviction
It becomes necessary to consider the respective rights and duties which accompany such an impliedcovenant We must recognize that historically the landlords covenant to alter or repair premises and thetenants covenant to pay rent were generally regarded as independent covenants The landlords failureto perform did not entitle the tenant to make the repair and offset the cost thereof against future rent Itonly gave rise to a separate cause of action for breach of covenant Duncan Development Co v DuncanHardware Inc 34 NJSuper 293 at 298 (App Div 1955) cert denied 19 NJ 328 (1955) Stewart vChilds Co 86 NJL 648 (E amp A 1914) This result also eventuated from the application of the law ofreal estate rather than of contract The concept of mutually dependent promises was not originallyapplied to the ascertainment of whether covenants in leases were dependent or independent Howeverpresently we recognize that covenants are dependent or independent according to the intention of theparties and the good sense of the case Higgins v Whiting 102 NJL 279 (Sup Ct 1925) 3 Thompsonon Real Property sect 1115 (1959 Replacement)
In Higgins v Whiting supra the court said at pp 280 and 281 concerning the test of dependency ofexpress covenants
In 24 Cyc 918 it is said that covenants are to be construed as dependent or independent according tothe intention and meaning of the parties and the good sense of the case Technical words should giveway to such intention 7 RCL 1090 sect 7 So the rule is thus stated where the acts or covenants of theparties are concurrent and to be done or performed at the same time the covenants are dependent andneither party can maintain an action against the other without averring and proving performance on hispart 13 Corpus Juris 567
In the present case the covenant to pay rent and the covenant to heat the apartment are mutual anddependent In the modern
[56 NJ 146]
apartment house equipped for heating from a central plant entirely under the control ofthe landlord or his agent heat is one of the things for which the tenant pays under thename `rent
Our courts have on a case by case basis held various lease covenants and covenants to pay rent asdependent and under the guise of a constructive eviction have considered breach of the former as givingthe right to the tenant to remove from the premises and terminate his obligation to pay rent SeeMcCurdy v Wyckoff 73 NJL 368 (Sup Ct 1906) Weiler v Pancoast 71 NJL 414 (Sup Ct 1904)Higgins v Whiting 102 NJL 279 (Sup Ct 1925) Stevenson Stanoyevich Fund v Steinacher 125NJL 326 (Sup Ct 1940)
It is of little comfort to a tenant in these days of housing shortage to accord him the right upon aconstructive eviction to vacate the premises and end his obligation to pay rent Rather he should beaccorded the alternative remedy of terminating the cause of the constructive eviction where as here thecause is the failure to make reasonable repairs See Reste Realty Corporation v Cooper supra footnote1 53 NJ pp 462 463 This latter course of action is accompanied by the right to offset the cost of suchrepairs as are reasonable in the light of the value of the leasehold against the rent His pursuit of thelatter form of relief should of course be circumscribed by the aforementioned conditions
If therefore a landlord fails to make the repairs and replacements of vital facilities necessary to maintainthe premises in a livable condition for a period of time adequate to accomplish such repair andreplacements the tenant may cause the same to be done and deduct the cost thereof from future rentsThe tenants recourse to such self-help must be preceded by timely and adequate notice to the landlordof the faulty condition in order to accord him the opportunity to make the necessary replacement orrepair If the tenant is unable to give such notice after a reasonable attempt he may nonetheless
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
COMMENT
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
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New Jersey Apartment Association
Property Owners Association
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
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Notice Requirements chart
Summons and complaint
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
See also Lemle v Breeden 462 P2d 470 (Sup Ct Hawaii 1969)
A covenant in a lease can arise only by necessary implication from specific language of the lease orbecause it is indispensable to carry into effect the purpose of the lease In determining under contractlaw what covenants are implied the object which the parties had in view and intended to beaccomplished is of primary importance The subject matter and circumstances of the letting give at leastas clear a clue to the natural intentions of the parties as do the written words It is of course not theprovince of the court to make a new contract or to supply any material stipulations or conditions whichcontravene the agreements of the parties Kampf v Franklin Life Ins Co 33 NJ 36 (1960) WashingtonConstruction Co Inc v Spinella 8 NJ 212 (1951) City of Camden v South Jersey Port Commission 4NJ 357 (1950) McBride v Maryland Casualty Co 128 NJL 64 (E amp A 1942) Terms are to beimplied not because
they are just or reasonable but rather for the reason that the parties must have intended them and haveonly failed to express them or because they are necessary to give business efficacy to the contractas written or to give the contract the effect which the parties as fair and reasonable men presumablywould have agreed on if having in mind the possibility of the situation which has arisen they contractedexpressly in reference thereto See 12 Am Jur Contracts sec 239 14 Am Jur Covenants Conditionsand Restrictions sec 14 William Berland Realty Co v Hahne amp Co 26 NJSuper 477 487 (Ch1953) modified 29 NJSuper 316 (App Div 1954)
See also Silverstein v Keane 19 NJ 1 (1955) Cragmere Holding Corp v Socony Mobile Oil Co 65NJSuper 322 (App Div 1961)
[56 NJ 144]
So here the lease expressly described the leased premises as 4 rooms and bathapartment and restricted the use thereof for one purpose mdash dwelling Patently theeffect which the parties as fair and reasonable men presumably would have agreedon was that the premises were habitable and fit for living The very object of the lettingwas to furnish the defendant with quarters suitable for living purposes This is what thelandlord at least impliedly (if not expressly) represented he had available and what thetenant was seeking In a modern setting the landlord should in residential letting beheld to an implied covenant against latent defects which is another manner of sayinghabitability and livability fitness See Hyland v Parkside Investment Co Inc 10 NJMisc 1148 (Sup Ct 1932) It is a mere matter of semantics whether we designate thiscovenant one to repair or of habitability and livability fitness Actually it is a covenantthat at the inception of the lease there are no latent defects in facilities vital to the useof the premises for residential purposes because of faulty original construction ordeterioration from age or normal usage And further it is a covenant that these facilitieswill remain in usable condition during the entire term of the lease In performance ofthis covenant the landlord is required to maintain those facilities in a condition whichrenders the property livable
It is eminently fair and just to charge a landlord with the duty of warranting that a building or part thereofrented for residential purpose is fit for that purpose at the inception of the term and will remain so duringthe entire term Of course ancillary to such understanding it must be implied that he has further agreedto repair damage to vital facilities caused by ordinary wear and tear during said term Where damage hasbeen caused maliciously or by abnormal or unusual use the tenant is conversely liable for repair Thenature of vital facilities and the extent and type of maintenance and repair required is limited and
[56 NJ 145]
governed by the type of property rented and the amount of rent reserved Failure to somaintain the property would constitute a constructive eviction
It becomes necessary to consider the respective rights and duties which accompany such an impliedcovenant We must recognize that historically the landlords covenant to alter or repair premises and thetenants covenant to pay rent were generally regarded as independent covenants The landlords failureto perform did not entitle the tenant to make the repair and offset the cost thereof against future rent Itonly gave rise to a separate cause of action for breach of covenant Duncan Development Co v DuncanHardware Inc 34 NJSuper 293 at 298 (App Div 1955) cert denied 19 NJ 328 (1955) Stewart vChilds Co 86 NJL 648 (E amp A 1914) This result also eventuated from the application of the law ofreal estate rather than of contract The concept of mutually dependent promises was not originallyapplied to the ascertainment of whether covenants in leases were dependent or independent Howeverpresently we recognize that covenants are dependent or independent according to the intention of theparties and the good sense of the case Higgins v Whiting 102 NJL 279 (Sup Ct 1925) 3 Thompsonon Real Property sect 1115 (1959 Replacement)
In Higgins v Whiting supra the court said at pp 280 and 281 concerning the test of dependency ofexpress covenants
In 24 Cyc 918 it is said that covenants are to be construed as dependent or independent according tothe intention and meaning of the parties and the good sense of the case Technical words should giveway to such intention 7 RCL 1090 sect 7 So the rule is thus stated where the acts or covenants of theparties are concurrent and to be done or performed at the same time the covenants are dependent andneither party can maintain an action against the other without averring and proving performance on hispart 13 Corpus Juris 567
In the present case the covenant to pay rent and the covenant to heat the apartment are mutual anddependent In the modern
[56 NJ 146]
apartment house equipped for heating from a central plant entirely under the control ofthe landlord or his agent heat is one of the things for which the tenant pays under thename `rent
Our courts have on a case by case basis held various lease covenants and covenants to pay rent asdependent and under the guise of a constructive eviction have considered breach of the former as givingthe right to the tenant to remove from the premises and terminate his obligation to pay rent SeeMcCurdy v Wyckoff 73 NJL 368 (Sup Ct 1906) Weiler v Pancoast 71 NJL 414 (Sup Ct 1904)Higgins v Whiting 102 NJL 279 (Sup Ct 1925) Stevenson Stanoyevich Fund v Steinacher 125NJL 326 (Sup Ct 1940)
It is of little comfort to a tenant in these days of housing shortage to accord him the right upon aconstructive eviction to vacate the premises and end his obligation to pay rent Rather he should beaccorded the alternative remedy of terminating the cause of the constructive eviction where as here thecause is the failure to make reasonable repairs See Reste Realty Corporation v Cooper supra footnote1 53 NJ pp 462 463 This latter course of action is accompanied by the right to offset the cost of suchrepairs as are reasonable in the light of the value of the leasehold against the rent His pursuit of thelatter form of relief should of course be circumscribed by the aforementioned conditions
If therefore a landlord fails to make the repairs and replacements of vital facilities necessary to maintainthe premises in a livable condition for a period of time adequate to accomplish such repair andreplacements the tenant may cause the same to be done and deduct the cost thereof from future rentsThe tenants recourse to such self-help must be preceded by timely and adequate notice to the landlordof the faulty condition in order to accord him the opportunity to make the necessary replacement orrepair If the tenant is unable to give such notice after a reasonable attempt he may nonetheless
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
COMMENT
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
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owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
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Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
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judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
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of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
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limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
It becomes necessary to consider the respective rights and duties which accompany such an impliedcovenant We must recognize that historically the landlords covenant to alter or repair premises and thetenants covenant to pay rent were generally regarded as independent covenants The landlords failureto perform did not entitle the tenant to make the repair and offset the cost thereof against future rent Itonly gave rise to a separate cause of action for breach of covenant Duncan Development Co v DuncanHardware Inc 34 NJSuper 293 at 298 (App Div 1955) cert denied 19 NJ 328 (1955) Stewart vChilds Co 86 NJL 648 (E amp A 1914) This result also eventuated from the application of the law ofreal estate rather than of contract The concept of mutually dependent promises was not originallyapplied to the ascertainment of whether covenants in leases were dependent or independent Howeverpresently we recognize that covenants are dependent or independent according to the intention of theparties and the good sense of the case Higgins v Whiting 102 NJL 279 (Sup Ct 1925) 3 Thompsonon Real Property sect 1115 (1959 Replacement)
In Higgins v Whiting supra the court said at pp 280 and 281 concerning the test of dependency ofexpress covenants
In 24 Cyc 918 it is said that covenants are to be construed as dependent or independent according tothe intention and meaning of the parties and the good sense of the case Technical words should giveway to such intention 7 RCL 1090 sect 7 So the rule is thus stated where the acts or covenants of theparties are concurrent and to be done or performed at the same time the covenants are dependent andneither party can maintain an action against the other without averring and proving performance on hispart 13 Corpus Juris 567
