JOSEPH PERRETTA v. KIMBERLY WYLES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3730-08T23730-08T2

JOSEPH PERRETTA,

Plaintiff,

v.

KIMBERLY WYLES,

Defendant/Third-Party

Plaintiff-Respondent,

v.

HOUSING AUTHORITY OF THE CITY

OF CAMDEN,

Third-Party Defendant/

Appellant.

_______________________________

 

Argued April 20, 2010 - Decided

Before Judges Skillman and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Camden County,

Docket No. L-634-08.

Steven A. Ragland argued the cause

for appellant.

Sonia L. Bell argued the cause for

respondent (South Jersey Legal

Services, Inc., attorneys; Ms. Bell

on the brief).

PER CURIAM

This case originated as a summary dispossess action for nonpayment of rent filed by Joseph Perretta, the owner of a residential property where Kimberly Wyles and her children reside. Wyles filed a responsive pleading and a third-party complaint against the Housing Authority of the City of Camden (Housing Authority) seeking recognition of her status as a "remaining member" after her father's death and for continuation of the Section 8 subsidy.

The Special Civil Part transferred the case to the Law Division, where the court entered judgment of possession for nonpayment of rent against Wyles but stayed the execution of the warrant of removal pending the outcome of a bench trial on the claims against the Housing Authority. At the end of that trial, the court found that Wyles's leasehold was not terminated by her father's death and that her status as a minor at the time of his death did not automatically disqualify her from participating in the Section 8 housing program. The court also found that the Housing Authority: (1) had an obligation to respond to Wyles's request for remaining member status; (2) wrongfully denied Wyles's request to be recognized as a "remaining member of a tenant family"; and (3) wrongfully terminated her Section 8 housing voucher. The court directed the Housing Authority to complete the recertification process for Wyles and place her into the Section 8 housing voucher program if she so qualified.

The Housing Authority now appeals from the trial court's order memorializing this decision. We affirm. The following facts will inform our discussion of the legal issues raised by the parties.

Kimberly Wyles's father, Percival Wyles, entered into a residential lease agreement with Perretta for a row home apartment from February 2, 2005, until February 1, 2006. The rent was $925.00 per month. Although Percival listed himself as the only "tenant," he also indicated that three of his children shared the apartment as "occupants." Percival resided in the apartment with his daughter, Kimberly, his other daughter, Alisha, and his granddaughter, Felicia Wyles. While living in the apartment with her father, Kimberly Wyles gave birth to two children.

Percival continued to reside in the apartment until his death in September of 2007. Wyles, who was seventeen years old at the time of her father's death, continued to reside in the apartment with her children.

The lease agreement provided that:

Landlord must give Tenant at least 60 days notice before the lease term ends. If any terms and conditions are changed, Tenant has 30 days from the date of receiving the notice to decide to accept or not accept the changes . . . If Tenant does not give the required notice within the 30 day period, the lease renews under the new terms and conditions given by the Landlord . . . This lease automatically renews on a month-to-month basis if not ended or changed by either party with a rent increase of 3 percent.

By letter dated September 26, 2007, the Housing Authority notified the "Family of Percival Wyles" that its rental assistance would terminate on October 31, 2007. According to Wyles, upon receipt of this notice, she attempted to contact the Housing Authority on two separate occasions to request "remaining member status" and to request a recertification hearing regarding the Section 8 rental subsidy. Geraldine Taylor, a "Family Self-Sufficiency Coordinator" employed by the Housing Authority, testified that she never received any communications from the Wyles family after Percival's death.

By letter dated October 18, 2007, an attorney representing Wyles sent letters to the Housing Authority to "formal[ly] request . . . remaining member status under the Section 8 program" and to "arrange a time when the necessary recertification paperwork [could] be completed." The Housing Authority did not respond to any of these requests and terminated rental subsidy payments for Wyles's apartment on October 31, 2007.

