SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1808-19T3

GOLDEN APPLE HOLDINGS, 

LLC,

Plaintiff-Respondent,

v.

GLORIA REYES,

Defendant,

and

HERIBERTO ALMONTE,

Defendant/Intervenor-Appellant.

________________________________

Argued telephonically argued April 30, 2020 –

Decided June 22, 2020

Before Judges Fisher, Accurso and Gilson.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. LT-013044-19.

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NOT FOR PUBLICATION WITHOUT THE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." 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.
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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 possession 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 reverse and remand for a new trial before a new judge because the 

trial judge made 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 manager for the 

apartment building. The project manager testified that the Landlord 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 Landlord submitted a February 1999 lease, which a prior landlord had 
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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 Landlord 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 Landlord relied on paragraph 4 of the Lease, which 

states:

USE OF PROPERTY. The Tenant may use the 

apartment only as a private residence and only the 

persons named below may reside in the Premises with 

Tenant: Miosotis H. Almonte, Arian[]A. Almonte, 

[and] Heriberto Almonte. 

No other person will be permitted to reside in the 

Premises without the Landlord's written consent. Any 

change in the persons who are residing at the Premises 

must be reported to Landlord in writing immediately. 

Tenant is responsible for compliance with this 

agreement. If any person resides at the Premises who 

is not authorized by Landlord to reside at the Premises, 

Landlord may cancel this Lease, and Tenant must 

vacate the Premises within five . . . days of cancellation.

The Landlord contended that the phrase "reside in the [p]remises with 

[t]enant" meant 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 Landlord relied on paragraph 14 of the Lease, which 
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states that the tenant could not sublease the apartment without the Landlord'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 apartment. Thereafter, the Landlord, through 

its attorney, sent two notices to the apartment. The notices were dated August 

1, 2019 and September 19, 2019, and were addressed to "Gloria Reyes, tenant 

and Unauthorized Occupants" and "Gloria Reyes (and any other occupants)." 

The notices directed the occupants to cease violating the Lease and to vacate the 

apartment. 

The Landlord contended that Almonte and his daughters were violating 

the Lease by occupying the apartment without Reyes. The Landlord did not rely 

on any other provision of the Lease 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 explained that 

he married Reyes in 1989, and that they had moved into the apartment 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 Lease, 

Almonte testified that Reyes signed the Lease because he was at work when it 
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arrived. In that regard, he explained that she called him, and he told her to sign 

the Lease. 

Almonte also testified that shortly after the Lease 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 Reyes had died a number of years 

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 Almonte 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. 

Ariana 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. 
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Based on that testimony, the trial judge found the controlling lease was 

the Lease signed in 1999 by Reyes. The judge then construed the Lease to 

require Reyes to be a tenant in the apartment with Almonte and their daughters. 

The judge rejected Almonte's contention 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 Landlord had acquiesced to Almonte's 

occupancy of the apartment. 

On the record, the judge stated that she was ruling for the Landlord. 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 possession 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) accepting jurisdiction because the notices were vague and not served directly 

on him; and (3) rejecting his position that he is a functional tenant. 
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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, 

intervened, and testified at trial.1 We reverse and remand, however, because 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 tenancy. 

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. 

Peskin, 101 N.J. Super. 468, 469 (App. Div. 1968)). If the lease was a monthto-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 Ctr. Ave. Realty, Inc. v. Smith, 264 N.J. Super. 344, 350 (App. Div. 

1993)). 

The law substantially changed, however, when the Legislature passed the 

Act. Ibid. (citation omitted). The Act provides that a tenant cannot be removed 

except when the landlord establishes one of eighteen enumerated grounds for a 

good cause eviction. Id. at 121 (quoting 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:18-61.2. 
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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 remain, provided he pays the rent . . . and 

provided there is no other statutory 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 Act "was 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 Court has also repeatedly stated that the Act 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 recognized that an occupant 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 continuously resided 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 reviewed on appeal 

for abuse of discretion. Cmty. Realty Mgmt. v. Harris, 155 N.J. 212, 236 (1998)

(citations omitted). Moreover, factual findings made by a judge in a bench trial 

will usually not be disturbed if they are supported by substantial credible 

evidence. 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 credible 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 

whether Almonte was a functional tenant. Almonte's unrebutted testimony 

established that he continuously resided in the apartment 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 supporting 

that position. The record, however, is undisputed that the rent was consistently 

paid on a monthly basis for years. In that regard, it was undisputed that rent had 
10 A-1808-19T3

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. That fact still 

strongly suggests that Almonte was a substantial contributor towards the rent.

Almonte also testified that a prior landlord knew and acquiesced to his 

financial contributions. He explained that landlord had learned of Reyes' death 

as early as 2009. He also testified that there had been a court proceeding which 

had been resolved with him being allowed to 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 testimony. 

Nevertheless, with virtually no analysis of the testimony presented, the trial 

judge found that the current Landlord (Golden Apple) had not acquiesced to 

Almonte's financial contributions. 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 Lease would have been effectively modified and Golden Apple 
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would be bound by that modification.

2

 At a minimum, the court should have 

engaged 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 Props. v. Variety Donuts, Inc., 

49 N.J. 116, 127-28 (1967)). 

Second, in making the finding that the current Landlord 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 before it stopped 

accepting 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. 

Harmony Sand & Gravel, Inc., 442 N.J. Super. 333, 341 (App. Div. 2015) (citing 

N.J.S.A. 25:1-12); Willow 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 functional tenancy, even when the 

three-part test in Maglies is satisfied, by refusing to execute a corresponding 

writing. 
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Accordingly, we vacate the judgment 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 remanded. We do not retain jurisdiction.