In the present case the covenant to pay rent and the covenant to heat the apartment are mutual anddependent In the modern
[56 NJ 146]
apartment house equipped for heating from a central plant entirely under the control ofthe landlord or his agent heat is one of the things for which the tenant pays under thename `rent
Our courts have on a case by case basis held various lease covenants and covenants to pay rent asdependent and under the guise of a constructive eviction have considered breach of the former as givingthe right to the tenant to remove from the premises and terminate his obligation to pay rent SeeMcCurdy v Wyckoff 73 NJL 368 (Sup Ct 1906) Weiler v Pancoast 71 NJL 414 (Sup Ct 1904)Higgins v Whiting 102 NJL 279 (Sup Ct 1925) Stevenson Stanoyevich Fund v Steinacher 125NJL 326 (Sup Ct 1940)
It is of little comfort to a tenant in these days of housing shortage to accord him the right upon aconstructive eviction to vacate the premises and end his obligation to pay rent Rather he should beaccorded the alternative remedy of terminating the cause of the constructive eviction where as here thecause is the failure to make reasonable repairs See Reste Realty Corporation v Cooper supra footnote1 53 NJ pp 462 463 This latter course of action is accompanied by the right to offset the cost of suchrepairs as are reasonable in the light of the value of the leasehold against the rent His pursuit of thelatter form of relief should of course be circumscribed by the aforementioned conditions
If therefore a landlord fails to make the repairs and replacements of vital facilities necessary to maintainthe premises in a livable condition for a period of time adequate to accomplish such repair andreplacements the tenant may cause the same to be done and deduct the cost thereof from future rentsThe tenants recourse to such self-help must be preceded by timely and adequate notice to the landlordof the faulty condition in order to accord him the opportunity to make the necessary replacement orrepair If the tenant is unable to give such notice after a reasonable attempt he may nonetheless
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
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Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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MARINI v IRELAND _ Leaglecom
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BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
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proceed to repair or replace This does not mean[56 NJ 147]
that the tenant is relieved from the payment of rent so long as the landlord fails torepair The tenant has only the alternative remedies of making the repairs or removingfrom the premises upon such a constructive eviction
We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossesscases and thus increase the burden of the judiciary By way of warning however it should be noted thatthe foregoing does not constitute an invitation to obstruct the recovery of possession by a landlordlegitimately entitled thereto It is therefore suggested that if the trial of the matter is delayed thedefendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if heprevails Also an application for a stay of an order of removal on appeal should be critically analyzedand not automatically granted
In the light of the foregoing we find it unnecessary to pass on defendants other grounds of appeal
Reversed and remanded for trial in accordance with the above
For reversal and remandment mdash Chief Justice WEINTRAUB and Justices JACOBS FRANCISPROCTOR HALL SCHETTINO and HANEMAN mdash 7
For affirmance mdash None
COMMENT
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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BERZITO v GAMBINO
LILLIAS BERZITO PLAINTIFF-APPELLANT v VINCENT GAMBINODEFENDANT-RESPONDENT
The opinion of the Court was delivered by MOUNTAIN J
This case arises as the result of a dispute between a landlord and a tenant It presents issues notpreviously passed upon by this Court
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court 114NJSuper 124 (1971) but that decision was reversed by the Appellate Division 119 NJSuper 332(1972) We granted certification 62 NJ 67 (1972)
[63 NJ 463]
The opinions in the courts below reveal the factual situation which we will brieflysummarize here In September 1968 the plaintiff rented from the defendant thesecond-floor four-room furnished apartment at 608 Montgomery Street in Elizabeth foroccupancy for herself and three minor children There was no written lease the rentalfor the apartment was fixed at $35 a week with all utilities supplied Plaintiff testifiedthat at the time the terms of the arrangement were agreed upon the apartment was in adeplorable condition but the defendant promised he would make the premises livableand agreed to make certain specific repairs The trial court found that theserepresentations were in fact made 114 NJ Super at 129 and the Appellate Divisionaccepted this finding 119 NJ Super at 335 as do we
Testimony was submitted to the trial court that at the time of the letting screens and storm windowswere either broken or missing a number of windows were boarded up where the panes had beenbroken several radiators were not to be found there were holes in the floors and wall plaster wasfalling several electric fixtures were inoperable there was a sewage backup in the cellar and thepremises were infested with roaches and rodents Much of the furniture was found unfit for use and was
View Case Cited Cases Citing Case
63 NJ 460 (1973)308 A2d 17
The Supreme Court of New JerseyDecided July 26 1973
Mr Nicholas J Schuldt argued the cause for appellant (Mr David Einhorn Union County Legal ServicesCorporation attorney Mr Schuldt of counsel Mr Einhorn on the brief)Mr Joseph J Triarsi argued the cause for respondent (Messrs Pisano and Triarsi attorneys Mr Triarsiof counsel)Mr Richard E Blumberg Newark-Essex Joint Law Reform Project argued the cause on the brief forAmicus Curiae New Jersey Tenants Organization
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
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limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
relegated to the basement Plaintiff herself replaced the furniture as became necessary During wintermonths there was sometimes no heat and at all times insufficient heat
In addition to concluding that these conditions did in fact exist the trial court further determined that theefforts of the landlord to correct these inadequacies were feeble and dilatory and made only whenprodded by the court and municipal authorities 114 NJSuper 128
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-paymentof rent The court found that there had been a breach of the landlords express warranty of habitabilityand reduced the rent to
[63 NJ 464]
$75 a month retroactive to February 23 1970 the date from which the tenant had paidno rent This reduced sum was apparently forthcoming from the tenant at that time butnothing was paid thereafter and on November 14 1970 the tenant quit the premises
In the present action plaintiff seeks to recover the difference between the rent actually paid and anamount calculated at the rate of $75 a month for the period from the commencement of the tenancy untilFebruary 23 1970 pointing out that the landlords default had continued throughout the entire term Thelandlord counterclaimed for the rent remitted by the court The trial judge determined that the landlordshould fairly have been given one month from the date of the inception of the letting within which toundertake and complete the promised repairs He rejected the defendants contention that plaintiff hadwaived the failure to repair by continuing in possession and making full payment of the rent pointing tothe scarcity in the Elizabeth area of available housing for low-income families with children The plaintiffhad given testimony to the same effect He further concluded that since the repairs had never beenadequately made plaintiff was in fact entitled to the relief sought Calculating the fair rental value at $75a month the landlord would have received a total of $1200 for the period from November 1968 throughFebruary 1970 Since he had in fact received $2380 during this period it was determined that he shouldnow return $1180 and judgment for this amount was entered in the plaintiffs favor 114 NJ Super at130 The judgment was subsequently reduced to $97375 to reflect a credit in defendants favor of$20625 as rent for the period from August 27 the time of judgment to November 14 1970 119 NJSuper at 333
The Appellate Divison found that some of the defects might properly be classified as amenities that thetenant could have quit the premises had she wished but that she made no real effort to find otheraccommodations It concluded that the diminution in rent which had been granted
[63 NJ 465]
the tenant in the dispossess proceedings had achieved substantial justice between theparties and accordingly reversed the trial court judgment in plaintiffs favor
We first consider the applicable law in this State In Reste Realty Corporation v Cooper 53 NJ 444(1969) the lessor brought suit against the lessee for unpaid rent The evidence disclosed that thedemised premises mdash the basement floor of a commercial building mdash were periodically flooded with rainwater due to the improper surfacing of an adjoining driveway Following many complaints and after it hadbecome apparent that the recurrent floodings rendered the property substantially useless for the lesseesintended purpose she quit the premises and refused to make any further rental payments This Courtreversing the Appellate Division reinstated the judgment of the trial court in favor of the lessee Thefailure of the landlord to remove the cause of the flooding was found to be a violation of the covenant ofquiet enjoyment contained in the lease thus constituting a constructive eviction justifying the action ofthe tenant in vacating the demised premises During the course of the Courts opinion it was pointed outthat historically a lease for a term of years carried with it no implied warranty of habitability or of fitnessfor the agreed purpose of the tenancy that the doctrine of caveat emptor applied and that in theabsence of an express covenant to repair or proven misrepresentation the tenant took the property asis 53 NJ at 451 It was noted nevertheless that these doctrines were being widely and forcefullyattacked as inadequate to meet modern conditions and it was stated by way of considered dictum that
present day demands of fair treatment for tenants with respect to latent defects remediable by thelandlord either within the demised premises or outside the demised premises require imposition on himof an implied warranty against such defects [53 NJ at 454]
Reste is probably more important for what the opinion said and for what it forecast than for what it heldThe doctrine
[63 NJ 466]
of constructive eviction upon which the decision in the tenants favor rested was by nomeans novel 1 American Law of Property (Casner ed 1952) sect 351 and as has oftenbeen pointed out as a remedy it has serious drawbacks from a tenants point of view Ifthe conduct of a landlord is later found by a court not to have justified the tenant invacating the premises he will remain liable for unpaid rent Furthermore he may beunable to find other quarters that he can afford and that he wishes to rent and in anyevent he will be saddled with the not inconsiderable expenses of moving
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
The decision of this Court in Marini v Ireland 56 NJ 130 (1970) went much further toward improving atenants position vis-a-vis a recalcitrant landlord That action originated as a summary dispossessproceeding We there held inter alia that a residential lease carries with it an implied warranty orcovenant of habitability In explaining this holding Justice Haneman said
Actually it is a covenant that at the inception of the lease there are no latent defects in facilities vital tothe use of the premises for residential purposes because of faulty original construction or deteriorationfrom age or normal usage And further it is a covenant that these facilities will remain in usable conditionduring the entire term of the lease In performance of this covenant the landlord is required to maintainthose facilities in a condition which renders the property livable [56 NJ at 144]
Having determined that a continuing covenant of habitability was to be implied the Court went on toconsider the respective rights and liabilities to which the covenant gave rise as between lessor andlessee In that case a toilet had cracked and water was leaking onto the bathroom floor Repeatedattempts to inform the landlord were of no avail The tenant had the toilet repaired at a cost of $8572and sent the landlord a receipted bill in that amount together with a check for $928 Her monthly rentalwas $95 We found that this constituted a payment in full of the rent then due concluding that where avital facility is in need of repair this work
[63 NJ 467]
may be done by the tenant who may then offset the expense against his rentalobligation It was carefully pointed out however that the tenants recourse to this formof self-help must be preceded by timely and adequate notice to the landlord to affordhim an opportunity to make the necessary replacement or repair himself Should thetenant be unable to give such notice after making a reasonable effort to do so as hadthere been the case he might nonetheless go forward with the work of repair