After October 31, 2007, neither Wyles nor the Housing Authority paid any rent to Perretta. As a result, Perretta filed a summary dispossess action seeking to evict Wyles for nonpayment of rent. During the pendency of this action, Wyles continued to reside in the apartment and gave birth to a third child.

Against these facts, the Housing Authority argues that the trial court erred in finding that Wyles was entitled to a recertification hearing regarding her "remaining family member status" and potential entitlement to a Section 8 rental subsidy. According to the Housing Authority, Wyles was not entitled to a recertification hearing because she did not have a leasehold interest in the apartment independent of her father. In addition the Housing Authority argues that because Wyles was a minor at the time of her father's death, and not otherwise emancipated, she could not prevent the termination of the Section 8 housing voucher and could not contract for a lease agreement with the landlord. As a fall-back argument, the Housing Authority also contends that Wyles's failure to pay rent renders her eligibility for Section 8 subsidy moot because she is no longer entitled to the protections of the Anti-Eviction Act.

Wyles argues that the trial judge correctly found that she was entitled to recertification of the Section 8 housing voucher because she resided with her father from the inception of his leasehold interest until his death, thus making her eligible for a Section 8 subsidy as a "remaining tenant family member." Wyles further argues that the Housing Authority: (1) was required to ascertain her status in this respect; (2) violated her federal due process rights by ignoring her repeated requests for a hearing; and as a consequence (3) wrongfully terminated her subsidy. According to Wyles, her minority status at the time of her father's death is irrelevant because the Section 8 voucher program allows a minor child to continue to receive housing aid. Finally, she argues that her decision to not pay a share of the rent does not affect her right to have the Housing Authority determine her entitlement to a Section 8 subsidy.

At trial, Judge Meloni found that the Housing Authority was obligated to respond to Wyles's request for remaining member status. He thus ordered the Housing Authority to "complete the recertification process for Kimberly Wyles, and if she qualifies[,] reinsert her into the Section 8 Housing Choice Voucher Program where she would have been in 2007." Judge Meloni gave the following explanation in support of his ruling:

The underlying issue here is whether the Camden Housing Authority complied with its federal mandate and its own procedure[s] in the handling of Ms. Wyles'[s] request for remaining member status.

The death of Mr. Wyles did not terminate the lease, or necessarily, the entitlement to [a] Section 8 voucher. 24 C.F.R. 982.309 indicates that the initial term of the lease must be for, at least, one year. This lease between Mr. Wyles and Mr. Perretta satisfied that requirement and was in writing[.] . . . [When] Mr. Wyles died . . . the lease [ended], or at [a minimum], the lease would convert to a month to month. In fact, the Camden Housing Authority paid the subsidy until October 31, 2007. There was no eviction action on that lease until a couple of months later.

The lease recognized that the occupants included one adult and three children. Presumably, Kimberly Wyles was one of the three children, although the lease does not specify the names of the persons who were occupants . . . Kimberly Wyles has shown that she was, continuously, in residence there and that the landlord knew of her presence and acquiesced [to it].

Although I granted [Mr.] Perretta an order for eviction over one year after Mr. Wyles'[s] death, the outcome [of that proceeding] may have been different if Kimberly Wyles had been granted a remaining member status and the subsidy [from the Housing Authority had] continued.

[Additionally,] 24 C.F.R. [982.552] recognizes that death is not a cause for termination, as did Ms. Taylor of the Housing Authority, at the time of her testimony.

[Nevertheless,] 24 C.F.R. [982.308] does require a voucher recipient to have legal capacity.

All the parties agree that at the time of Mr. Wyles'[s] death Kimberly Wyles was about . . . three months short of her 18th birthday. 24 C.F.R. 982.310 (sic) outlines the procedure [to be followed] when a person is a minor. [To be considered a] remaining member of a tenant family, the person must have, previously, been approved by the Housing Authority to be living in the unit in order to obtain the remaining member status. [Percivel] Wyles'[s] application for re-certification, specifically, does name Kimberly Wyles.

