SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- Respondent,

v. GLORIA REYES, Defendant, and HERIBERTO ALMONTE, Defendant/Intervenor

- Appellant.

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Argued t elephonically argued April 30, 2020

– Decided June 22, 2020 Before Judges Fisher, Accurso and Gilson. On appeal from the Superior Court of New Jersey, Law Div ision, Hudson County, Docket No . LT

- 0 13044

- 19. John V. Salierno argued the cause for appellant. Alison C. Ingenito argued the cause for respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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PER CURIAM This appeal presents a question of whether an occupant of an apartment is a functional tenant protected under the Anti

- Eviction Act (the Act) , N.J.S.A.
2A:18

- 61.1 to

- 61.12. The occupant, Heriberto Almonte, appeals from a judgment of poss ession and a warrant of removal entered following a bench trial during which the trial judge rejected his argument that he was a functional
tenant. We revers e and remand for a new trial before a new judge because the trial judge m ade inadequate findings of fact and misapplied the governing law.
I. We derive the facts from the record developed at a one

- day bench trial held in the Law Division , Special Civil Part, on December 16, 2019. In November 2019, the landlord, Golden Apple Holdings, LLC (the Landlord), filed a summary dispossession action seeking to evict Almonte and his two adult daughters. At trial, the Landlord called one witness: the project ma nager for the apartment building. The project manager testified that the L andlord purchased the building, located in West New York, in February 2018. At that time the apartment at issue was already occupied and the rent for the apartment was being paid. The L andlord submitted a February 1999 lease, which a prior landlord had3 A

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signed with Gloria Reyes (the Lease). The Lease was month

- to

- month and it did not have a provision addressing what would happen if the tenant died.
The L andlord asserted that Reyes was no longer living in the apartment and Almonte and his two daughters were therefore unauthorized occupants

. In support of that position, the Landlor d relied on paragraph 4 of the L ease, which
states: USE OF PROPERTY. The T enant may use the

apart ment only as a private residence and only the persons named below may reside in the Premises with T enant: Miosotis H. Almonte, Arian[] A. Almonte, [ and ] Herib ert o Almonte. No other person will be permitted to reside in the P remises without the L andlord's written consent. Any change in the persons who are residing at the P remises must be reported to L andlord in writing immediately. Tenant is res ponsible for compliance with this agreement. If any person resides at the P remis es who is not authorized by L a ndlord to reside at the P remise s , L andlord may cancel this L ease, and T enant m ust vacate the P remises within five . . . days of cancellation. The L andlord contended that the phrase "reside in the [ p ] remises with [t] enant" mean t that Almonte and his daughters could only stay in the apartment with Reyes, and when Reyes vacated the apartment, they became unauthorized occupants. In addition, the L andlord relied on paragraph 14 of the L ease, which4 A

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states that the tenant could not su blease the apartment without the L andlord's prior written consent. The property manager testified that sometime after February 2018, he spoke to one of the daughters who told him that she was the daughter of Reyes and Reyes no longer lived at the apartm ent. Thereafter, the Landlord, through its attorney, sent two notices to the apartment. The notices were dated August 1, 2019 and September 19, 2019 , and we re addressed to "Gloria Reyes, t enant and U nauthorized O ccupants" and "Gloria Reyes (and any other occupants)." The notices directed the occupants to cease violating the L ease and to vacate the apartment.
T he Landlord contended that Almonte and his daughters were violating the L ease by occupying the apartment without Reyes. The L andlord did not re l y on any other provision of the L ease and did not contend that the rent for the apartment had not been paid on a timely basis. Almonte intervened in the action and testified at trial. He explain ed that
he married Reyes in 1989 , and that they had moved into the apar tment in 1992 or 1993. Almonte testified his daughters were born in 1991 and 1997 , and that they had lived with him continuously in the apartment. Concerning the L ease, Almonte testified that Reyes signed the L ease because he was at work wh en it5 A