In the case now before us the tenant did not vacate the premises claiming constructive eviction nor didshe undertake the needed repairs herself and then seek to offset the expense so incurred against herobligation to pay rent Thus she did not seek either of the particular remedies afforded in Reste or inMarini The latter case held however as we have just noted that in any residential lease be it oral orwritten there will be implied a covenant or warranty of habitability for the duration of the term In thiscase the warranty happens to have been express but for present purposes this makes no difference Alessor becomes liable to a lessee for any breach of this covenant Such a breach having occurred herethe question we are thus called upon to consider is what remedies are then available to a lessee Arethere remedies other than those granted in Reste and Marini Were this an ordinary breach of contractthe most obvious remedy would be to award the tenant damages in an amount equal to the differencebetween the rent actually paid in accordance with the lease agreement and what would have been thefair rental value of the premises in their defective condition The objection is made that should we adoptthis rule it would drastically change the law since traditionally most covenants in a lease mdash as opposedto those in an ordinary contract mdash are treated as being independent of one another so that while a tenantmay have an action for damages against his landlord for the breach of the latters express or impliedcovenant to repair this right of the tenant in no
[63 NJ 468]
way lessens his own obligation to make full and punctual payment of rent to thelandlord
This doctrine of independent covenants in leasehold arrangements is probably the most important singleconsequence of the traditional insistence of the law that because a lease may be said to convey aninterest in property most incidents of the landlord-tenant relationship are to be derived from principlesdrawn from the law of real property rather than from those to be found in the law of contracts It has beenpersuasively argued that while the doctrine of independent covenants and the strict application of therule of caveat emptor historically so typical of leasing arrangements may have resulted in fulfilling thereasonable needs and expectations of landlords and tenants in the agrarian society of medieval Englandthis is no longer true in modern urban and suburban society Today the tenant needs and expects morethan the mere land itself He generally needs and expects adequate shelter heat light water sanitationand maintenance It is obviously unsatisfactory to tell him that he may sue his landlord for any failure tosupply these necessities but that at the same time he must make recurring rental payments as they falldue Marini allowed the tenant in effect to apply rent monies to the making of necessary repairs Thiswas a clear departure from the traditional rule of independent covenants But the opinion did go on tosay that
[t]he tenant has only the alternative remedies of making the repairs or removing from the premises uponsuch a constructive eviction [56 NJ at 147]
The defendant here insists that this constituted a holding that no other remedy is available to a tenantwhere the landlord is at fault other than the two that are mentioned This restrictive reading of Marini hasbeen accepted elsewhere as well See Restatement of the Law of Property Second (Tent draft No 1March 23 1973) sect 54 page 213 Admittedly the
[63 NJ 469]
sentence read literally and apart from context seems to support this position But ofcourse a casual dictum will not shackle the Court to prevent a later exercise of itscreative powers in fashioning new remedies as need and occasion demand
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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Summons and complaint
MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
We now hold that the covenant on the part of a tenant to pay rent and the covenant mdash whether expressor implied mdash on the part of a landlord to maintain the demised premises in a habitable condition are forall purposes mutually dependent Accordingly in an action by a landlord for unpaid rent a tenant mayplead by way of defense and set off a breach by the landlord of his continuing obligation to maintain anadequate standard of habitability
That such a breach may be availed of by way of defense in a summary dispossess proceeding hasalready been settled Marini v Ireland supra 56 NJ at 140
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a depositpaid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the termwhere he alleges that the lessor has broken his covenant to maintain the premises in a habitablecondition In such an action if the alleged breach on the part of the landlord is proven the tenant will becharged only with the reasonable rental value of the property in its imperfect condition during his periodof occupancy As a prerequisite to maintaining such a suit the tenant must give the landlord positive andseasonable notice of the alleged defect must request its correction and must allow the landlord areasonable period of time to effect the repair or replacement Not every defect or inconvenience will bedeemed to constitute a breach of the covenant of habitability The condition complained of must be suchas truly to render the premises uninhabitable in the eyes of a reasonable person In Mease v FoxNW2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us in acase involving substantially
[63 NJ 470]
identical facts That opinion set forth the following factors mdash which we here paraphrasemdash as meriting consideration in determining whether in fact there has been a breach ofthe covenant of habitability on the part of the lessor
1 Has there been a violation of any applicable housing code or building or sanitary regulations
2 Is the nature of the deficiency or defect such as to affect a vital facility
3 What is its potential or actual effect upon safety and sanitation
4 For what length of time has it persisted
5 What is the age of the structure
6 What is the amount of the rent
7 Can the tenant be said to have waived the defect or be estopped to complain
8 Was the tenant in any way responsible for the defective condition
This list is intended to be suggestive rather than exhaustive Each case must be governed by its ownfacts The result must be just and fair to the landlord as well as the tenant
The following authorities support the proposition to which we adhere that in any residential lease notonly will there be implied on the part of the landlord a covenant of habitability to extend during the termof the demise but also this covenant and the tenants covenant to pay rent will be treated as mutuallydependent Pines v Perssion 14 Wis2d 590 111 NW2d 409 (1961) Brown v Southall Realty Co 237A2d 834 (DC App 1968) Lemle v Breeden 51 Haw 426 462 P2d 470 (1969) Javins v FirstNational Realty Corp 138 US App DC 369 428 F2d 1071 (1970) cert den 400 US 925 91 SCt186 27 LEd2d 185 (1970) Kline v Burns 111 NH 87 276 A2d 248 (1971) Jack Spring Inc v Little50 Ill2d 351 280 NE2d 208 (1972) Hinson v Delis 26 CalApp3d 62 102 CalRptr 661 (1972)Mease v Fox supra 200 NW2d 791 (Iowa 1972) Glyco v Schultz 289 NE2d 919 (Mun Ct Ohio1972) Boston Housing Authority v Hemingway
[63 NJ 471]
Mass 293 NE2d 831 (1973) Restatement of the Law of Property Second (Tentdraft No 1 March 23 1973) supra ch 51 In adopting the foregoing rule these courtsdeliberately rejected the rule of independent covenants and the doctrine of caveatemptor as applying to leases
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view In1971 the Legislature enacted a statute designed to meet the problem we are considering (L 1971 c224 now NJSA 2A42-85 et seq)2 Since it did not become effective until June 21 1971 it is notdirectly applicable to this case But as was recently pointed out by Justice Sullivan speaking for thisCourt in Shell Oil Co v Marinello 63 NJ 402 (1973) a statute often reflects legislative concern over alongstanding abuse and to that extent may be fairly understood as articulating a public policy pre-
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
existing the date of the statutory enactment Such is clearly the case here The introductory section ofthis statute is entitled Legislative findings and reads as follows
The Legislature finds
a Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meetminimum standards of safety and sanitation
b It is essential to the health safety and general welfare of the people of the State that owners ofsubstandard dwelling units be
[63 NJ 472]
encouraged to provide safe and sanitary housing accommodations for the public towhom such accommodations are offered
c It is necessary in order to insure the improvements of substandard dwelling units to authorize thetenants dwelling therein to deposit their rents with a court appointed administrator until such dwellingunits satisfy minimum standards of safety and sanitation [NJSA 2A42-85]
The act provides that either at the instance of a designated public official (presumably the buildinginspector) or at the instance of an affected tenant a petition may be filed with a court of competentjurisdiction that shall
[s]et forth material facts showing that there exists in such dwelling or any housing space thereof one ormore of the following a lack of heat or running water or of light or electricity or of adequate sewagedisposal facilities or any other condition or conditions in substantial violation of the standards of fitnessfor human habitation established under the State or local housing or health codes or regulations or anyother condition dangerous to life health or safety [NJSA 2A42-90(a)]
The petition must also show that the landlord has been apprised of the alleged deficiency and has failedto take corrective steps within a reasonable time The action shall then proceed in a summary manner Ifthe landlord is able to show that the alleged condition does not exist that it has been corrected that itwas caused by the tenant or that the landlord has been denied entry to that portion of the premises towhich access must be had in order to correct the condition then the action will be dismissed Otherwiseif the proofs are adequate judgment will be entered directing that rents thenceforth be deposited with theclerk of the court to be used to remedy the improper conditions that have been found to exist Thestatute sets forth in detail the procedure to be followed to accomplish the desired result Any attempt towaive the provisions of the enactment in a lease or other agreement will be void as against public policyNJSA 2A42-96 The statute broadly covers all rental premises or units used for dwelling purposesexcept owner-occupied
[63 NJ 473]
premises with not more than two rental units NJSA 2A42-86(d) This act althoughnot available to the plaintiff in this case will in the future afford a further remedy inaddition to those we have mentioned above to tenants of substandard dwellings
As to the defense of waiver we agree with the trial courts finding to the contrary which is adequatelysupported by the proofs We also find sufficient evidence in the record to sustain the trial courts findingsas to the rental value of the apartment
For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment ofthe trial court as amended in the amount of $97375 in favor of the plaintiff is herewith reinstated
For reversal mdash Chief Justice WEINTRAUB Justices JACOBS PROCTOR HALL and MOUNTAIN andJudges CONFORD and SULLIVAN mdash 7
For affirmance mdash None
FOOTNOTES
1 A similar approach to this problem was taken in Academy Spires Inc v Brown 111 NJSuper 477(Cty Dist Ct 1970) and in Samuelson v Quinones 119 NJSuper 338 (App Div 1972) noted in 4Seton Hall L Rev 714 (1973)
2 Similar rent withholding statutes exist in a number of other states The Massachusetts act is discussedin Boston Housing Authority v Hemingway supra as are the somewhat similar Housing Regulations ofthe District of Columbia in Javins v First National Realty Corporation supra See also Comment ThePennsylvania Project mdash A Practical Analysis of the Pennsylvania Rent Withholding Act 17 Vill L Rev821 (1972) as well as Statutory Note Restatement of the Law of Property Second (Tent draft No 1March 23 1973) supra at 167-173
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
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135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
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of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
decisions
USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
Opinion of the CourtNOTICE This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports Readers are requested tonotify the Reporter of Decisions Supreme Court of the United StatesWashington D C 20543 of any typographical or other formal errors inorder that corrections may be made before the preliminary print goes topress
SUPREME COURT OF THE UNITED STATES
Nos 00mdash1770 and 00mdash1781
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTHCIRCUIT
[March 26 2002]
Chief Justice Rehnquist delivered the opinion of the Court
With drug dealers ldquoincreasingly imposing a reign of terror on public and other federallyassisted low-income housing tenantsrdquo Congress passed the Anti-Drug Abuse Act of 1988 sect5122102 Stat 4301 42 USC sect 11901(3) (1994 ed) The Act as later amended provides that each
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER (00-1770 237 F3d 1113 reversed and remanded
Syllabus
Opin[ Rehnq
HTML versionPDF version
HTML vePDF ve
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
decisions
USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
ldquopublic housing agency shall utilize leases which hellip provide that any criminal activity thatthreatens the health safety or right to peaceful enjoyment of the premises by other tenantsor any drug-related criminal activity on or off such premises engaged in by a public housingtenant any member of the tenantrsquos household or any guest or other person under the tenantrsquoscontrol shall be cause for termination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed SuppV) Petitioners say that this statute requires lease terms that allow a local public housingauthority to evict a tenant when a member of the tenantrsquos household or a guest engages indrug-related criminal activity regardless of whether the tenant knew or had reason to knowof that activity Respondents say it does not We agree with petitioners