In order for a minor child to continue to receive assistance as a remaining family member, the court would have to emancipate the child[.] [Alternately,] the Camden Housing Authority would have to verify that social services or the juvenile court [has] arranged for another adult to be brought into the unit. This is part of the Camden Housing Authority's administrative plan. Kimberly Wyles was never advised of what she would have to do[,] despite the fact that she attempted herself by telephone [to find out], which basically went ignored[.] [She] then [attempted through] her attorney [to find out the required action], [via] the letter to general counsel and the director of the Section 8 [program,] requesting remaining member status and the scheduling of an appointment to complete that re-certification paperwork, which never occurred.

So it seems to me that Kimberly Wyles, by definition, could have qualified for remaining member status. The fact that her father had died was not grounds in and of itself for termination of the voucher, nor [was] the fact that she was under the age of majority[.] . . . [T]hat would not automatically disqualify her under the Camden Housing Authority's own administrative procedure.

Defendant, Kimberly Wyles, cites a number of statutes and regulations that . . . define family . . . Although I don't think that the Camden Housing Authority would be obligated to have . . . an appointment [scheduled] for her[,] I think that they were obligated to reply to her request for remaining member status. To not respond resulted in the termination of the voucher without due process or even an articulated reasoning. The letter of September 26th doesn't indicate a reason [for termination] but, merely, states that the participation would be terminated.

. . . .

Having decided that the Camden Housing Authority wrongfully denied . . . Kimberly Wyles . . . remaining member status and terminated the voucher without due process[, t]he question is what would be the appropriate remedy. And I think that the appropriate remedy would be to place her back into the position that she would've been in in September 2007 to the extent that is possible.

Accordingly, I will direct that the Housing Authority cooperate with Kimberly Wyles in completing an application for re-certification. And if she meets all necessary qualifications[,] she should be reinstated into the program.

We start our analysis by reaffirming that "as a general rule, in the absence of a covenant otherwise providing, a lease is not terminated by the death of the lessee." Gross v. Peskin, 101 N.J. Super. 468, 469 (App. Div. 1968). Under the common law, "upon a tenant's death, the tenancy passes to her estate." Maglies v. Estate of Guy, 193 N.J. 108, 120 (2007). This common law principle applies to month-to-month leases, with the condition that the landlord may still terminate the lease "by giving one month's notice to the estate's legal representatives." Ibid.

In Maglies, the Court addressed whether a child-occupant of a deceased month-to-month tenant can invoke the protections of the Anti-Eviction Act and remain in a Section 8 subsidized unit after the passing of the parent-tenant who occupied the dwelling. Maglies, supra, 193 N.J. at 120. The Court concluded that

a functional co-tenant--one who can show that she has been continuously in residence; that she has been a substantial contributor toward satisfaction of the tenancy's financial obligations; and that her contribution has been acknowledged and acquiesced to by her landlord--is entitled to invoke the protections of the Anti-Eviction Act[; this ruling] does not upset the delicate balance of tenants' and landlords' rights.

[Id. at 126.]

In reaching that conclusion, the Court further explained that:

For an entire family to be eligible for a Section 8 voucher, each household member must be low income or very low income. As such, each member of a Section 8 household is vulnerable to homelessness and family disruption if he or she cannot obtain affordable housing. It would not be consistent with the [Anti-Eviction] Act's purposes to treat differently a surviving Section 8 family member, who may be--in substance if not in form--the functional equivalent of a co-tenant.

The [Anti-Eviction] Act's chief purpose is to keep residential tenants in intact homes and avoid the imposition of personal dislocation so long as the tenancy's financial and other responsibilities are met. Such purposes must be sensibly advanced, particularly when it is an eviction from publicly supported housing that is at stake.

[Id. at 125 (internal citation omitted).]

