SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5036-16T4

KWOK FANG CHANG TRUST,

Plaintiff-Appellant,

v.

ESTATE OF SYLVIA MALAKOFF,

Defendant-Respondent.

________________________________

Argued July 2, 2018 – Decided July 27, 2018

Before Judges Carroll and Rose.

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Docket No. LT3936-17.

Christopher S. Martone argued the cause for 

appellant (Martone & Associates, LLC, 

attorneys; Christopher S. Martone, of counsel 

and on the briefs).

Lawrence E. Sindoni argued the cause for 

respondent (Northeast New Jersey Legal 

Services Corp., attorneys; Lawrence E. Sindoni 

and Johanna S. Zacarias, of counsel and 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NOT FOR PUBLICATION WITHOUT THE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-5036-16T4

In this summary dispossess matter, plaintiff Kwok Fang Chang 

Trust appeals from a June 14, 2017 Special Civil Part judgment, 

effectively dismissing its complaint for possession of an 

apartment in Edgewater.1 On appeal, plaintiff contends that 

pursuant to the terms of the lease agreement, the death of the 

tenant, Sylvia Malakoff, constituted an "event[] of default[,]" 

permitting termination of the tenancy. For the reasons that 

follow, we affirm. 

I.

We glean the facts and procedural history from the trial 

record. Trustee Alexander Chen testified on behalf of plaintiff,

and Sylvia's2 son, Jay, testified on behalf of defendant Estate of 

Sylvia Malakoff. Documents were also introduced in evidence, 

including the lease agreement at issue, the notices concerning 

termination of the lease agreement, a series of checks for payment 

of rent and water bills, and a surrogate's affidavit. 

 

1 The trial judge entered a "technical" judgment of possession in 

the amount of $2106, representing rent due, which plaintiff had 

not accepted while the action was pending. Apparently, after 

judgment was entered, the rent was paid in full and the complaint 

was dismissed. 

2 We refer to the defendant parties by their first names to avoid 

any confusion caused by their common last name. No disrespect is 

intended.
3 A-5036-16T4

Prior to her death, Sylvia had resided at the second floor 

apartment of XX Myrtle Avenue in Edgewater (premises), a threeunit rental property, for more than thirty years. On May 1, 2016, 

plaintiff3 and Sylvia executed a one-year lease agreement, 

terminating on April 30, 2017. Her husband having died in April 

2014, Sylvia was the sole tenant of the premises. Pertinent to 

this appeal, the lease agreement contained the following 

provisions:

[Paragraph] 11. Use of Property. The Tenant 

may use the House only as a private residence 

for the following persons: Jay Malakoff, her 

son, and Jay Malakoff's children or spouse,

referred to as "household members" . . . .

[Paragraph] 13. Events of Default. The 

following are defaults under this Lease: 

. . . (c) the death of remaining Tenant, Sylvia 

Malakoff . . . .

At the time of Sylvia's death on January 3, 2017, Jay had 

resided at the premises for thirty-four years, and his son, Eitan, 

had lived there ten years. Jay testified he had "been paying the 

full rent since approximately 2009." Chen confirmed "Jay's name 

and his mother, Sylvia's, name [were] on the checks[s]." The 

oldest check introduced in evidence, dated August 27, 2013, was 

 

3 Although testimony adduced at trial indicated Kwok Fang Chang

Trust executed the lease agreement, the document indicates it was 

executed by Kwok Fang Chang (Chang).
4 A-5036-16T4

payable from a joint account held by Jay and Eitan; the most recent 

check, dated April 1, 2017, was payable from Eitan's account. 

Jay and Eitan also paid the water bills. For example, by 

correspondence dated March 17, 2017, Chang requested payment due 

for the March 2017 water bill. The bill was addressed to "Tenant: 

Jay Malakoff" and stated, in pertinent part: "Payment is due on 

your March water bill . . . ." (Emphasis added). 

It is unclear from the record the date on which plaintiff was 

made aware that Sylvia had died. On March 8, 2017, plaintiff's 

counsel sent defendant "C/O Jay Malakoff" a notice to quit and 

demand for possession, terminating the lease as of April 30, 2017. 

In particular, the notice to quit stated "the death of Sylvia 

Malakoff is a default under the lease." Jay and Eitan remained 

in possession of the premises at the time of trial. 

