SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2027-19

NC COMMONS 2016 U.R., LLC,

Plaintiff-Respondent,

v.

RAYMOND KELLY,

Defendant-Appellant.

_____________________________

Submitted February 1, 2021 – Decided March 16, 2021

Before Judges Rothstadt and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. LT-022327-19.

Rutgers Law School Civil Justice Clinic, attorneys for 

appellant (Victor Monterrosa and Norrinda Brown 

Hayat, of counsel and on the briefs; Akua Dawes, 

Kamaria Guity, Sabah Abbasi, Jaedon Huie, admitted 

pursuant to Rule 1:21-3(b), on the briefs).

The Law Office of Jeffrey R. Kuschner, attorneys for 

respondent (Lindsay R. Baretz, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-2027-19

In this residential tenancy action, we address when to fix the effective date 

for a reduction in rent for a tenant whose rent is subsidized by a federal program

and who experiences a reduction in income. For the reasons stated in this 

opinion, we hold that where an interim recertification of income is completed, 

the effective date under federal regulations is the date of the action that caused 

the interim recertification, such as a tenant's loss of employment, even if the 

tenant delays reporting the decrease in income to his or her landlord.

The tenant, defendant Raymond Kelly, appeals from the Special Civil 

Part's October 30, 2019 judgment of possession that was entered after the trial 

court determined there was unpaid rent owed by defendant to his landlord, 

plaintiff NC Commons 2016 U.R., LLC, under a lease that required his rent to 

be aligned with his income because he participated in a federal rent subsidy 

program. On appeal, defendant contends that the trial court did not correctly 

calculate his rent in accordance with federal law and that it "erred" in 

determining that rent was legally due and owing under the Anti Eviction Act, 

N.J.S.A. 2A:18-61.1 to -61.12, because defendant violated the applicable federal 

regulations by not reducing his rent retroactive to the first of the month after he 

experienced a reduction in his income. 
3

A-2027-19

Defendant, a 65-year-old disabled senior citizen, rented an apartment from 

plaintiff in 2017 at its building located in Newark. There are 376 units in 

plaintiff's building. All of its tenants participate in subsidy programs. For that 

reason, recertifications of program eligibility and income are performed 

annually for all tenants to ensure their rent is limited to thirty percent of their 

income. The federal government pays the balance of approved market rent.

1

 As

discussed in more detail below, because a tenant's rent is tied to his or her 

income, the program required tenants to report, among other things, any increase 

in their income during their leases' term, which would then trigger a 

recertification process to determine whether they were still eligible and if so, to 

calculate a new rent based on the additional income.

Prior to becoming unemployed in February 2019, defendant had worked 

as a construction worker through a temporary employment agency. In the fall 

of 2018, he completed the recertification process and based on his verified 

1

 As defendant's counsel explained, defendant participated in the Section 8 

housing choice voucher program. That program "provides financial assistance 

to eligible individuals so that they may rent privately owned housing. An 

individual deemed eligible for Section 8 housing assistance is issued a housing 

choice voucher which verifies eligibility for assistance and that money is being 

set aside to assist the individual with paying his or her rent." Pasquince v. 

Brighton Arms Apts., 378 N.J. Super. 588, 591 n. 1 (App. Div. 2005). 
4

A-2027-19

income his monthly rent was fixed at $681, effective December 1, 2018 as stated 

in his one-year lease with plaintiff. 

Defendant was employed for most of 2018, but at the time defendant 

renewed his lease in 2018, he had been unemployed for two months and was 

relying solely on his social security disability benefits for income. Thereafter,

defendant returned to work on a temporary basis and remained employed 

through February 2019. He stopped working in February 2019 but received 

compensation from his employment through March 2019. Afterward, he only 

had his social security disability income to rely upon. 

In September 2019, as also discussed in more detail below, defendant 

underwent his annual recertification and simultaneously an interim 

recertification because he advised plaintiff that he had stopped working in 

February 2019 due to his medical issue. Based on that information, plaintiff 

recalculated defendant's rent and effective October 1, 2019, it was reduced to 

$252 per month. At the time, defendant was in arrears in the payment of his 

prior rent for approximately seven months.