Respondents are four public housing tenants of the Oakland Housing Authority (OHA)Paragraph 9(m) of respondentsrsquo leases tracking the language of sect1437d(l)(6) obligates thetenants to ldquoassure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in hellip [a]ny drug-related criminal activity on ornear the premise[s]rdquo App 59 Respondents also signed an agreement stating that the tenantldquounderstand[s] that if I or any member of my household or guests should violate this leaseprovision my tenancy may be terminated and I may be evictedrdquo Id at 69
In late 1997 and early 1998 OHA instituted eviction proceedings in state court againstrespondents alleging violations of this lease provision The complaint alleged (1) that therespective grandsons of respondents William Lee and Barbara Hill both of whom were listed asresidents on the leases were caught in the apartment complex parking lot smoking marijuana(2) that the daughter of respondent Pearlie Rucker who resides with her and is listed on thelease as a resident was found with cocaine and a crack cocaine pipe three blocks from
Ruckerrsquos apartment1 and (3) that on three instances within a 2-month period respondentHerman Walkerrsquos caregiver and two others were found with cocaine in Walkerrsquos apartmentOHA had issued Walker notices of a lease violation on the first two occasions before initiatingthe eviction action after the third violation
United States Department of Housing and Urban Development (HUD) regulationsadministering sect1437d(l)(6) require lease terms authorizing evictions in these circumstances
The HUD regulations closely track the statutory language2 and provide that ldquo[i]n deciding toevict for criminal activity the [public housing authority] shall have discretion to consider all ofthe circumstances of the case hellip rdquo 24 CFR sect 9664(l)(5)(i) (2001) The agency made clear thatlocal public housing authoritiesrsquo discretion to evict for drug-related activity includes thosesituations in which ldquo[the] tenant did not know could not foresee or could not control behaviorby other occupants of the unitrdquo 56 Fed Reg 51560 51567 (1991)
After OHA initiated the eviction proceedings in state court respondents commenced actionsagainst HUD OHA and OHArsquos director in United States District Court They challenged HUDrsquosinterpretation of the statute under the Administrative Procedure Act 5 USC sect 706(2)(A)arguing that 42 USC sect 1437d(l)(6) does not require lease terms authorizing the eviction of so-called ldquoinnocentrdquo tenants and in the alternative that if it does then the statute is
unconstitutional3 The District Court issued a preliminary injunction enjoining OHA fromldquoterminating the leases of tenants pursuant to paragraph 9(m) of the lsquo Tenant Leasersquo for drug-related criminal activity that does not occur within the tenantrsquos apartment unit when thetenant did not know of and had no reason to know of the drug-related criminal activityrdquo Appto Pet for Cert in No 01mdash770 pp 165amdash166a
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
A panel of the Court of Appeals reversed holding that sect1437d(l)(6) unambiguously permitsthe eviction of tenants who violate the lease provision regardless of whether the tenant waspersonally aware of the drug activity and that the statute is constitutional See Rucker vDavis 203 F3d 627 (CA9 2000) An en banc panel of the Court of Appeals reversed andaffirmed the District Courtrsquos grant of the preliminary injunction See Rucker v Davis 237 F3d1113 (2001) That court held that HUDrsquos interpretation permitting the eviction of so-calledldquoinnocentrdquo tenants ldquois inconsistent with Congressional intent and must be rejectedrdquo under thefirst step of Chevron US A Inc v Natural Resources Defense Council Inc 467 US 837 842mdash843 (1984) 237 F3d at 1119
We granted certiorari 533 US 976 (2001) 534 US ___ (2001) and now reverse holdingthat 42 USC sect 1437d(l)(6) unambiguously requires lease terms that vest local public housingauthorities with the discretion to evict tenants for the drug-related activity of householdmembers and guests whether or not the tenant knew or should have known about the activity
That this is so seems evident from the plain language of the statute It provides that ldquoeachpublic housing authority shall utilize leases which hellip provide that hellip any drug-related criminalactivity on or off such premises engaged in by a public housing tenant any member of thetenantrsquos household or any guest or other person under the tenantrsquos control shall be cause fortermination of tenancyrdquo 42 USC sect 1437d(l)(6) (1994 ed Supp V) The en banc Court ofAppeals thought the statute did not address ldquothe level of personal knowledge or fault that isrequired for evictionrdquo 237 F3d at 1120 Yet Congressrsquo decision not to impose anyqualification in the statute combined with its use of the term ldquoanyrdquo to modify ldquodrug-relatedcriminal activityrdquo precludes any knowledge requirement See United States v Monsanto 491US 600 609 (1989) As we have explained ldquothe word lsquoanyrsquo has an expansive meaning thatis lsquoone or some indiscriminately of whatever kindrsquo rdquo United States v Gonzales 520 US 1 5(1997) Thus any drug-related activity engaged in by the specified persons is grounds fortermination not just drug-related activity that the tenant knew or should have known about
The en banc Court of Appeals also thought it possible that ldquounder the tenantrsquos controlrdquomodifies not just ldquoother personrdquo but also ldquomember of the tenantrsquos householdrdquo and ldquoguestrdquo237 F3d at 1120 The court ultimately adopted this reading concluding that the statuteprohibits eviction where the tenant ldquofor a lack of knowledge or other reason could notrealistically exercise control over the conduct of a household member or guestrdquo Id at 1126But this interpretation runs counter to basic rules of grammar The disjunctive ldquoorrdquo means thatthe qualification applies only to ldquoother personrdquo Indeed the view that ldquounder the tenantrsquoscontrolrdquo modifies everything coming before it in the sentence would result in the nonsensicalreading that the statute applies to ldquoa public housing tenant hellip under the tenantrsquos controlrdquoHUD offers a convincing explanation for the grammatical imperative that ldquounder the tenantrsquoscontrolrdquo modifies only ldquoother personrdquo ldquoby lsquocontrolrsquo the statute means control in the sensethat the tenant has permitted access to the premisesrdquo 66 Fed Reg 28781 (2001) Implicit inthe terms ldquohousehold memberrdquo or ldquoguestrdquo is that access to the premises has been granted bythe tenant Thus the plain language of sect1437d(l)(6) requires leases that grant public housingauthorities the discretion to terminate tenancy without regard to the tenantrsquos knowledge ofthe drug-related criminal activity
Comparing sect1437d(l)(6) to a related statutory provision reinforces the unambiguous text Thecivil forfeiture statute that makes all leasehold interests subject to forfeiture when used to
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
decisions
USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
commit drug-related criminal activities expressly exempts tenants who had no knowledge ofthe activity ldquo[N]o property shall be forfeited under this paragraph hellip by reason of any act oromission established by that owner to have been committed or omitted without the knowledgeor consent of the ownerrdquo 21 USC sect 881(a)(7) (1994 ed) Because this forfeiture provisionwas amended in the same Anti-Drug Abuse Act of 1988 that created 42 USC sect 1437d(l)(6)the en banc Court of Appeals thought Congress ldquomeant them to be read consistentlyrdquo so thatthe knowledge requirement should be read into the eviction provision 237 F3d at 1121mdash1122But the two sec-tions deal with distinctly different matters The ldquoinnocent ownerrdquo defense for drug forfeiturecases was already in existence prior to 1988 as part of 21 USC sect 881(a)(7) All that Congressdid in the 1988 Act was to add leasehold interests to the property interests that might beforfeited under the drug statute And if such a forfeiture action were to be brought against aleasehold interest it would be subject to the pre-existing ldquoinnocent ownerrdquo defense But 42USC sect 1437(d)(1)(6) with which we deal here is a quite different measure It is entirelyreasonable to think that the Government when seeking to transfer private property to itself ina forfeiture proceeding should be subject to an ldquoinnocent owner defenserdquo while it should notbe when acting as a landlord in a public housing project The forfeiture provision shows thatCongress knew exactly how to provide an ldquoinnocent ownerrdquo defense It did not provide one insect1437d(l)(6)
The en banc Court of Appeals next resorted to legislative history The Court of Appealscorrectly recognized that reference to legislative history is inappropriate when the text of thestatute is unambiguous 237 F3d at 1123 Given that the en banc Court of Appealsrsquo finding of
textual ambiguity is wrong see supra at 4mdash6 there is no need to consult legislative history4
Nor was the en banc Court of Appeals correct in concluding that this plain reading of the
statute leads to absurd results5 The statute does not require the eviction of any tenant whoviolated the lease provision Instead it entrusts that decision to the local public housingauthorities who are in the best position to take account of among other things the degree towhich the housing project suffers from ldquorampant drug-related or violent crimerdquo 42 USC sect11901(2) (1994 ed and Supp V) ldquothe seriousness of the offending actionrdquo 66 Fed Reg at28803 and ldquothe extent to which the leaseholder has hellip taken all reasonable steps to prevent ormitigate the offending actionrdquo ibid It is not ldquoabsurdrdquo that a local housing authority maysometimes evict a tenant who had no knowledge of the drug-related activity Such ldquono-faultrdquoeviction is a common ldquoincident of tenant responsibility under normal landlord-tenant law andpracticerdquo 56 Fed Reg at 51567 Strict liability maximizes deterrence and eases enforcementdifficulties See Pacific Mut Life Ins Co v Haslip 499 US 1 14 (1991)
And of course there is an obvious reason why Congress would have permitted local publichousing authorities to conduct no-fault evictions Regardless of knowledge a tenant wholdquocannot control drug crime or other criminal activities by a household member which threatenhealth or safety of other residents is a threat to other residents and the projectrdquo 56 FedReg at 51567 With drugs leading to ldquomurders muggings and other forms of violence againsttenantsrdquo and to the ldquodeterioration of the physical environment that requires substantialgovernmental expendituresrdquo 42 USC sect 11901(4) (1994 ed Supp V) it was reasonable forCongress to permit no-fault evictions in order to ldquoprovide public and other federally assistedlow-income housing that is decent safe and free from illegal drugsrdquo sect11901(1) (1994 ed)
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
decisions
USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
In another effort to avoid the plain meaning of the statute the en banc Court of Appealsinvoked the canon of constitutional avoidance But that canon ldquohas no application in theabsence of statutory ambiguityrdquo United States v Oakland Cannabis Buyersrsquo Cooperative 532US 483 494 (2001) ldquoAny other conclusion while purporting to be an exercise in judicialrestraint would trench upon the legislative powers vested in Congress by Art I sect1 ofthe Constitutionrdquo United States v Albertini 472 US 675 680 (1985) There are moreoverno ldquoserious constitutional doubtsrdquo about Congressrsquo affording local public housing authoritiesthe discretion to conduct no-fault evictions for drug-related crime Reno v Flores 507 US292 314 n 9 (1993) (emphasis deleted)
The en banc Court of Appeals held that HUDrsquos interpretation ldquoraise[s] serious questionsunder the Due Process Clause of the Fourteenth Amendmentrdquo because it permits ldquotenants tobe deprived of their property interest without any relationship to individual wrongdoingrdquo 237F3d at 1124mdash1125 (citing Scales v United States 367 U S 203 224mdash225 (1961)Southwestern Telegraph amp Telephone Co v Danaher 238 US 482 (1915)) But both of thesecases deal with the acts of government as sovereign In Scales the United States criminallycharged the defendant with knowing membership in an organization that advocated theoverthrow of the United States Government In Danaher an Arkansas statute forbadediscrimination among customers of a telephone company The situation in the present cases isentirely different The government is not attempting to criminally punish or civilly regulaterespondents as members of the general populace It is instead acting as a landlord of propertythat it owns invoking a clause in a lease to which respondents have agreed and which Congresshas expressly required Scales and Danaher cast no constitutional doubt on such actions
The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing tothe fact that respondents have a property interest in their leasehold interest citing Greene vLindsey 456 US 444 (1982) This is undoubtedly true and Greene held that an effort todeprive a tenant of such a right without proper notice violated the Due Process Clause of theFourteenth Amendment But in the present cases such deprivation will occur in the statecourt where OHA brought the unlawful detainer action against respondents There is no indi-cation that notice has not been given by OHA in thepast or that it will not be given in the future Any individual factual disputes about whether
the lease provision was actually violated can of course be resolved in these proceedings6
We hold that ldquoCongress has directly spoken to the precise question at issuerdquo ChevronUS A Inc v Natural Resources Defense Council Inc 467 US at 842 Section 1437d(l)(6)requires lease terms that give local public housing authorities the discretion to terminate thelease of a tenant when a member of the household or a guest engages in drug-related activityregardless of whether the tenant knew or should have known of the drug-related activity
