The Leasehold Survivorship Rights of a “Functional Co-Tenant”

By Thomas S. Garlick, Esq. of Ehrlich, Petriello, Gudin & Plaza, P.C.

In certain circumstances, the survivor of a deceased tenant may be entitled to continue in occupancy of your apartment as a tenant, as well as to continued financial assistance under federal and state programs, such as Section 8.  The New Jersey Supreme Court addressed this issue in 2007 in the matter of Robert Maglies v. Estate of Bertha Guy.

The issue addressed by the Court was whether New Jersey‘s Anti-Eviction Act allowed the eviction of a deceased-tenant’s daughter.

Until the time of her death, Bertha Guy resided in the same apartment in New Brunswick for approximately 30 years.  In 1991, she qualified for a voucher issued through the federal Section 8 program.  At the same time, Robert Maglies, Guy’s landlord, entered in a Housing Assistance Payment (HAP) contract with the State Department of Community Affairs, under which the program paid a portion of the monthly rent directly to Maglies.  In 2001, Guy’s adult daughter, Sherri Jennings, moved into her mother’s apartment, with consent from Maglies.  Both parties entered in a new lease agreement that continued to list Guy as the tenant and recognized Jennings under the title, “Members of Household.”  Jennings, who was mentally disabled, received Social Security benefits.

When the parties entered into a new lease, Maglies entered into a new HAP contract which considered Jennings’s social security income as contributing to the household’s income for Section 8 purposes.  Similar to the lease agreement, the HAP contract listed Guy as the tenant and Jennings as a “Household” member.

On March 30, 2005, Guy died.  Jennings, the sole remaining occupant of the apartment, failed to timely pay April 2005 rent.  However, when she later attempted to tender Guy’s share of the rent to Maglies, he refused, asserting, among other reasons, that she was not a named tenant to whom he had rented the apartment.  As a result of Jennings’s failure to pay rent on time, Maglies brought an action against Guy’s estate for summary dispossession for nonpayment of rent.

The trial court held that Jennings could remain in possession of the apartment and ordered Maglies to accept rental payments from her.  In support of its decision, the trial court stated that “Jennings was a bona fide remaining member of the tenant family at the time Ms. Guy died” and a “remaining family member’s occupancy rights are not terminated by the death of any member.”

On appeal, the Appellate Division reversed the trial court’s decision.  The Appellate Division stated that Section 8 does not provide an occupant with the ability to succeed to the tenancy of another.  With such a right absent from the federal legislation, the Appellate Division found that such a right should not be implied.  Finally, the Appellate Division found that New Jersey’s Anti-Eviction Act did not apply to Jennings, as she was not an assignee, under-tenant or legal representative of her mother—categories of people protected under the New Jersey Statutes 2A:18-61.6.

The Supreme Court was required to resolve whether the federal legislation controlling the Section 8 program or the state Anti-Eviction Act prohibits the landlord from evicting an occupant family member after the death of the tenant, a Section 8 recipient.

Under the Section 8 program, the Court held that the program’s purpose is to provide funds and a vehicle to facilitate the disbursement of those funds to low-income families.  The Court continued by reasoning that the statutes governing the Section 8 program do not explicitly permit a family household member to succeed to the premises in which he or she resided when the family member was not a named tenant on the lease or HAP contract.  Further, citing a prior decision by the Virginia Supreme Court, the Court held that the federal legislation was not intended to preempt state law.  Because the parties had entered into a lease, the Court decided that state law would determine whether Jennings was entitled to continued occupancy.  The Court then turned its analysis to the Anti-Eviction Act.

In addressing whether the Act’s protections extend to a financially contributing household member, when the named tenant of a Section 8 household dies, the court held that the Legislature intended the Anti-Eviction Act to “protect blameless residential tenants, especially those vulnerable to homelessness, family disruption and becoming a strain on the community’s resources.”  Because the Act’s chief purpose was to keep tenants in housing and avoid the burden of personal dislocation so long as certain financial responsibilities were met, the Court reasoned that because Jennings’ was continuously in residence, was a substantial contributor toward satisfaction of the tenant family’s financial obligations, and her contribution had been acknowledged and consented to by her landlord, she was in essence a “functional co-tenant,” entitled to continue in occupancy.  In other words, because Jennings’s landlord had acquiesced to her residing in the premises and she was a financial contributor and factor under the Section 8 program, she could not be evicted solely because the named tenant on the lease and HAP contract had died.  Nevertheless, the Court made the point that their decision did not address “all occupants but the specific factual circumstances of this Section 8 household.”

As a result of this decision, landlords must understand the potential repercussions of their decision to permit additional occupants to reside with Section 8 family tenants.  It is important to realize that individuals who are added to a lease or are authorized to reside in a unit may have a right to continued occupancy of the premises after the death of the named tenant.  Therefore, a landlord should take seriously a tenants request to add additional occupants to a unit and thoroughly evaluate the background, especially financial, of the prospective new occupant and understand how the occupant will factor into the family’s financial condition.  Further, because the Supreme Court analyzed the issues under state law, the Maglies decision may not be strictly limited to subsidized tenants.  By deciding the case in such way, the Court left unanswered how their decision would apply to authorized occupants that meet the three factors provided by the Court in unsubsidized rental units.  However, it is clear that each case is fact sensitive and would be analyzed by the courts on a case-by-case basis.

Thomas S. Garlick, Esq. is an associate with the law firm of Ehrlich, Petriello, Gudin and Plaza, P.C., with its main office in Newark, New Jersey and on the internet at www.epgp-law.com.  He can be reached at (973) 643-0040 ext. 126 or by email at tgarlick@epgp-law.com.  The information you obtain from this article is not to be considered legal advice.  You should consult a qualified attorney to discuss any particular matter.