Prior to plaintiff filing its complaint in this action, on several occasions 

during 2019, defendant had conversations with representatives of plaintiff in 

which he stated that he was having financial difficulty and did not "have the 
5

A-2027-19

money" due to funeral expenses he was incurring for his late brother. During 

those conversations, defendant never stated that he was no longer working nor 

did he request an interim recertification.

Because defendant had not paid his rent on multiple occasions when due, 

prior to his recertification, on July 25, 2019, plaintiff filed its complaint2in this 

action seeking possession of the premises. Evidently,3the parties went to court 

in September 2019, and trial was scheduled for October 30, 2019. Before the 

parties returned to court, and still in September, defendant met with plaintiff's 

representative to compile paperwork for his annual recertification. They 

handled his interim recertification at the same time. That process resulted in 

defendant's rent reduction effective the first of the month following 

recertification, which was October 1. 

Although the parties resolved the issue of defendant's rent going forward, 

by the new trial date they had not resolved the alleged outstanding rent. Two 

days before the scheduled trial date, defendant filed a motion to dismiss the 

2

 Contrary to the requirements of Rule 2:6-1(a)(1), defendant has not provided 

us with a copy of the pleading in his appendix. 

3

 We reach this conclusion based upon the undisputed trial testimony of 

plaintiff's representative and defense counsel's statements at trial.
6

A-2027-19

complaint based upon plaintiff's alleged violation of federal law and regulations 

governing defendant's tenancy.4 

At trial, the court first addressed defendant's motion. After considering 

the parties' arguments and citing to Housing Authority of Passaic v. Torres, 143 

N.J. Super. 231 (App. Div. 1976), the trial court acknowledged that a landlord 

subject to the federal regulations could not seek from a tenant rent that does not 

comply with the regulations because it is not "legally due and owing." It then 

concluded that it could not determine whether the rent claimed by plaintiff was 

due and owing until it had heard the testimony of the parties, so the matter 

proceeded to trial.

During the trial, plaintiff's representative Geraldine Bruce testified as did 

defendant. Bruce, who was the assistant property manager for plaintiff, testified 

to the rent owed and as to the manner that plaintiff addressed recertification of

tenants under the federal program. According to Bruce, plaintiff typically 

started to speak to tenants about the recertification process when they come in 

to pay their rent in advance of a new lease term. And, in anticipation of those 

4

 Here, again, contrary to Rule 2:6-1(a)(2), defendant has not provided us with 

a copy of the motion or any supporting submissions. Because the court's 

decision referred to the motion to dismiss, it should have been included. R. 2:6-

1(a)(2). 
7

A-2027-19

discussions, plaintiff sends notices to tenants beginning "one hundred twenty 

days in advance," and thereafter ninety, sixty and thirty days "before its done." 

Sixty days before, plaintiff would seek to secure employment verification 

through its service provider in anticipation of recertification. 

As Bruce explained, the recertification is typically "constrained to the six 

pay periods prior to the recertification" and for that reason "[t]hey used the last 

six pay stubs." Ultimately the tenant's rent is calculated by "a certified 

occupancy specialist" who is "certified by the federal government to calculate 

the tenants rent." The rent is then approved by the Housing and Mortgage 

Financing Agency (HMFA). And, upon receipt of the certification or approval,

a letter is sent notifying the tenant and requesting that they come in to sign the 

lease. She explained typically when a tenant requests an interim recertification, 

plaintiff conducts the same employment verification and reviews submissions 

made by the tenant demonstrating their income as verified by their employers 

confirming their income or stating that the effective date of their termination or 

change in hours of employment. 

This was the procedure that she followed with defendant leading to the 

execution of the December 2018 lease. In anticipation of defendant's 

recertification, plaintiff received a handwritten statement from defendant listing 
8

A-2027-19

his wages. Bruce explained the difficulty she experienced in verifying his 

income in 2018 and how she ultimately confirmed his income through an 

employment verification system. 