Accordingly the judgment of the Court of Appeals is reversed and the cases are remandedfor further proceedings consistent with this opinion
It is so ordered
Justice Breyer took no part in the consideration or decision of these cases
Notes
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
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of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
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limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
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plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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Judge Rosenberg summary of law
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Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
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MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
1 In February 1998 OHA dismissed the unlawful detainer action against Rucker after herdaughter was incarcerated and thus no longer posed a threat to other tenants
2 The regulations require public housing authorities (PHAs) to impose a lease obligation ontenants ldquoTo assure that the tenant any member of the household a guest or another personunder the tenantrsquos control shall not engage in ldquo(A) Any criminal activity that threatens thehealth safety or right to peaceful enjoyment of the PHArsquos public housing premises by otherresidents or employees of the PHA or ldquo(B) Any drug-related criminal activity on or near suchpremises Any criminal activity in violation of the preceding sentence shall be cause fortermination of tenancy and for eviction from the unitrdquo 24 CFR sect 9664(f)(12)(i) (2001)
3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that arenot before this Court And all of the respondents raised state-law claims against OHA that arenot before this Court
4 Even if it were appropriate to look at legislative history it would not help respondents Theen banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposedamendment to the eviction provision 237 F3d at 1123 (citing S Rep No 101mdash316 (1990))But this Report was commenting on language from a Senate version of the 1990 amendmentwhich was never enacted The language in the Senate version which would have imposed adifferent standard of cause for eviction for drug-related crimes than the unqualified languageof sect1437d(l)(6) see 136 Cong Rec 15991 16012 (1990) (reproducing S 566 101st Cong 2dSess sectsect521(f) and 714(a) (1990)) was rejected at Conference See H R Conf Rep No 101mdash943 p 418 (1990) And as the dissent from the en banc decision below explained thepassages may plausibly be read as a mere suggestion about how local public housing authoritiesshould exercise the ldquowide discretion to evict tenants connected with drug-related criminalbehaviorrdquo that the lease provision affords them 237 F3d at 1134 (Sneed J dissenting) Respondents also cite language from a House Report commenting on the Civil AssetForfeiture Reform Act of 2000 codified at 18 USC sect 983 Brief for Respondents 15mdash16 Forthe reasons discussed supra at 6mdash7 legislative history concerning forfeiture provisions is notprobative on the interpretation of sect1437d(l)(6) A 1996 amendment to sect1437d(l)(6) enactedfive years after HUD issued its interpretation of the statute supports our holding The 1996amendment expanded the reach of sect1437d(l)(6) changing the language of the lease provisionfrom applying to activity taking place ldquoon or nearrdquo the public housing premises to activityoccurring ldquoon or offrdquo the public housing premises See Housing Opportunity Program ExtensionAct of 1996 sect9(a)(2) 110 Stat 836 But Congress ldquopresumed to be awarerdquo of HUDrsquosinterpretation rejecting a knowledge requirement made no other change to the statuteLorillard v Pons 434 US 575 580 (1978)
5 For the reasons discussed above no-fault eviction which is specifically authorized undersect1437d(l)(6) does not violate sect1437d(l)(2) which prohibits public housing authorities fromincluding ldquounreasonable terms and conditions [in their leases]rdquo In addition the generalstatutory provision in the latter section cannot trump the clear language of the more specificsect1437d(l)(6) See Green v Bock Laundry Machine Co 490 US 504 524mdash526 (1989)
6 The en banc Court of Appeals cited only the due process constitutional concernRespondents raise two others the First Amendment and the Excessive Fines Clause We agreewith Judge OrsquoScannlain writing for the panel that reversed the injunction that the statute
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
0
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
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USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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MARINI v IRELAND | Leaglecom
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BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
does not raise substantial First Amendment or Excessive Fines Clause concerns Lyng vAutomobile Workers 485 US 360 (1988) forecloses respondents claim that the eviction ofunknowing tenants violates the First Amendment guarantee of freedom of association SeeRucker v Davis 203 F3d 627 647 (2000) And termination of tenancy ldquois neither a cash nor anin-kind payment imposed by and payable to the governmentrdquo and therefore is ldquonot subject toanalysis as an excessive finerdquo Id at 648
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
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Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
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Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
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Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
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Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
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A permissible must do for landlords New Jersey Lawyer April 3 2006
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
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Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
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Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
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Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
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Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
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A permissible must do for landlords New Jersey Lawyer April 3 2006
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE
HOUSING AUTHORITY OF THE TOWN OF MORRISTOWN PLAINTIFF-RESPONDENT v CATHY LITTLE DEFENDANT-APPELLANT
The opinion of the Court was delivered by STEIN Justice
The issue presented by this appeal is whether NJSA 2A42-106 of the Tenant Hardship Act whichgrants courts the power to stay an eviction up to a maximum of six months restricts a courts power tovacate a judgment for possession on equitable grounds pursuant to Rule 450-1
The Housing Authority of the Town of Morristown (Authority) instituted a summary dispossess actionagainst a tenant Cathy Little The trial court entered a default judgment for possession in favor of theAuthority based on nonpayment of rent See NJSA 2A18-611a The court also issued a warrant ofremoval See NJSA 2A18-57 After the warrant had been executed and Little had been evicted thecourt issued a stay of the warrant and allowed Little to return to her apartment The court then vacatedthe judgment pursuant to Rule 450-1 on Littles payment of the back rent in full to the Authority TheAppellate Division reversed holding that the Tenant Hardship Act (Act) L 1957 c 110 limited a courtsauthority to vacate a judgment for possession and that the facts did not justify the application of Rule450 263 NJSuper 368 622 A2d 1343 (1993) We granted certification 134 NJ 476 634 A2d 523(1993) and now reverse
I
Defendant Cathy Little rents an apartment from the Authority a public-housing agency created pursuantto NJSA 5514A-1 She lives with her five minor children and receives both food stamps and benefitsunder the Aid to Families with Dependent Children (AFDC) program The rent for the apartment is $125per month In April 1992 the Authority filed a complaint for summary dispossess alleging nonpayment ofrent as the sole basis for relief When the complaint was filed Little was one month behind in her rent
View Case Cited Cases Citing Case
135 NJ 274 (1994)639 A2d 286
The Supreme Court of New JerseyDecided April 11 1994
Gerald R Brennan argued the cause for appellant (William F Matrician Legal Director Legal Aid Societyof Morris County attorney)Erica Sawyer argued the cause for respondent (Mandel Berezin Booker amp Rodner attorneys Ernest RBooker of counsel)David G Sciarra Senior Attorney argued the cause for amicus curiae Legal Services of New Jersey(Melville D Miller Jr President attorney Mr Miller Mr Sciarra and Cesar Torres Managing Attorneyon the brief)Claudette L St Romain submitted a brief on behalf of amicus curiae Hudson County Legal ServicesCorp (Timothy K Madden Director attorney)
f T + Comments (0) ] Ntilde
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
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of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
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limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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MARINI v IRELAND | Leaglecom
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
On the return date of the complaint Little failed to appear and the Authority obtained a default judgmentfor possession See R 66-3(b) The Authority filed a request for a warrant of removal Little obtained anorder to show cause temporarily staying the execution of the warrant Because she had been out of towntrying to collect the money for the rent Little arrived late to court on the return date of the order Thecourt had already vacated the stay by the time Little arrived at the designated courtroom The warrantwas executed immediately thereafter The Authority locked Little and her children out of their apartmentthat afternoon That same day Little offered the Authority $150 toward her arrears and promised to paythe balance the following Monday June 22 The Authority refused her offer
At the suggestion of the court Little obtained counsel through the Legal Aid Society of Morris County OnJune 22 she obtained a second order to show cause returnable June 26 requesting that the judgmentfor possession be vacated and that she be permitted to move back in to her apartment The courtpermitted Little to re-enter her apartment pending the hearing on her application That same day Littleoffered the Authority all of the rent money owed but the Authority again refused to accept the back rent
At the June 26 hearing the Authority explained that it had refused Littles tender of rent because it didnot wish to continue her tenancy During oral argument the Authoritys counsel claimed that Little hadbeen the source of many complaints andthat her apartment had been the site of drug activities The court declined to credit the Authoritysallegations noting that the current proceeding was for nonpayment of rent only and that other statutorygrounds for eviction were available to the Authority The court vacated the judgment for possession onpayment by Little of the full amount of rent due basing its decision on the equitable grounds included inRule 450-1 and setting forth the considerations on which it had relied the presence of five minorchildren the unavailability of suitable housing at the same rent and the fact that public housing wasinvolved
The Authority appealed the trial courts order to the Appellate Division Reversing the Appellate Divisiondetermined that a courts power to vacate a judgment for possession in a summary-dispossessproceeding based on nonpayment of rent is foreclosed by the Tenant Hardship Act which limits the reliefavailable to a stay of the execution of a warrant of removal for up to six months 263 NJ Super at 369-70 622 A2d 1343 (citing NJSA 2A42-106) The Appellate Division held that a tenant cannot avoid ajudgment for possession for nonpayment of rent by paying rent after that judgment has been enteredobserving that the trial courts action in vacating the judgment for possession exceeded the limits ofjudicial discretion authorized by the Legislature under NJSA 2A42-106 Id at 370-71 622 A2d 1343The Appellate Division opinion relied heavily on this Courts decision in Housing Authority v West 69NJ 293 354 A2d 65 (1976) in which we reversed a trial courts order granting a tenant a twenty-two-month hardship stay designed to enable her to pay back to the landlord the total amount of rent dueThere we found that the trial courts order had unlawfully exceeded the six-month limit imposed byNJSA 2A42-106 69 NJ at 300-01 354 A2d 65
The Appellate Division noted however that under certain circumstances a court could grant relief from ajudgment for possession under Rule 450-1 It concluded that defendant had not met the criteria forapplication of Rule 450-1 because the sole basis for the trial courts grant of relief was Littles paymentof theaccrued rent 263 NJ Super at 372 622 A2d 1343 After petitioning for certification Little applied forand was granted a stay of eviction by the Appellate Division effective until final disposition by this Court
II
A