Thus, as the surviving occupant of a subsidized unit, Wyles inherited the tenancy upon her father's death and was entitled to claim the Section 8 subsidy. Although her subsequent failure to pay rent subjected her to eviction, that issue is inconsequential here because Judge Meloni correctly recognized that Wyles's status as a Section 8 recipient was the true issue in controversy. The rent arrears would be addressed once this threshold issue was legally settled.

We next address the question of whether Wyles's minority status at the time of her father's death affects her right to a Section 8 subsidy. Under the Housing Authority's regulations,

In order for a minor child to continue to receive assistance as a remaining family member:

The court has to have awarded emancipated minor status to the minor, or

The [Camden Housing Authority] has to have verified that social services and/or the Juvenile Court has arranged for another adult to be brought into the assisted unit to care for the child(ren) for an indefinite period.

[(Emphasis added).]

The Housing Authority's administrative plan also contemplates that a minor may receive a subsidy after the breakup of his or her family.

With these principles in mind, we conclude that the Housing Authority failed to follow both federal regulations and its own internal procedures by automatically disqualifying Wyles from continuing to receive the Section 8 housing voucher. Wyles had the "legal capacity" to enter into this lease agreement because under New Jersey law a minor's contract for a necessity such as housing may be enforceable. See Bancredit, Inc. v. Bethea, 65 N.J. Super. 538, 548-49 (App. Div. 1961); see also La Rosa v. Nichols, 92 N.J.L. 375, 380 (E. & A. 1918) (enforcing a contract entered into by a minor in order to avoid unjust enrichment).

Although factually distinguishable, Carteret Housing Authority v. Gilbert, 301 N.J. Super. 109 (App. Div. 1997), is the case most responsive to the question of how Wyles's minority status affects her right to receive a Section 8 subsidy. In Carteret, the local Housing Authority and the tenant had a month-to-month tenancy arrangement with a Section 8 housing subsidy. Id. at 110. The named tenant's daughter, Samantha, also resided in the subsidized apartment. Id. at 110-11. At some point during the leasehold, the mother was incarcerated and failed to pay her monthly rent; the local Housing Authority moved to evict the mother for nonpayment. Ibid.

Samantha, who was seventeen years old at the time, occupied the unit with her two-year-old child; Samantha was listed as an "occupant" on the lease agreement but was not a named "tenant." Ibid. When Samantha learned of the warrant of removal, she wrote a letter to the trial court seeking a stay and a hearing. Id. at 110. The trial court subsequently vacated the judgment of possession. Ibid. On appeal, we framed the issue as follows: "may a public housing authority compel a member of a tenant's family who is under age to move from an apartment, because no adult resides there?" Id. at 109.

In addressing the question, we first noted that "[t]here appears to be no legislative authority which establishes any minimum age limit for the occupants of federally-subsidized housing." Id. at 112. We thus determined that Samantha qualified as a "remaining member of a tenant family" as outlined in 42 U.S.C.A. 1437a(b)(3)(A) and that "no federal or state statute . . . places any age limit, or minimum age requirement, on the 'remaining member of the tenant family.'" Ibid. Finally, we noted that any concern the local Housing Authority had about entering into an agreement with a minor "may be addressed and resolved productively by having Samantha obtain a decree of emancipation." Id. at 113.

Similarly here, Wyles resided in the apartment with her father from the inception of the lease agreement until his death in September of 2007. She was only a few months short of reaching majority when her father died. She attempted to assume the responsibility and benefits of the lease and the Section 8 voucher by contacting the Housing Authority to request a reevaluation of her entitlement to a Section 8 subsidy. Consistent with our holding in Carteret, Wyles was entitled to obtain a Section 8 subsidy on her own. The fact that she is now over the age of eighteen eliminates any concerns the Housing Authority may have about her legal competence to enter into a contract. She is entitled to a fair determination as to whether she qualifies for a Section 8 subsidy.

Affirmed.

 

(continued)

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A-3730-08T2

July 23, 2010