Bruce then testified to defendant's subsequent visits to the office 

complaining that "he didn't have the money" because he had to pay for his 

brother's funeral. She said these visits happened almost every other day. She 

confirmed that defendant never asked for an interim recertification. Nor did he 

bring any evidence of his then current income or verification that he had stopped 

working. Defendant never submitted such documentation to plaintiff prior to 

September 2019.

According to Bruce, in September 2019, defendant told her he was not 

working because of his need for a foot operation. Plaintiff then "removed his 

income" from employment in its calculations and relied only on his social 

security benefits, when it conducted both an interim and annual rectification 

because the information he provided revealed an earlier loss of income. 

When the interim and annual recertifications were completed, defendant's 

rent was lowered to $252 per month effective October 1, 2019, because the 

recertified rent goes into effect the first of the month after it is completed. So 

had defendant submitted the information in support of a request for 
9

A-2027-19

recertification showing his loss of income earlier, his rent would have been 

reduced on the first of the month thereafter.

Bruce also confirmed the months for which defendant had not previously 

paid rent during 2019. She noted that of those months he paid rent on March 

4th, April 3rd, and June 3rd. At the end of September 2019, defendant's 

outstanding rent balance was $3,697. 

In defendant's testimony, he initially addressed his employment history. 

He explained that he was unemployed since February 2019 and before that was 

doing work through various temporary employment agency which he began in 

approximately June 2017. 

Defendant then addressed his income. He explained that since his 

unemployment he received social security benefits in the amount of $956.00 per 

month.

According to defendant he pursued an interim recertification in October 

2019 because he "stopped working in September." At that time, he went to 

plaintiff's office and brought his last six pay stubs. Despite his previous 

statement that he stopped working in September, defendant explained that in 

February 2019 he stopped working because he went to his "foot doctor" who 

said he needed surgery and was then told by the employer secured by the temp 
10 A-2027-19

agency that he should not return to work. He has never been employed since 

then. Defendant had the anticipated surgery in September 2019, which 

prompted him to notify plaintiff he had stopped working.

Defendant acknowledged that he understood his lease required him to 

report any changes in household income to his landlord. He confirmed that when 

he moved into the building in February 2017, he only had income from social 

security and was not working. As revealed in his 2018 recertification, he worked 

during 2017 but had not informed plaintiff of his change in income. Defendant 

maintained that he did not report that 2017 income, but that he told plaintiff's 

representatives that he was working during that period. 

In response to questioning by the court, defendant confirmed that after he 

was not allowed to return to work in February, he did not advise plaintiff. He 

also confirmed that when he spoke to plaintiff's representative he told them that 

he "was paying [his] rent but . . . had two brothers pass away, one this year in 

January, one last year in February, got another brother that is on his deathbed 

too." Defendant did not state that he had any change in income, but rather, he 

explained that he had funeral expenses.

After considering counsel's closing arguments, the court placed its 

decision on the record. Initially, the court made credibility determinations as to 
11 A-2027-19

the two witnesses and found them both honest. The court explained that 

defendant testified he stopped working in February 2019 and that the court found 

him very credible and believed him. The court also specifically found that based 

on the conversation that defendant had with plaintiff about his loss of his 

brothers and the difficulty it imposed on him, defendant did not "inform the 

plaintiff that he had a decrease in income." Instead, the court found that 

defendant "informed them that he had a problem because of his brother passing 

away." The court then found that plaintiff did not violate the regulations and

defendant owed $3,697 in rent. The court entered its judgment accordingly. 

Thereafter, defendant filed a motion for reconsideration that the court 

denied. In its order denying relief, the court again found that defendant did not 

advise plaintiff he had a loss of income until September 2019 and when he did,

plaintiff conducted an interim recertification that changed his rent effective

October 1, 2019. 