The summary-dispossess statute was enacted in 1847 PL 1847 p 142 The purpose of the statutewas to afford landlords an expedited procedure to regain possession of leased premises therebyavoiding the delays ordinarily associated with common-law ejectment actions West supra 69 NJ at300 354 A2d 65 Vineland Shopping Ctr Inc v De Marco 35 NJ 459 462 173 A2d 270 (1961) Theonly remedy that can be granted in a summary-dispossess proceeding is possession no moneydamages may be awarded Ortiz v Engelbrecht 61 FRD 381 389 (DNJ 1973) 23A New JerseyPractice Landlord and Tenant Law sect 4311 at 299 (Sharon Rivenson Mark amp Raymond I Korona) (4thed 1990) Prior to the abolition of the County District Courts by the Legislature in 1983 L 1983 c 405sect 1 and the transfer of summary actions for possession to the Special Civil Part see Rule 61-2(a)(3)the summary-dispossess statute barred appellate review affording finality to the trial courts judgment forpossession except that judgments could be appealed on the ground that the court lacked jurisdictionbecause the plaintiff had failed to prove any of the statutory grounds NJSA 2A18-59 Vineland supra35 NJ at 462-63 173 A2d 270 Academy Spires Inc v Jones 108 NJSuper 395 399 261 A2d 413(Law Div 1970) However because the Special Civil Part is a division of the Superior Court appeals areprotected from statutory restrictions by the New Jersey Constitution article VI section 5 paragraph 2 andare available as of right from a final judgment in a summary-dispossess action See R 22-3(a)Township of Bloomfield v Rosannas Figure Salon Inc 253 NJSuper 551 557-58 602 A2d 751(AppDiv 1992)
The summary-dispossess procedure also was designed to secure performance of the rental obligation inactions based on nonpayment of rent Vineland supra 35 NJ at 469 173 A2d 270 Notably if the rent
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
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New Jersey Apartment Association
Property Owners Association
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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Summons and complaint
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
owed is paid on or before final judgment in a proceeding based on nonpayment of rent the landlord canno longer pursue the summary remedy NJSA 2A18-55 Vineland supra 35 NJ at 469 173 A2d270
Unlike the common-law ejectment action which existed prior to enactment of the summary-dispossessstatute and remains available to aggrieved landlords the jurisdiction of the court in summary-dispossessproceedings is entirely statutory Ortiz supra 61 FRD at 390 CF Seabrook Co v Beck 174NJSuper 577 589 417 A2d 89 (AppDiv 1980) see NJSA 2A18-53 to -60 NJSA 2A18-611limits the grounds for which residential tenants may be evicted in a summary proceeding and jurisdictionto grant the remedy requires a showing that one of the statutory grounds for eviction exists Levine vSeidel 128 NJSuper 225 229 319 A2d 747 (AppDiv 1974) Those grounds include nonpayment ofrent disorderly conduct habitual late payment of rent and destruction of the premises NJSA 2A18-611a to 1c1j
A summary judgment for possession is enforced by a warrant of removal that cannot issue until threedays after the entry of the judgment for possession See NJSA 2A18-57 The warrant of removal inturn cannot be executed until three days after its issuance See ibid NJSA 2A42-1016 The SpecialCivil Part has jurisdiction to hear applications for lawful relief for up to ten days after the warrant ofremoval has been executed See NJSA 2A42-1016 A form of relief frequently granted by the courtsis a hardship stay of eviction The courts statutory power to grant that relief derives from the TenantHardship Act which authorizes the court having jurisdiction in the matter to stay the issuance of awarrant for up to six months if it shall appear that by the issuance of the warrant or writ the tenant willsuffer hardship because of the unavailability of other dwelling accommodations NJSA 2A42-106 A court may not issue orcontinue a stay if (1) all rent arrearages plus court costs and current rent have not been paid (2) thetenant is disorderly (3) the tenant willfully damages the premises or (4) the tenant fails to pay futurerent as it becomes due NJSA 2A42-106
Therefore the Act enables courts to grant discretionary relief to tenants facing eviction Academy Spiressupra 108 NJ Super at 402 261 A2d 413 while limiting the conditions under which courts mayprovide such relief See West supra 69 NJ at 300-01 354 A2d 65 (holding that order stayingissuance of warrant of removal pending tenants payment of arrearages over twenty-two monthsexceeded limits imposed by statute as well as courts jurisdiction) Ivy Hill Park Section Five Inc vHanda 121 NJSuper 366 297 A2d 201 (AppDiv 1972) (holding that court may not grant stay unlessconditioned on payment of back and future rent) Spruce Park Apartments v Beckett 230 NJSuper311 317 553 A2d 395 (Law Div 1988) (noting that defendant may apply for a hardship stay providedthat all statutory requirements therefore have been or will be satisfied) The Tenant Hardship Act hasallowed trial courts within the limits of the statute to mitigate the harsh nature of the summary-dispossess procedure by postponing for a limited time the execution of a warrant of removal if theeviction presents a hardship to the tenant See West supra 69 NJ at 300-01 354 A2d 65 (finding thatcourt has discretion to stay the warrant for a reasonable time to permit a tenant in distressedcircumstances to arrange for his voluntary removal from the premises) Metpark Inc v Kensharper 206NJSuper 151 159 501 A2d 1068 (Law Div 1985) (granting additional stay of three months to mobile-home trailer-park residents to enable them to find purchaser)
B
The trial court granted relief to Little by vacating the judgment for possession on equitable groundspursuant to Rule 450-1 which is made applicable to the Special Civil Part by Rule 66-1 Rule 450-1provides in part
On motion with briefs and upon such terms as are just the court may relieve a party or his legalrepresentative from a final judgment or order for the following reasons (a) mistake inadvertence surprise orexcusable neglect (b) newly discovered evidence which would probably alter the judgment or order andwhich by due diligence could not have been discovered in time to move for a new trial (c) fraud misrepresentation or other misconduct of an adverse party (d) the judgment or order is void (e) the judgmentor order has been satisfied released or discharged or a prior judgment or order upon which it is based hasbeen reversed or otherwise vacated or it is no longer equitable that the judgment or order should haveprospective application or (f) any other reason justifying relief from the operation of the judgment or order
[Emphasis added]
A motion under Rule 450-1 is addressed to the sound discretion of the trial court which should beguided by equitable principles in determining whether relief should be granted or denied Hodgson vApplegate 31 NJ 29 37 155 A2d 97 (1959) Shammas v Shammas 9 NJ 321 328 88 A2d 204(1952) The decision granting or denying an application to open a judgment will be left undisturbedunless it represents a clear abuse of discretion Mancini v EDS 132 NJ 330 334 625 A2d 484(1993) Court Inv Co v Perillo 48 NJ 334 341 225 A2d 352 (1966) Hodgson supra 31 NJ at 37155 A2d 97 Pressler Current NJ Court Rules comment 1 on R 450-1 (1993)
Although the trial court did not identify the specific subsections of Rule 450-1 on which it relied therecord includes facts that invite consideration of the grounds for relief set forth in Rule 450-1(e) and (f)
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
Moreover we gain insight concerning the general criteria governing application of Rule 450-1 byexamining cases decided under subsection (a) which includes mistake and excusable neglect asgrounds for relief from a judgment
Courts have applied subsection (a) adaptively when advanced as the basis for setting aside a defaultjudgment See Marder v Realty Constr Co 84 NJSuper 313 318-19 202 A2d 175 (AppDiv)(affirming vacation of default judgment as within trial courts discretion and stating [T]he opening ofdefault judgments should be viewed with great liberality and every reasonableground for indulgence is tolerated to the end that a just result is reached) affd 43 NJ 508 205 A2d744 (1964) Generally a defendant seeking to reopen a default judgment because of excusable neglectmust show that the failure to answer was excusable under the circumstances and that a meritoriousdefense is available See Mancini supra 132 NJ at 334-35 625 A2d 484 (holding that neglect bydefendant to respond to claims notices and complaints was inexcusable because defendant was inbusiness of processing claims) Morales v Santiago 217 NJSuper 496 501 504 526 A2d 266(AppDiv 1987) (holding that defendants were entitled to vacation of default judgment because ofexcusable neglect or in interest of justice) Marder supra 84 NJ Super at 318 202 A2d 175 (holdingthat neglect to answer complaint was excusable where defendant had not received notice from insurancecarrier that claim was not covered under policy until after time for answering had elapsed and thatdefense was meritorious where acts complained of arguably did not constitute basis for judgment)Carelessness may be excusable when attributable to an honest mistake that is compatible with duediligence and reasonable prudence See Tradesmens Natl Bank amp Trust Co v Cummings 38NJSuper 1 4-5 118 A2d 80 (AppDiv 1955) (holding that trial court did not abuse its discretion invacating default judgment on basis of excusable neglect where defendant who was seventy-seven yearsold and emotionally upset due to death of his wife carelessly failed to respond to complaint) see alsoBaumann v Marinaro 95 NJ 380 394 471 A2d 395 (1984) (observing that in certain casescarelessness may be excusable but where trial counsels errors were not due to honest mistakeaccident or conduct compatible with proper diligence carelessness did not constitute excusable neglect)Furthermore doubt should be resolved in favor of the party seeking relief Mancini supra 132 NJ at334 625 A2d 484 see also Arrow Mfg Co v Levinson 231 NJSuper 527 533-34 555 A2d 1165(AppDiv 1989) (finding excusable defendants failure to respond to demand notice requesting informationpursuant to NJSA 2A17-74 because demand notice received by defendant had been addressed tocorporation ofwhich he was stockholder and officer and contained technical language furthermore defendant haddemonstrated willingness to supply information to plaintiff as required in connection with legalproceedings)
Rule 450-1(e) grants a court the discretion to relieve a party from a final judgment or order if that partycan show that it is no longer equitable that the judgment or order should have prospective application[]New Jersey courts have rarely relied on subsection (e) in providing relief under Rule 450-1 SeeStanger v Ridgeway 171 NJSuper 466 410 A2d 59 (AppDiv 1979) (applying Rule 450-1(e))However because Rule 450-1 was patterned after Federal Rule of Civil Procedure 60(b) we mayanticipate the potential application of subsection (e) by `draw[ing] on the experience of the federal courtswith that rule Baumann supra 95 NJ at 392 471 A2d 395 (quoting Hodgson supra 31 NJ at35 155 A2d 97)
In addressing the scope of subsections (5) and (6) of Rule 60(b) (the federal equivalents of subsections(e) and (f) of Rule 450-1 respectively) the Third Circuit has observed that the broad language of eitherprovision does not present[] the court with a `standardless residual discretionary power to set asidejudgments See Mayberry v Maroney 558 F2d 1159 1163 (1977) (quoting Mayberry v Maroney529 F2d 332 337 (1976) (Gibbons J concurring)) see also Moolenaar v Government of VI 822 F2d1342 1346 (3d Cir1987) (quoting Mayberry supra 558 F2d at 1163) Thus a motion to vacate ormodify a judgment on the ground that it is no longer equitable that the judgment should have prospectiveapplication must be supported by evidence of changed circumstances United States v Swift amp Co 286US 106 114-15 52 SCt 460 462 76 LEd 999 1005-06 (1932) Mayberry supra 558 F2d at 1163SEC v Hatch 128 FRD 58 61 (DNJ 1989) The party seeking relief bears the burden of proving thatevents have occurred subsequent to the entry of a judgment that absent the relief requested will resultin extreme and unexpected hardship Mayberry supra 558F2d at 1163 (citing Swift supra 286 US at 119 52 SCt at 464 76 LEd at 1008) That burden isimposed in order to overcome the courts interests in orderly procedures and the finality of judgmentsIbid In re FA Potts amp Co 86 BR 853 858 (EDPa) affd 93 BR 62 (EDPa 1988) affd 891 F2d280 (3d Cir) and affd sub nom Appeal of Pagnotti Enters Inc 891 F2d 282 (3d Cir1989)
This Court has addressed the application of Rule 450-1(f) on several occasions In Court InvestmentCo supra 48 NJ 334 225 A2d 352 we noted that
[n]o categorization can be made of the situations which would warrant redress under subsection (f) [T]hevery essence of (f) is its capacity for relief in exceptional situations And in such exceptional cases itsboundaries are as expansive as the need to achieve equity and justice
[Id at 341 225 A2d 352]
See Baumann supra 95 NJ at 395 471 A2d 395 Manning Engg Inc v Hudson County ParkCommn 74 NJ 113 122 376 A2d 1194 (1977) (We have repeatedly noted the broad parameters of acourts discretion under subsection (f) and that a court should have authority under it to reopen a
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
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Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
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DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
judgment where such relief is necessary to achieve a fair and just result) Hodgson supra 31 NJ at41 155 A2d 97 Because of the importance that we attach to the finality of judgments relief under Rule450-1(f) is available only when truly exceptional circumstances are present Baumann supra 95 NJat 395 471 A2d 395 However [b]ecause R 450-1(f) deals with exceptional circumstances each casemust be resolved on its own particular facts Ibid see Manning Engg supra 74 NJ at 123-25 376A2d 1194 (finding reopening of judgment under Rule 450-1(f) warranted because of public policy toprevent recovery of damages for breach of illegal public contract) Court Inv Co supra 48 NJ at 344-47 225 A2d 352 (granting relief under Rule 450-1(f) where defendants attorney in mortgage-foreclosure suit was subject to disciplinary proceedings that led to disbarment at time he falsely assureddefendants that suit had been taken care of but default judgment was entered against them)