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arrived. In that regard, he explain ed that she called him, and he told her to sign the L ease. Almonte also testified that shortly after the L ease was signed, he and Reyes separated. He stated that he and his daughters continued to live in the apartment. He also testified that he was the person who paid the rent during the
entire period they lived in the apartment, including after Reyes left the apartment. He also explained that he believed R e yes had died a number of y ears before this action was filed. In addition, Almonte testified that he told a prior landlord that Reyes had died. According to Almonte, that landlord filed a court action that was resolved with the understanding that Almont e would be given a new lease. Almonte then explained that that landlord did not send him a new lease. Nevertheless, Almonte and his daughters continued to live in the apartment and Almonte continued to pay the monthly rent. Aria n a Almonte was the third and final witness to testify at the trial. She explained she had lived in the apartment her entire life

. She also testified that Reyes was her mother, but she did not have any memories of her mother or of living with her mother.6 A

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Based on that testimony, the trial judge found the controlling leas e was the Lease signed in 1999 by Reyes. The judge then construed the L ease to require Reyes to be a tenant in the apartment with Almonte and the ir daughters. The judge rejected Almonte's content ion that he was a functional tenant. Specifically, the judge found Almonte's testimony not to be credible because he had not brought any documents proving that he was the person paying the rent. Thus, the judge did not find that the L andlord had acquiesc ed to Almonte's occupancy of the apartment. On the record, the judge stated that she was ruling for the L andlord. No judgment of possession , however, was included in the record before us. Instead, the record only includes a warrant of removal ordering Almonte and his daughters to move out of the apartment before January 7, 2020. After Almonte appealed, we granted a stay of the judgment of po ssession and warrant pending this appeal.
II. On appeal, Almonte makes three arguments. He contends that the trial judge erred in : ( 1) not joining him and his daughters as indispensable parties; ( 2) ac cepting jurisdiction because the notices were vagu e and not served directly on him; and ( 3) re

jecting his position that he is a functional tenant.7 A

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We hold that Almonte was permitted to intervene to participate as a party. We also hold that the notices were sufficient because Almonte received them , int ervened , and testified at trial. 1 We reverse and remand, however, be cause the trial judge's finding that Almonte was not a functional tenant was inadequate. Moreover, the trial judge failed to properly analyze the governing law concerning functional ten ancy. Under the common law, when a tenant died, the tenancy passed to his or her estate. Maglies v. Estate of Guy , 193 N.J. 108, 120 (2007) (citing Gross v.
Pes kin , 101 N.J. Super. 468, 469 (App. Div. 1968 )). If the lease was a month

to

- month tenancy, as the Lease in this case, "then the landlord could terminate the lease by giving one month ' s notice to the estate's legal representatives." Ibid. (citing Ct r . Ave. Realty, Inc. v. Smith , 264 N.J. Super. 344, 350 (App. Div. 1993)). The law subs tantially changed, however, when the L egislature passed the
Act. Ibid. (citation omitted). The A ct provides that a tenant cannot be removed except when the landl ord establishes one of eighteen enumerated grounds for a good cause eviction. I d. at 121 (qu oting N.J.S.A. 2A:18

- 61.1 ) . The grounds for

1 Under the Act, a landlord cannot obtain a judgment of possession unless it has "made written demand and given written notice for delivery of possession of the premises." N.J.S.A. 2A:18

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eviction include material breaches of the lease. N.J.S.A. 2A:18

- 61.1(d) to (e)( 1 ). "When a person is protected by the Act, 'the effective term of the lease is for as long as the tenant wishes to rem ain, provid ed he pays the rent . . . and provided there is no other stat utory cause for eviction under [the Act].'" Maglies , 193 N.J. at 121 (alterations in original) (quoting Ctr. Ave. Realty , 264 N.J. Super. at 350). Our Supreme Court has stated that the A ct "wa s designed to protect residential tenants against unfair and arbitrary evictions by limiting the bases for their removal." 447 Assocs. v. Miranda , 115 N.J. 522, 528 (1989) (citations omitted) . The C ourt has also repeatedly stated that the A ct is "remedial legislation deserving of liberal construction." Maglies , 193 N.J. at 123 (quoting
447 Assocs. , 115 N.J. at 529 )

. Consistent with the design and liberal construction of the Act, the Court has recog nized that an occu pant can become a functional tenant protected by the
Act. Id. at 125

- 26 . To be recognized as a functional tenant, an occupant must establish three facts: ( 1) he or she has con tinuously res ide d at the premises ; ( 2) he or she " has been a substantial contributor towards satisfaction of the tenancy's financial obligations " ; and ( 3) his or her " contribution has been acknowledged and acquiesced to by " the landlord. Id. at 126