Turning to the regulations and citing the "HUD Handbook 7-13(D)" the 

court quoted the circumstances when a landlord can initiate interim 

recertification, which included where it discovers an undisclosed increase in the 

tenant's income. As to a "rent decrease" the regulations stated that the 

recertification based on the decreases is "implemented effective the first rent 
12 A-2027-19

period following completion of the recertification" and that "[t]enants may 

request an interim recertification due to any changes occurring since the last 

recertification that may affect the TTP [Total Tenant Portion] or tenant rent and 

assistance payment for the tenant."

Prior to the court determining the outcome of his motion for 

reconsideration, defendant tendered to plaintiff all outstanding rent. For that 

reason, defendant was not evicted and remains in possession of the premises. 

This appeal followed.

A party seeking to overturn a judgment of possession must demonstrate 

on appeal that the judge abused his or her discretion in entering the judgment.

Cmty. Realty Mgmt. v. Harris, 155 N.J. 212, 236 (1998). We will not disturb 

the factual findings of the trial judge unless "they are so manifestly unsupported 

by or inconsistent with the competent, relevant and reasonably credible evidence 

as to offend the interests of justice." Klump v. Borough of Avalon, 202 N.J. 

390, 412 (2010) (quoting Abtrax Pharm. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 

(1995)). We review a trial court's conclusions of law de novo. Manalapan 

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 379 (1995).

Here, we review de novo because the trial court's determination of the rent 

reduction's effective date is a legal conclusion that was based on its review of 
13 A-2027-19

the U.S. Department of Housing and Urban Development's Handbook.5 See

generally U.S. Dep't of Hous. & Urb. Dev., HUD Handbook No. 4350.3: 

Occupancy Requirements of Subsidized Multifamily Housing Programs (Nov. 

2013) (HUD Handbook). We conclude from our review that the court erred 

when it held that the reduction could only be applied prospectively and not 

retroactive to defendant's loss of employment.

"Under federal law, an owner landlord is required to satisfy specific 

requirements when attempting to terminate a subsidized tenancy. We have held 

federal requirements to be jurisdictional prerequisites to the establishment of 

good cause for eviction in state court." Riverview Towers Assocs. v. Jones, 358 

N.J. Super. 85, 88 (App. Div. 2003). And, we recently held that the federal 

requirements preempt the Anti Eviction Act. See Summit Plaza Assocs. v. 

Kolta, 462 N.J. Super. 401, 410 (App. Div.) (finding that N.J.S.A. 2A:18-16.1(f) 

is preempted by Supremacy Clause), certif. denied, 244 N.J. 145 (2020).

Whether the trial court here had jurisdiction and, if so, properly calculated

the amount due and owing as rent, turned on whether defendant was entitled to 

a reduction in his rent retroactive to the first of the month following his 

5

 Evidently, at trial, the HUD Handbook was admitted into evidence. Like other 

items that were also admitted, defendant did not include copies of what the trial 

court considered in his appendix, again contrary to Rule 2:6-1(a)(1)(I).
14 A-2027-19

unemployment, even though he never, as the trial court found, formally 

requested an interim reclassification until September 2019. To determine the 

answer, resort must be made to the governing regulations.

The policies and procedures governing the recertification process are 

contained in the HUD Handbook. "The HUD Handbook 'is a one-source "rule 

book" on the occupancy policies and procedures governing the subsidized 

multifamily programs' of HUD." Kuzuri Kijiji, Inc. v. Bryan, 371 N.J. Super. 

263, 265 (App. Div. 2004). The procedures set forth in the HUD Handbook are 

clear and straightforward and are detailed to protect the significant property 

right a tenant possesses to a subsidized housing voucher, and the federal 

government's concomitant interests in ensuring an accurate and equitable 

distribution of those benefits. 