Some courts have applied Rule 450-1 in actions for summary dispossess In Stanger supra 171NJSuper 466 410 A2d 59 the landlord obtained a judgment for possession against a residentialtenant on the ground of nonpayment of rent The tenant had withheld rent claiming that his home hadbecome uninhabitable On the date of trial when the court directed entry of the judgment in favor of thelandlord the tenant asked for confirmation from the court that the case would be dismissed if the moneyowed were paid before the warrant of removal was issued The trial court agreed and the landlordsattorney did not object The tenant paid the back rent and costs to the landlords attorney three dayslater on the first day that the warrant lawfully could have been issued However because the warranthad been issued in error only two days after the judgment had been entered the tenant was served withthe warrant the day after payment Id at 468-69 410 A2d 59 The tenant applied for an injunctionagainst the execution of the warrant of removal and the court held that the judgment for possessionwould be vacated because of the tenants payment of back rent The landlord appealed claiming that thetenant was not statutorily entitled to a vacation of the judgment because the payment had not beenmade before the judgment for possession had been entered See NJSA 2A18-55 The AppellateDivision agreed that NJSA 2A18-55 required payment before or on the day judgment was entered inorder to nullify a judgment for possession for nonpayment of rent The Appellate Division howeverupheld the trial courts use of Rule 450-1 finding that to allow plaintiff to evict defendant under thecircumstances would be a perversion of justice and noting that because the landlords attorney didnot object at the hearing to the timing of the payment the landlord should be estopped from challengingthe timeliness of the payment 171 NJ Super at 473-74 410 A2d 59 The Appellate Division alsofound that the court retained the equitable power to terminate the proceedings after entry of judgmentunder Rule 450-1(e) statingthat it is no longer equitable that the judgment or order should have prospective application Id at 474410 A2d 59
In Olympic Industrial Park v PL Inc 208 NJSuper 577 506 A2d 770 certif denied 104 NJ 453517 A2d 440 (1986) the Appellate Division also upheld the use of Rule 450-1 in a nonpayment casealthough in the context of a commercial tenancy In Olympic the landlord obtained a default judgment forpossession claiming that the tenant had not paid rent for the last two months In fact the tenant waslate in paying only the current months rent and in addition the tenant had received assurances that asin the past the late rent would be accepted if accompanied by a payment of the late charge Thecorporate tenant was not present at trial because the sole owner and president was in Italy On learningthat the landlord was proceeding with the summary-dispossess action the owner left Italy immediatelyin order to pay the overdue rent at the earliest possible moment The tenant made full payment withintwenty-four hours after entry of judgment and moved to vacate the judgment pursuant to Rule 450-1The trial court denied the motion but the Appellate Division reversed holding that the trial court haderred in not exercising its discretionary power to grant the motion 208 NJ Super at 582 506 A2d 770The court vacated the judgment under Rule 450-1 finding excusable neglect and that the equities all favor defendant Id at 581-82 506 A2d 770 The Appellate Division explained that the dispossessstatute was not the exclusive source of the trial courts power noting that [t]here is no statutory authorityimpinging on the courts inherent right as implemented by rule of court to grant relief from its ownjudgments Id at 582 506 A2d 770 see also 23A New Jersey Practice Landlord and Tenant Lawsupra sect 4113 at 216 (stating that party may be relieved from final judgment in summary-dispossessproceeding under Rule 450-1) Mahlon L Fast A Guide to LandlordTenant Actions in the Special CivilPart of the Superior Court of New Jersey 101 102 (1992) (stating that Special Civil Part has jurisdictionto hear motions to vacate underRule 450-1 for ten days after warrant of removal has been executed)
III
We entertain no doubt that a courts limited power to grant a stay under the Act is entirely consistent witha courts residual power to vacate a judgment pursuant to Rule 450-1 We note the important distinctionthat exists between the statutory stay and a courts discretionary power to vacate a judgment A stay is aprovisional remedy that delays the award of a permanent remedy even though the substantive rights ofthe parties have not changed In the case of a summary-dispossess action the landlords right topossession remains undisturbed and the execution of the judgment is merely postponed In contrast acourt typically vacates a judgment because events have arisen to alter the substantive rights of theparties or because the relief granted did not adequately take into account the prevailing equities SeeManning Engg supra 74 NJ at 123-25 376 A2d 1194 Stanger supra 171 NJ Super at 474 410A2d 59
Courts should use Rule 450-1 sparingly in exceptional situations the Rule is designed to provide relieffrom judgments in situations in which were it not applied a grave injustice would occur The broad reach
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
decisions
USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
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HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
of the Rule is designed to encompass a limitless variety of factual situations including judgments arisingfrom summary-dispossess proceedings We note that in Stanger and Olympic Rule 450-1 appropriatelyprovided relief from judgments in summary-dispossess actions for nonpayment of rent
We have found no evidence that demonstrates that the Legislature in enacting the Act intended to limitthe ability of a court to vacate a judgment for possession for good cause To the contrary a statement ofthe Senate County and Municipal Government Committee accompanying a 1979 amendment to NJSA2A42-1017 that limited a courts power to grant a stay of a warrant ofremoval for a residential seasonal tenant acknowledges a courts residual power to vacate judgmentsThat statement noted that the amendment would not affect the discretion of a court with respect to entryof a judgment or to reopening a judgment A court could still reopen a judgment and thereby withdraw awarrant from the judgment previously entered if it finds cause Senate County and MunicipalGovernment Committee Statement to Assembly No 3591 at 1 (1979) The committee statementsuggests that the Legislature perceived no conflict between a courts statutory power to issue a stay ofeviction and a courts discretion to vacate a judgment for possession
We conclude that the trial court had the authority to invoke Rule 450-1 to vacate a judgment forpossession in a summary-dispossess action after a warrant of removal had been executed TheAppellate Division determined however that even if the court had the power to invoke Rule 450-1 aftera warrant of removal had been executed the equities did not support the result granted by the trial courtWe disagree We need not attempt to define the outer limits of the use of Rule 450-1(f) in summary-dispossess actions for nonpayment of rent As noted supra at 286 639 A2d at 292 although reliefunder subsection (f) of the Rule is available only in exceptional circumstances Baumann supra 95NJ at 395 471 A2d 395 its boundaries `are as expansive as the need to achieve equity and justicePalko v Palko 73 NJ 395 398 375 A2d 625 (1977) (quoting Court Inv Co supra 48 NJ at 341225 A2d 352) accord Mancini supra 132 NJ at 336 625 A2d 484 The discretion afforded to a trialcourt under the Rule also includes the duty to consider evidence in the record that militates against thegrant of relief including evidence that a tenants past payment record has been erratic or that the tenanthas been disorderly or has damaged the premises See NJSA 2A18-611b and c No such evidencewas adduced before the trial court
Focusing on the record before us we note that the trial court considered that Little within three daysafter execution of the warrant of removal had been able to pay to the Authority the entire amount of rentdue The court also considered that five minor children lived in the apartment and that suitable housingwas not readily available at the same monthly rental Another factor that may have affected the courtsexercise of discretion was that the Authority a publicly-subsidized provider of housing of last resort issubject to public-policy responsibilities not generally imposed on private landlords See NJSA40A12A-19b(1) (requiring housing authorities to rent only to persons of low and moderate income and atrentals within the financial reach of such persons) NJSA 5514A-3(j) (defining persons of low incometo mean persons or families who are in the lowest income group and who cannot afford to pay enoughto live in [private] dwellings without overcrowding) 42 USCA sectsect 1437a to 1437w (establishingrequirements for operation and maintenance of public housing by public-housing authorities) Westsupra 69 NJ at 312 354 A2d 65 (Pashman J dissenting) (Housing authorities must fulfill the dualroles of landlord and governmental anti-poverty agency private landlords need only fulfill the former)Significantly the Legislature has specifically authorized public-housing authorities to provide emergencyshelters transitional housing and supporting services to homeless families and individuals NJSA40A12A-16a(11)
We note that the Legislature enacted the Prevention of Homelessness Act of 1984 L 1984 c 180(codified at NJSA 5227D-280 to -287) in recognition of the fact that [i]t is both more economical andmore socially desirable to enable people to retain possession of their houses or apartments than to house them in hotel rooms or in other facilities intended for short-term occupancy NJSA5227D-281c That act authorized the Department of Community Affairs to administer the HomelessnessPrevention Program (HPP) which provides temporary assistance to families who are in danger ofbecoming homeless because they are without adequate funds for reasons beyond their controlNJAC 512-11(b) Among other forms of assistance the HPP provides for payment of up to threemonths rental arrears to prevent imminent eviction for nonpayment of rent NJAC 512-21(a) -23(a)-24(b) Assistance under the HPP is strictly temporary and is not available to families who will not beable to pay their shelter costs after the period of assistance has ended NJAC 512-21(g) -24(b)-(c)Furthermore in the event of a shortage of funds priority for assistance is to be given to severalcategories of persons including [h]ouseholds with children [that] face imminent breakup due tohomelessness and [s]ingle parent households NJAC 512-25(a)4 (a)5 Preference is also to begiven to households already in sustainable housing NJAC 512-25(b) The Emergency AssistanceProgram (EA) the HPP equivalent for families receiving public assistance echoes the goals of thePrevention of Homelessness Act The EA regulations for AFDC recipients state that [t]he goal of the EAshelterhousing program is to prevent homelessness NJAC 1082-510(b) To that end the EAregulations authorize payment of up to three months of back rent to prevent eviction whenever there isdocumentation of a pending eviction NJAC 1082-510(d)2
Because Little receives AFDC benefits she and her family apparently would have been eligible for EAbenefits had they become homeless through eviction by the Housing Authority See NJAC 1082-510(a) (d)2 The Authoritys effort to evict Little and her family presents the likelihood that twogovernmental agencies both charged with assuring that low-income families are housed in suitableaffordable housing would be working at cross-purposes On the one hand the Authority is attempting toevict a low-income tenant who although able to pay her arrears could not do so within the statutory time
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
decisions
USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
limit on the other hand in the event Little and her family were to become homeless the county welfareagency administering the EA program for AFDC recipientsin Morristown would be responsible for providing temporary housing for Little and her family and forassisting Little to secure affordable and suitable permanent housing NJAC 1082-510(e)2
In the past our courts have been responsive to the Legislatures goals in enacting statutes to aid thehomeless seeking to implement such legislation and to avoid the consequences of regulatory practicesthat impede the statutory objectives See LT v New Jersey Dept of Human Servs 134 NJ 304 321-25 633 A2d 964 (1993) Maticka v City of Atlantic City 216 NJSuper 434 452-54 524 A2d 416(AppDiv 1987) Consistent with those rulings the trial courts exercise of discretion to vacate thejudgment evicting Little reflected a pragmatic recognition that the States homelessness-preventionpolicies would be disserved by the eviction of a tenant in public housing who had demonstratedsatisfactorily her ability to fulfill her rental obligations We are satisfied that the trial court did not abuse itsdiscretion in vacating the judgment for possession
Our concurring colleagues agree that potential homelessness is a factor appropriately to be consideredby a trial court in exercising discretion under Rule 450-1 post at 295 639 A2d at 296 but insist thatfactor is entitled to as much weight in respect of tenants of private landlords as it is of tenants of housingauthorities We need not either contest or concede the point To the extent that a distinction can bejustified however we note that housing authorities as distinguished from private landlords are entrustedby the Legislature with the specific power to provide emergency shelters transitional housing andsupport services to the homeless NJSA 40A12A-16a(11) In that context one would expect a courtsdiscretionary authority under Rule 450-1 to be exercised somewhat more freely when the evictinglandlord is a public body charged with serving only low-income tenants and authorized by the Legislatureto provide assistance to homeless families
