Tenant Who Receives a Rent Subsidy Under New Jersey’s “S-RAP” Program Can’t be Evicted for Non-Payment of Additional Rent

175 Executive House, LLC v. Miles, 449 N.J. Super. 197 (App. Div. 2017).  A tenant who receives a rent subsidy under the federal “Section 8” voucher program, 42 U.S.C. §1437 to 1437z-9, cannot be evicted for non-payment of amounts not defined as rent, or for amounts that are “additional rent,” if the tenant is current with his or her share of the rent payments.  That was the holding of Sudersan v. Royal, 386 N.J. Super. 246 (App. Div. 2005).  Today, the Appellate Division was “tasked with deciding whether [New Jersey’s State’s Rental Assistance Program, known as] S-RAP, which ‘provide[s] rental assistance grants comparable to the federal [S]ection 8 program, N.J.S.A. 52:27D-287.1, is analogous to the Section 8 voucher program in prohibiting the eviction of a tenant solely for non-payment of additional rent charges.”  In an opinion by Judge Suter, the Appellate Division found that S-RAP requires the same result as does Section 8.

Judge Suter noted that in Sudersan, the Appellate Division applied the Supreme Court’s decision in Housing Auth. & Redev. Agency v. Taylor, 171 N.J. 580 (2002), which involved a public housing program, to Section 8.  Both programs “shared the same principle of assisting low income families with affordable housing; both set an income limit on the amount of rent collectable by a landlord; and both apply to federally funded providers of housing of last resort.”  Federal law limited the amount of rent for which a tenant could be held responsible.

S-RAP, Judge Suter said, was “similar to the Section 8 voucher program,” and in fact was modeled on Section 8.  She proceeded to document the various ways in which that is so.  Plaintiff, the landlord, who had won an eviction below, argued that S-RAP was “comparable,” but not “identical,” to Section 8, and that therefore a different result was required.  Judge Suter did not agree.  Given the strong similarities between the programs, “[t]he landlord offers no practical reason why a participant in the state program should be subject to eviction while their counterparts in the federal program are not.”  She rebuffed an argument by the landlord based on certain New Jersey regulations, noting that there were analogous federal regulations to the same effect.

Nor did the fact that the lease, whose form had been approved by the New Jersey Department of Community Affairs (“DCA”), permitted eviction based on non-payment of additional rent require a ruling for the landlord.  The lease was not in evidence, and even if it had been, that provision violated the regulations.  Any approval of the lease by DCA was only as to its form, not its substance, which was not permitted to contravene the regulations.

There was one appellate practice aspect in this opinion.  After the Special Civil Part had entered judgment for possession, and plaintiff had appealed to the Appellate Division, the Special Civil Part purported to vacate the judgment of possession for the very reason that today’s Appellate Division did.  Later, however, the Special Civil Part reversed itself and vacated its vacation of the judgment for possession, on the grounds that Rule 2:9-1 had deprived that court of jurisdiction once the appeal was filed.  Judge Suter observed that the Special Civil Part was correct in its view of Rule 2:9-1.  There are not many cases that address that rule.  Today’s opinion, though not primarily about that issue, adds to that slim body of caselaw.