As explained in the HUD Handbook, one of the program's "key 

requirements" is "[t]o ensure that assisted tenants pay rents commensurate with 

their ability to pay." HUD Handbook, § 7-4(A). For that reason, it requires that 

at least annually, landlords "must conduct a recertification of family income and 

composition at least annually [and] then recompute the tenants' rents and 

assistance payments, if applicable, based on the information gathered." Id. § 7-

4(A)(1). See also 24 C.F.R. § 5.657(b) (2020). And, tenants are required to 
15 A-2027-19

"supply information requested by the owner or HUD for use in a regularly 

scheduled recertification." HUD Handbook, § 7-4(A)(2). See also 24 C.F.R. § 

5.659(b)(2) (2018). The HUD Handbook imposes deadlines for the completion 

of the annual review and requirements for the landlord to commence the process 

by sending the tenant various notices. See HUD Handbook, §§ 7-5, 7-7.

If a tenant fails to respond to the landlord's notice and does not provide 

the required information, that tenant could lose the subsidy. Id. §§ 7-8(D)(2),

7-8(D)(3)(b). Before that happens, the landlord "must inquire whether 

extenuating circumstances prevented the tenant from responding prior to the 

anniversary date." Id. § 7-8(D)(4). "Extenuating circumstances" are defined as 

"circumstances beyond the tenant's control." Id. § 7-8(D)(4)(a). "If the owner 

determines that extenuating circumstances were present[,]" the subsidy will be 

reinstated "retroactively to the recertification anniversary date." Id. § 7-

8(D)(5)(b).

The HUD Handbook also provides for interim recertifications. Unlike 

annual recertifications, an interim recertification requires the tenant to initiate

the process and to provide supporting documentation. Under certain 

circumstances, such as where the tenant's family's composition changes, id. §§

7-10(A)(1), (2), or the family income increases, id. §§ 7-10(A)(3), (4), the tenant 
16 A-2027-19

is required to notify the landlord that a change has occurred so that an interim 

recertification can be conducted. Id. § 7-10(A).

However, the HUD Handbook makes it optional for a tenant to report a 

decrease in income or an increase in certain expenses that would warrant an 

interim recertification leading to a reduction in rent. Id. § 7-10(B). Such 

circumstances expressly include "[d]ecreases in income including . . . loss of 

employment," id. § 7-10(B)(1), and "a family member . . . becoming a person 

with a disability," id. § 7-10(B)(3). 

A landlord is only required to complete an interim recertification "if a 

tenant reports" a decrease in income, unless "[t]he decrease was caused by [the 

tenant's] deliberate action . . . to avoid paying rent," id. §§ 7-11(A)(4), 7-

11(D)(1), or if the decrease is temporary, id. §7-11(D)(2). In any event, the 

interim recertification must be completed "within a reasonable time, which is 

only the amount of time needed to verify the information provided by the tenant.

Generally, this should not exceed 4 weeks." Id. §7-11(C). The steps a landlord 

must follow are dependent upon whether they are in response to a tenant 

satisfying his reporting obligation or requesting an interim recertification, see

id. § 7-12(A)(1)-(5), or if the landlord "learn[ed] that a tenant failed to report a 

change in income or family composition." Id. §§ 7-12(B)(1)-(3).
17 A-2027-19

Once a landlord has completed the interim recertification requested by the 

tenant or as a result of the tenant's mandatory reporting of increased income of 

family composition changes, any increase in rent will become effective on the 

first day of the month following the landlord's delivery of a thirty day notice to 

the tenant of the increase. Id. § 7-13(C)(1). If the tenant is entitled to a decrease, 

"the change in rent is effective on the first day of the month after the date of 

action that caused the interim certification, e.g., first of the month after the date 

of loss of employment. A 30-day notice is not required for rent decreases." Id.

§ 7-13(C)(2) (emphasis added). 

However, the effective date is different if the tenant did not comply with 

the mandatory reporting requirements related to an increased income or change 

in family composition, see id. § 7-10(A), or if the landlord discovers any other 

change that would have warranted an interim recertification without the tenant 

reporting it or requesting the interim recertification. Under those circumstances, 

any increase is effective "retroactive to the first of the month following the date 

that the action occurred." Id. § 7-13(D)(1). Any decrease in rent "must be 

implemented effective the first rent period following completion of the 

recertification." Id. § 7-13(D)(2) (emphasis added). 
18 A-2027-19

The requirements for conducting annual and interim recertifications were 

incorporated into defendant's lease with plaintiff. Section 15 of the lease 

advised that annual recertifications will begin around the first of August. 