The nature of the exceptional relief afforded by Rule 450-1(f) requires courts to focus on equitableconsiderations in determining whether the specific circumstances warrant the unique remedy authorizedby the Rule Application of that subsection of the Rule to summary-dispossess proceedings is appropriateonly in exceptional circumstances and requires a trial court to weigh carefully all relevant evidence indetermining whether the specific grounds advanced to support relief under the Rule are sufficient tooverride the strong countervailing interest favoring finality of judgments We anticipate that the availabilityof relief under the Rule in summary-dispossess proceedings will be circumscribed and that the reservoirof discretion afforded by the Rule will be exercised only in those circumstances in which the courtsintervention is required to avoid an unjust result
The judgment of the Appellate Division is reversed
GARIBALDI J concurring
I agree with the Courts holding today that NJSA 2A42-106 of the Tenant Hardship Act which grantscourts the power to stay an eviction up to a maximum of six months does not preclude a court fromvacating a judgment of possession on equitable grounds pursuant to Rule 450-1 Likewise I agree withthe Court and emphasize here that vacating a judgment of possession on equitable grounds pursuant toRule 450-1 is an extraordinary remedy to be used sparingly and only under truly exceptional situationsAnte at 289 639 A2d at 293
My narrow disagreement with the majority stems from its wholly unnecessary discussion of thePrevention of Homelessness Act NJSA 5227D-280 to -287 and that Acts effect on the HousingAuthoritys public-policy responsibilities According to the majority the trial courts exercise of discretion tovacate the judgment evicting Little was valid in part because it reflected a pragmatic recognition that theStates homelessness prevention policies would be disserved by the eviction of a tenant in public housingwho had demonstrated satisfactorily her ability to fulfillher rental obligations Ante at 293 639 A2d at 295 More specifically the majority argues that thediscretionary ruling by the trial court to vacate the judgment of possession is bolstered by the fact thatfailure to do so would result in an unseemly and incongruous situation in which one public authority (theHousing Authority) would be seeking to evict Little while another (the Emergency Assistance Program)would be seeking to provide her with housing In effect the majority holds that tenants in public housinghave a better argument against eviction than do tenants in private housing
In the two relevant statutes addressing the eviction and dispossession of tenants the Legislature has notdistinguished between tenants in public housing and tenants in private housing The Anti-Eviction ActNJSA 2A18-611 to -6112 protects all tenants mdash both public-housing tenants and private-housingtenants mdash from eviction without good cause One of the enumerated statutory grounds for eviction isfailure to pay rent NJSA 2A18-611a The Legislature did not exempt public-housing tenants frompotential eviction for failure to pay rent nor did it say that the landlords of public-housing tenants shouldhave a greater burden than private landlords in seeking eviction on those grounds Similarly nothing inNJSA 2A42-1016 of the Tenant Hardship Act indicates a legislative intent to distinguish betweenpublic-housing and private-housing tenants for the purposes of summary dispossession
Although the possibility that a dispossessed tenant may become homeless is an equitable considerationthat a trial court should take into account in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 that possibility should be given exactly the same weight regardless of whether atenant is dispossessed by a private landlord or a public-housing authority I am as sympathetic to the
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
decisions
USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Google NewsGoogle News Archive
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
copy 2015 Justia Company Terms of Service Privacy Policy Contact Us
Get a free directory profile listing
120
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
plight of the homeless as the majority I am also as committed as the majority to allowing trial courts toconsider the possibility of homelessness in deciding whether to vacate a judgment of possessionpursuant to Rule 450-1 Howeverthe Legislature should strike the proper balance between providing public housing providing assistanceto dispossessed tenants and ensuring that tenants who fail to pay rent are subject to eviction Therelevant statutes do not distinguish between public-housing tenants and private-housing tenants neithershould this Court
Justice HANDLER joins in this concurrence
HANDLER and GARIBALDI JJ concurring in result
For reversal mdash Chief Justice WILENTZ and Justices CLIFFORD HANDLER POLLOCK OHERNGARIBALDI and STEIN mdash 7
COMMENT
Leaglecom reserves the right to edit or remove comments but is under no obligation to do so or to explain individual moderation
decisions
USER COMMENTS
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
Google ScholarGoogle BooksLegal Blogs
Google WebBing Web
Google NewsGoogle News Archive
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
copy 2015 Justia Company Terms of Service Privacy Policy Contact Us
Get a free directory profile listing
120
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
IVY HILL PARK SECTION FIVE INC A NEW JERSEY CORPORATION PLAINTIFF-APPELLANT vNARENDRA HANDA AND SAUNDRA HANDA HIS WIFE DEFENDANTS-RESPONDENTS
Superior Court of New Jersey Appellate Division
Argued November 8 1972
Decided November 28 1972
367 Before Judges LABRECQUE KOLOVSKY and MATTHEWS
Mr Robert Diamond argued the cause for appellant (Messrs Diamond and Pitman attorneys)
Mr Stanley Varon argued the cause for respondents (Newark Legal Services Project attorneys MrWalter M Mitchell on the brief)
PER CURIAM
Plaintiff instituted this summary action for recovery of premises under NJSA 2A18-53 subd b alleging
Justia rsaquo US Law rsaquo Case Law rsaquo New Jersey Case Law rsaquoNew Jersey Superior Court Appellate Division - Published Opinions Decisions rsaquo 1972 rsaquo Ivy Hill Park SectionFive Inc v Handa
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
Google ScholarGoogle BooksLegal Blogs
Google WebBing Web
Google NewsGoogle News Archive
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
copy 2015 Justia Company Terms of Service Privacy Policy Contact Us
Get a free directory profile listing
120
Ask Question
Ask a LawyerQuestion
Add details
Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
that defendants held over after a default in payment of rent The trial judge entered a judgment ofpossession in favor of plaintiff but ordered that issuance of the warrant of removal be stayed forapproximately 2 12 months until March 1 1972 At oral argument we were informed that defendantSaundra Handa was still in possession of the premises
Plaintiff appeals that portion of the judgment entered below which stayed the issuance of a warrant forpossession for approximately 2 12 months Its basis for appeal is that the trial court exceeded itsjurisdiction in its delay of the warrant of removal We agree that a jurisdictional question is raised since itis contended that the provisions of the controlling statute were not complied with Leachman v Kite 133NJL 240 241 (Sup Ct 1945)
The authority granted to a trial judge under NJSA 2A42-106 to stay the issuance of a warrant forpossession may be exercised under the plain language of the section only if the stay is conditioned on thepayment of past and future rent due to the landlord Of course if the rent is paid the action for dispossesswould terminate Saveriano v Saracco 97 NJ Super 43 (App Div 1967)
So much of the judgment of the Essex County District Court as stayed the issuance of the warrant forpossession is reversed
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Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New J
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
copy 2015 Justia Company Terms of Service Privacy Policy Contact Us
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120
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Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
copy 2015 Justia Company Terms of Service Privacy Policy Contact Us
Get a free directory profile listing
120
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Add details
Gregory G Diebold
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
Biography Present Position Director of Litigation Northeast New Jersey Legal Services Corp Jersey City New Jersey Education Boston College BA 1971 Seton Hall University School of Law JD 1974 Bar Admissions State of New Jersey amp US District Court (NJ) 1974 U S Court of Appeals for the Third Circuit 1977 US Supreme Court 1981 Reported Cases Mr Diebold has been counsel in over thirty reported cases including
Cohen v delaCruz 523 US 213 (1998) which he argued in the United States Supreme Court Chase Manhattan Bank v Josephson
135 NJ 209 (1994) and Housing Auth of Jersey City v Jackson 749 F Supp 622 (DNJ 1990) Other Activities President Hudson County Bar Association Member District Ethics Committee (1988-1991) Adjunct Professor Seton Hall U School of Law (1987-1993)
Lecturer ICLE Landlord-Tenant and Foreclosure practice (1989- Present) Winner of NJICLE Distinguished Service Award Member Supreme Court Committee on Practice in the Special Civil Part (1977-2012)
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
Tracey Goldstein tgoldsteinfrkblawcom Tracey Goldstein is a member of Feinstein Raiss Kelin amp Booker LLC and concentrates her practice in real estate litigation She has handled matters in the New Jersey State and Federal Trial Courts in the Appellate Division and in the New Jersey Supreme Court She regularly represents property owners managers and developers of real estate
Ms Goldstein serves on the Board of Directors of the New Jersey Apartment Association (NJAA) and counsels NJAA on emergent landlord tenant issues and key legislation She has presented seminars on a variety of issues including fair housing bedbugs and residential and commercial evictions She has served as a panelist at seminars presented by NJAA the New Jersey Institute of Continuing Legal Education the Division on Civil Rights Hudson County Bar Association New Jersey Affordable Housing Management Association and the Property Owners Association
Ms Goldstein was admitted to the New Jersey Bar in 1994 and the New York Bar in 1995 She received her BA from the State University of New York at Albany in 1990 and her law degree from Western New England School of Law in 1994
DISTINCTIONS
Recognized as one of The Best Attorneys of 2013 by the Mid-Atlantic Real Estate Journal Featured in 2008 in the New Jersey Law Journals 40 Under 40 List Selected for inclusion in 2006 and 2007 as a New Jersey Rising Star Selected for inclusion in 2008 2009 2010 New Jersey Super Lawyers
PUBLISHED AND UNPUBLISHED OPINIONS
Salem Lafayette URA LP v Tami LaSane A-1962-11T1 (App Div 2013)
3519-3513 Realty LLC v Law 406 NJ Super 423 (Law Div 2009)
Maglies v Estate of Guy 193 NJ 108 (2007)
Hodges v Sasil Corp 189 NJ 210 (2007)
Kulig v Beer 2007 WL 17432 (App Div 2007)
Pasquince v Brighton Arms Apartments 378 NJ Super 588 (App Div 2005)
RECENT PUBLICATIONS
Companion Animals What is an Owners Obligation NJ Apartment Industry Magazine March 2013
NJ Courts Expand Protection to Occupants of Residential Apartments NJ Apartment Industry Magazine OctoberNovember 2009
Creating a new category of tenants New Jersey Lawyer March 31 2008
Landlord Tenant Law Key Issues and Recent Changes NJ Apartment Industry Magazine JuneJuly 2008
Rent Control Exemption for New Construction NJ Apartment Industry Magazine August 2007
Source of Income Formulating Financial Criteria NJ Apartment Industry Magazine AprilMay 2007
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
Navigating Discrimination Claims through the Division on Civil Rights NJ Apartment Industry Magazine OctoberNovember 2006
A permissible must do for landlords New Jersey Lawyer April 3 2006
MEMBERSHIPS
Essex County Bar Association
New Jersey Apartment Association
Property Owners Association
New Jersey Affordable Housing Management Association
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
Hon Lawrence Maron was appointed to the bench in July 2011 He currently sits in both Civil Division and Special Civil Part in Passaic County Judge Maron previously sat in Civil Division Hudson County Prior to his appointment Judge Maron served as the Executive Director of the New Jersey Institute for Continuing Legal Education
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
Eilleen Ingram-Willis Esq is a civil litigation attorney focusing her practice on housing law
administrative law and governmental entity representation She is the first in-house counsel for
the Jersey City Housing Authority and represents the housing authority in all tenancy-related
matters involving its residents and participants within its federal subsidized Housing Choice
Voucher program Prior to her joining the housing authority she was a staff attorney at Central
Jersey Legal Services where she represented clients in eviction proceedings and in
administrative appeals through the Office of Administrative Law and the Department of
Labor Eilleen graduated from the University of Pennsylvania where she received her BA cum
laude in 2001 She obtained her Juris Doctor degree from Rutgers University School of Law ndash
Newark in 2004
LLT Trials cover
Judge Rosenberg summary of law
summary of miah
Notice Requirements chart
Summons and complaint
MARINI v IRELAND _ Leaglecom
leaglecom
MARINI v IRELAND | Leaglecom
BERZITO v GAMBINO _ Leaglecom
leaglecom
BERZITO v GAMBINO | Leaglecom
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
cornelledu
DEPARTMENT OF HOUSING AND URBANDEVELOPMENT V RUCKER
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE _ Leaglecom
leaglecom
HOUSING AUTHORITY OF TOWN OF MORRISTOWN v LITTLE | Leaglecom
Ivy Hill Park Section Five Inc v Handa _ 1972 _ New Jersey Superior Court
justiacom
Ivy Hill Park Section Five Inc v Handa 1972 New Jersey Superior Court Appellate Division - Published Opinions Decisions New Jersey Case Law New Jersey Law US Law Justia
