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NJ Trial Court Rejects Landlord’s Eviction of Section 8 Tenant for Failure to Serve Public Housing Authority With Default Notice

Eviction Section 8 Housing Tenant NJEVICTION SECTION 8 TENANT NJ

In a published decision issued on March 30, 2015, a Union County, New Jersey trial judge vacated the eviction of a Section 8 residential tenant finding that the landlord failed to serve a required pre-lawsuit default notice on the public housing authority responsible for subsidizing the tenant’s rent.  Winns v. Rosado, Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. LT-9188-14.

In this case the landlord sought to evict his Section 8 tenant for non-payment of rent, destruction to the premises, and allowing other families to occupy the unit and basement of the property.  Prior to filing the eviction suit the landlord served the tenant with a “cease and desist” notice which detailed the tenant’s various lease defaults and informed the the tenant that the property manager had secured the basement to ensure that no one entered it.  The notice went on to state: “please be informed that this is our final request for you to adhere to our simple requests which will result in a better quality of life for your family and neighbors. If you do not comply we will be forced to exhaust our legal rights to remove you from the unit.”

The tenant failed to appear on the trial date and the court entered judgment in possession in the landlord’s favor.  Thereafter, the landlord obtained a writ of possession – the document required to physically evict a tenant in New Jersey.  About a month after the judgment was entered the tenant’s Legal Aid counsel filed an emergent application to vacate the judgment, dismiss the underlying Complaint, and quash the warrant of removal.  Among other arguments, the tenant claimed that the landlord did not comply with the notice provisions applicable to Section 8 housing tenants due to his failure to serve the cease and desist notice upon the Public Housing Authority as required under federal law, specifically 24 C.F.R. § 982.310(e)(2)(ii).

Section 8 of the Housing Act of 1937 (42 U.S.C. § 1437f), often called Section 8, authorizes the payment of rental housing assistance to private landlords on behalf of low-income households in the United States.  The U.S. Department of Housing and Urban Development manages the Section 8 programs. A landlord who leases property to a Section 8 tenant must comply with the U.S. Department of Housing and Urban Development (“HUD”) lease addendum which requires the landlord to serve the Public Housing Authority with an eviction notice at the same time the landlord notifies the tenant.

Because the landlord in this case failed to serve the Public Housing Authority with the eviction notice, the Court granted the tenant’s application by vacating the judgment and dismissing the landlord’s Complaint.  Citing prior precedents where New Jersey courts dismissed similar landlord claims for failure to comply with federal notice provisions applicable to subsidized tenants, Housing Authority of the City of Newark v. Raindrop, 287 N.J. Super. 222 (App. Div. 1996), and Riverview Towers Associates v. Jones, 358 N.J. Super. 85, 87 (App. Div. 2003), the trial court concluded that the defective notice deprived the court of subject matter jurisdiction to grant the landlord any relief.  Accordingly, the court ruled in favor of the tenant and dismissed the Complaint without prejudice.

Because the dismissal is without prejudice, however, if the tenant’s defaults persist the landlord could serve a new eviction notice on both the tenant and the Public Housing Authority and re-file a new lawsuit.  In any event, the tenant won a temporary reprieve from eviction.

Admitted to NJ Bar in 1990, NY Bar in 1991. Former Judicial Law Clerk to Honorable Peter Ciolino, Assignment Judge, Superior Court of New Jersey, Bergen County. Member & Barrister: Daniel J. Moore Bankruptcy Inn of Court Member & Barrister: Morris Pashman Inn of Court Member: Bergen County Bar Association NJ Superlawyer - 2008, 2009, 2010, 2011, 2012, 2013 Nominated for inclusion in Best Lawyers of America Member: Litigation Counsel of America, Trial Lawyer Honorary Society
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