Section 16 contained defendant's obligation to report increases in income and 

warned that a failure to report may increase rent to the HUD approved market 

rent. And, under Section 18, defendant was obligated to pay the difference 

between his rent and the market rent where he to provided false information or 

"fail[ed] to report interim changes in family income or other factors as required 

by [Section] 16." However, Section 16(b) made "optional" reporting a decrease 

in income and provided that "[u]pon verification Landlord will make appropriate 

rent reduction" unless the reduction is temporary and if there is a delay in the 

rectification to determine if the reduction is temporary, but it turns out it is not, 

"the rent reduction will be retroactive."

The HUD Handbook, therefore, as well as the subject lease, make the 

reporting of income reduction optional to the tenant. Specifically, under Section 

7-10(B), "[t]enants may request an interim recertification," and in the lease it 

states a "tenant may report any decrease in income." There are no express 

deadlines for reporting such decreases. 
19 A-2027-19

Applying the controlling regulations and the lease provisions that are 

derived from them, we first observe that there is no obligation imposed on a 

tenant to seek an interim recertification when he or she experiences a reduction 

in income. Both make it clear that the pursuit of that process is left to the tenant's 

discretion, and when it is pursued, any rent reduction based upon information 

provided by the tenant that is verified by the landlord is effective the first of the 

month after the event that caused the interim recertification. Under the 

regulations and defendant's lease, it is only when the tenant has an obligation to 

report, such as for an increase in income, that the tenant faces dire consequence

for a failure to do so. Where he or she does not report in that situation, the 

increased rent's effective date is the first day of the month after the increased 

income occurred. Likewise, when there is no request for an interim 

recertification and the landlord otherwise discovers the tenant's changed 

financial information, the rent decrease becomes effective on the first of the 

month after recertification based on the new information.

Here, there is no dispute that defendant did not request an interim

recertification until September 2019 when he already allegedly was in arrears in 

the lease's rent. At that time, which was still during the lease's term, Bruce 

conducted an interim and annual recertification based upon information supplied 
20 A-2027-19

by defendant, sent his information to the occupancy specialist, and his rent 

amount was reduced. 

Under these facts, and considering the dual purposes of the regulation to 

align a participating tenant's rent to his or her income while making sure only 

those who are entitled to subsidies receive them, we conclude the trial court 

erred by determining that the effective date was October 1, 2019, for the 

decrease to which defendant was entitled after he ceased employment. As the 

regulations clearly state, under these circumstances the effective date must be 

the first day of the month following the event that caused the interim 

recertification. That event would be defendant losing his employment in

February 2019, as the trial court found. 

We are not persuaded otherwise by plaintiff's contention that, under our 

holding here, tenants could wait an inordinate amount of time, even longer than 

the seven months here that defendant allowed to lapse before rereporting his 

decreased income. That, according to plaintiff, would be an untenable result.6 

We disagree, if as here, a tenant's reporting of a decrease is within his lease's 

6

 We note that plaintiff does not cite to any case law from this or any other 

jurisdiction to support its contention that a delay in reporting a reduction in 

income compels a decrease in rent effective only on the first of the month after 

reporting. Instead, plaintiff relies on its own interpretation of the regulations 

with which we disagree. 
21 A-2027-19

term and still within months of the event that caused the reduction in income, 

especially where, as here, there was no demonstration of any prejudice or harm 

to the landlord. Under these circumstances, we see nothing untenable about 

fulfilling a "key requirement" of the program and applying the reduction to the 

effective date as contemplated by the regulations in order to keep defendant's 

rent aligned with his income. 

We therefore reverse the trial court's holding and remand for a 

determination as to whether, applying the correct effective date, there was any 

rent due and owing to plaintiff. If so, the judgment of possession must be 

amended to reflect the correct amount. If not, the judgment must be vacated.

Reversed and remanded for further proceedings consistent with our 

opinion. We do not retain jurisdiction.