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Generally, a challenge to a judgment of possession is reviewe d on appeal for abuse of discretion. C mty. Realty Mgmt. v. Harris , 155 N.J. 212, 236 (1998) (citations omitted) . Moreover, factual findings made by a j udge in a bench trial will usually not be disturbed if they are supported by substantial credible evide nce. Slutsky v. Slutsky , 451 N.J. Super. 332, 343

- 44 (App. Div. 2017) (quoting Cesare v. Cesare , 154 N.J. 394, 412 (1998)). Nevertheless, when fact findings are not supported by substantial credibl e evidence we will intervene. Id. at 369 (citing Beck v. Beck , 86 N.J. 480, 496 (1981)). Here, the trial judge failed to adequately analyze the evidence concerning whet her Almonte was a functional tenant

. Almonte 's unrebutted testimony established that he continuously resided in the ap artment since the early 1990's. Indeed, before us the Landlord conceded that fact. Almonte also testified that he paid the rent every month. He explained that when he was living with Reyes he worked, she did not, and he paid the rent. He also testified that since Reyes vacated the apartment sometime shortly after the 1999 Lease was signed , he continued to pay the rent monthly. The trial judge questioned Almonte's credibility because he did not have documents suppo rting that position. The record, howev er, is undisputed that the rent was consistently paid on a monthly basis for years. In that regard, it was undisputed that rent had10 A

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been received by the Landlord and those payments had been applied to the rent for the apartment where Almonte lived. Even if it was not Almonte paying the rent, then someone was sending those payments on his behalf. Th at fact still strongly suggest s that Almonte was a substantial contributor towards the rent

. Almonte also testified that a prior landlord knew and acquiesced t o his
financial contr ibutions. He explained that landlord had learned of Reyes' d eath as early as 2009. He also testified that there had been a court proceeding which had been resolved with him being allowed t o stay in the apartment. Most importantly, the record was unrebutted that for years after Reyes' death, the Landlord accepted rent payments for the apartment where Almonte and his daughters lived. The Landlord offered no evidence to rebut Almonte's tes timony. Nevertheless, with virtually no analysis of the testimony presented, the tria l judge found that the current L andlord (Golden Apple) had not acquiesced to Almonte's financial contribution s . There are two shortcomings in that finding. First, if a prior landlord accepted payments from Almonte then Almonte became a functional tenant before Golden Apple purchased the building. In other words, the L ease would have be en effectively modified and Golden Apple11 A

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would be bound by that modification

. 2 At a minimum, the court should have
engage d in a more rigorous analysis to determine whether Golden Apple was bound by the acquiescence of a prior landlord

. See Young v. Savinon , 201 N.J. Super. 1, 7

- 10 (App. Div. 1985) (citing Carteret P rops. v. Variety Donut s, Inc. , 49 N.J. 116, 127

- 28 (1967)). Second, in making the finding that the current L andlord did not acquiesce, the trial judge ignored the undisputed fact that Golden Apple purchased the building in February 2018, and then waited well over one year bef ore it stopped acceptin g Almonte's payments in July 2019. That one - and

- a - half

- year delay
raises material facts concerning whether Golden Apple acquiesced to Almonte's payment of the rent for the apartment. In summary, the trial judge failed to adequately address the evidence that had been presented and the judge's finding that Almonte was not a functional tenant is not supported by substantial credible evidence in the record.

2 Before us counsel for the Landlord contended that any modification to the Lease had to be in writing pursuant to the statute of frauds. See Van Horn v. Harmon y Sand & Gravel, Inc. , 442 N.J. Super. 333, 341 ( App. Div. 2015) (citing N.J.S.A. 25:1

- 12); Willo w Brook Recreation Ctr., Inc. v. Selle , 96 N.J. Super. 358, 364 (App. Div. 1967). Maglies , however, does not require a written modification to establish a functional tenancy. Such a requirement would allow a landlord to prevent the establishment of a fun ctional tenancy, even when the three

- part test in Maglies is satisfied, by refusing to execute a corresponding writing.12 A

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Accordingly, we vacate the judg ment of possession and the warrant of removal and remand for a new trial. Because the judge who tried the case has already made findings that are inconsistent with the record, we direct that on remand the matter be tried by a new judge. Reversed and r emanded. We do not retain jurisdiction.