Following the close of evidence at the June 14, 2017 trial, 

the judge issued a succinct oral opinion, finding paragraphs eleven 

and thirteen of the lease agreement were contradictory. While he 

agreed the lease terminated as a result of Sylvia's death, the 

judge found Jay and Eitan became "month-to-month tenants under 

Maglies [v. Estate of Guy, 193 N.J. 108 (2007)]." Citing the rent 

and water bill payments made by Jay, the judge found, "It's clear 

that the landlord has known about this arrangement, [and] has 

acquiesced in it." Further, "[T]he lease expired by its own terms. 
5 A-5036-16T4

[Jay] is a month-to-month tenant there." As such, the court 

ultimately determined Jay and Eitan are entitled to the protections 

of the New Jersey Anti-Eviction Act (Act), N.J.S.A. 2A:18-61.1 to 

-61.12, requiring good cause for eviction. On August 23, 2017, 

in an oral opinion, the trial judge supplemented his findings of 

facts and conclusions of law pursuant to Rule 2:5-1(b), further 

analogizing the Court's holding in Maglies to the circumstances 

of the present case. This appeal followed.

The sole issue raised on appeal is whether Jay and Eitan are 

legally entitled to remain in possession of the premises following 

Sylvia's death. Guided by Maglies, under the facts presented, we 

conclude Jay and Eitan were "functional tenants," and accordingly 

they were not subject to eviction upon Sylvia's death. 

II.

Our review of a trial court's fact-finding in a non-jury 

case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J.

150, 169 (2011). "The general rule is that findings by the trial 

court are binding on appeal when supported by adequate, 

substantial, credible evidence. Deference is especially 

appropriate when the evidence is largely testimonial and involves 

questions of credibility." Cesare v. Cesare, 154 N.J. 394, 411-

12 (1998) (citations omitted). We "should not disturb the 'factual 

findings and legal conclusions of the trial judge unless [we are] 
6 A-5036-16T4

convinced that they are so manifestly unsupported by or 

inconsistent with the competent, relevant and reasonably credible 

evidence as to offend the interests of justice.'" Id. at 412 

(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 

484 (1974)).

However, "[a] trial court's interpretation of the law and the 

legal consequences that flow from established facts are not 

entitled to any special deference[,]" and thus is subject to de 

novo review. Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 

403 N.J. Super. 146, 193 (App. Div. 2008) (first alteration in 

original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995)). Further, we review the 

trial court's interpretation of the Act, de novo. 

The Act protects residential tenants from eviction absent a 

showing of good cause. Morristown Mem'l Hosp. v. Wokem Mortg. & 

Realty Co., 192 N.J. Super. 182, 186 (App. Div. 1983). N.J.S.A. 

2A:18-61.1 enumerates the causes that are sufficient for eviction 

from residential premises. "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 (alteration and omission in original) 

(quoting Ctr. Ave. Realty, Inc. v. Smith, 264 N.J. Super. 344, 350 
7 A-5036-16T4

(App. Div. 1993)). Absent proof of one of the enumerated grounds 

for eviction, the court lacks jurisdiction to enter a judgment of 

possession. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 

281 (1994). 

Pertinent to this appeal, the Act provides:

No lessee or tenant or the assigns, undertenants or legal representatives of such 

lessee or tenant may be removed by the 

Superior Court from any house . . . leased for 

residential purposes . . . except upon 

establishment of one of the following grounds 

as good cause:

. . . . 

(e)(1) The person has continued, after written 

notice to cease, to substantially violate or 

breach any of the covenants or agreements 

contained in the lease for the premises where 

a right of reentry is reserved to the landlord 

in the lease for a violation of such covenant 

or agreement, provided that such covenant or 

agreement is reasonable and was contained in 

the lease at the beginning of the lease term.

[N.J.S.A. 2A:18-61.1].

Here, plaintiff served defendant with a notice to quit, 

effective April 30, 2017, citing Sylvia's death as "a default 

under the lease" resulting in its termination. As the trial court 

observed, the termination date provided in the notice to quit was 

the same date as the expiration of the one-year lease term. 

Nevertheless, the judge determined that Jay and Eitan are entitled 

to the protections of the Act. Without regard to the label 
8 A-5036-16T4

utilized to describe their status in the lease agreement, we agree 

that pursuant to the facts found by the trial judge, Jay and Eitan 

meet the three-part test enunciated in Maglies. 193 N.J. at 122.

In Maglies, the Court addressed "whether household members 

listed on a lease and [Housing Assistance Payment (HAP)] contract 

would be included in the broad group of" persons protected by the 

Act. 193 N.J. at 122 (citing N.J.S.A. 2A:18-61.1). In response 

to the landlord's characterization of the defendant as an 

"occupant," the Court stated "[a] label imposed by the landlord 

cannot and should not control [judicial] analysis of the law." 

Ibid. Rather, our courts "long have recognized the need to look 

beyond labels in order to explore the true character of a 

transaction or relationship." Ibid. Accordingly, the Court 

determined that a family member occupant, "functional co-tenant," 

or "tenant[]-in-fact," may be protected by the Act, where the 

following factors are demonstrated: (1) continuous residency in 

the premises; (2) substantial contribution to the tenancy's 

financial obligations; and (3) the "contribution has been 

acknowledged and acquiesced to by [the] landlord." (Maglies test). 

Id. at 122-23, 126.

Here, as the trial court aptly observed, (1) Jay resided 

continuously at the premises for more than thirty years; (2) having 

paid the full amount of rent since 2009, he substantially 
9 A-5036-16T4

contributed to the tenancy's financial obligation; and (3) 

correspondence from Chang and the testimony of Chen clearly 

established the landlord "acknowledged and acquiesced" in Jay's 

contribution to the tenancy. Thus, we agree that Jay was the 

"functional equivalent of a co-tenant" in the household he shared 

with Sylvia, thus satisfying the Maglies test. Id. at 128. The 

same determination applies to Eitan, who resided at the premises 

for ten years and paid rent and water bills from his own account.

We are not persuaded by plaintiff's reliance on the Maglies

Court's declaration that its holding was "not intended to undermine 

the enforceability of . . . clauses[,]" providing "the lease will 

terminate upon the named tenant's death." Id. at 127; see also

Riverview Realty, Inc. v. Williamson, 284 N.J. Super. 566, 568 

(App. Div. 1995). In Riverview Realty, we affirmed the trial 

court's decision "that the defendant sign a lease containing the 

termination upon death clause, but we [held] that her signing is 

without prejudice to a determination at the time of her death of 

the legal effect, if any, of that clause." 284 N.J. Super. at 

570. Thus, "we left 'for another day, the question of the scope

of our Anti-Eviction Act vis-a-vis occupant family members of 

deceased tenants.'" Ibid. (quoting Ctr. Ave. Realty, 264 N.J. 

Super at 353). In doing so, we reasoned:
10 A-5036-16T4

the answer to the question can best be 

determined in the light of the circumstances 

that exist at the time of the defendant's 

death. At that time, the equities can be 

examined in the light of the beneficial 

purposes of the Anti-Eviction Act and a fair 

determination reached as to whether the 

remedial purposes of the Act would be violated 

by enforcing such a clause.

[Ibid.]

Nor are we persuaded by plaintiff's newly-minted argument

that Maglies is inapplicable in the context of a non-Section 8 

tenancy. The factual context of Maglies necessitated the Court's 

discussion of the implications of the subsidies provided under 

Section 8. However, the Court did not state directly or indirectly 

that the Maglies test applied exclusively to Section 8 recipients. 

Rather, the Court explored the intent and purpose of the Act, 

i.e., "to protect residential tenants against unfair and arbitrary 

evictions by limiting the bases for their removal." Maglies, 193 

N.J. at 121 (citation omitted). Indeed, in concluding that 

functional co-tenants are protected by the Act, the Court stressed 

that the Act is remedial legislation and, as such, should be 

liberally construed. Id. at 123 (citing 447 Assocs. v. Miranda, 

115 N.J. 522, 529 (1989)); see also Franklin Tower One v. N.M., 

157 N.J. 602, 614 (1999) (recognizing New Jersey has a "strong 

public policy of protecting tenants from unjustified evictions"). 

Indeed, the Act was created to eliminate a landlord's ability to 
11 A-5036-16T4

arbitrarily oust residential tenants "from housing quarters in

which they have been comfortable and where they have not caused 

any problems." Id. at 124 (citation omitted).

Based on our de novo review of the legal issue presented, we 

discern no error in the trial court's conclusion that Jay and 

Eitan were functional co-tenants of the premises. Accordingly, 

they were permitted to remain in the premises on a month-to-month 

basis upon Sylvia's death, absent good cause to evict them pursuant 

to the Act. In light of this determination, we need not reach 

plaintiff's remaining claims. 

Affirmed.