                                NOT FOR PUBLICATION WITHOUT THE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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3733-18T2

MADHUBALA AGARWAL,

          Plaintiff-Appellant,

v.

MARVIN SIMMS, TYNAJA M.
GRAVES, and SHYQUAN Z.
DIXON,

     Defendants-Respondents.
______________________________

                   Argued telephonically May 28, 2020 –
                   Decided June 25, 2020

                   Before Judges Koblitz, Whipple and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Docket No. LT-007386-18.

                   Anthony F. Gralewski argued the cause for appellant.

                   Brian Rans argued the cause for respondents (Northeast
                   New Jersey Legal Services, attorneys; Brian Rans, of
                   counsel and on the brief).

PER CURIAM
        This appeal began as a dispute over the non-payment of rent between the

landlord, plaintiff Madhubala Agarwal, and her tenants, defendants Marvin

Simms, Tynaja M. Graves, and Shyquan Z. Dixon. Plaintiff appeals from a

March 21, 2019 decision, staying the execution of a warrant of removal until

plaintiff surrenders a payment of six times the monthly rent to the defendants

for relocation assistance.    Because the complaint was improperly filed, we

dismiss the complaint without prejudice.

        In February 2018, plaintiff leased the basement apartment of a residence

she owned in Jersey City to defendants for $1501 per month. On July 2, 2018,

plaintiff filed a landlord-tenant summons and verified complaint against

defendants seeking possession because of the non-payment of $3500.89. The

matter then continued to a Marini1 proceeding where defendants agreed rent was

due and owing. On July 24 and August 9, 2018, the court ordered defendants to

deposit $2512 and $1500, respectively, with the court.

        The defendants failed to deposit all outstanding rent and the court entered

a judgment of possession on September 10, 2018. Three days later, the court

issued a warrant of removal with a lockout scheduled for September 27.




1
    Marini v. Ireland, 56 N.J. 130 (1970).
                                                                           A-3733-18T2
                                         2
      Three days before the scheduled lockout date, the Jersey City Division of

Zoning issued a notice of violation to plaintiff because there was a "[second]

apartment created without prior zoning approval and a [certificate of

occupancy]," at the residence. Two days later, defendants filed an order to show

cause to vacate the judgment of possession and dismiss the landlord-tenant

action or in the alternative allow the lockout to proceed after plaintiff provides

relocation assistance.

      On November 1, 2018, the parties appeared before the court for a hearing.

Warren Curtis, a zoning inspector for the Division of Zoning, testified that after

an inspection of the premises, he wrote a notice of violation that required

plaintiff give notice to defendants to vacate in order for plaintiff to comply with

the zoning ordinance.      Ani Kuma Agarwal, plaintiff's husband and the

residence's building manager, testified. He conceded that there were two units

at the residence and explained that when the building was purchased, it was a

two-unit building. Although Mr. Agarwal testified that he was told, when he

went to obtain a certificate of occupancy, the residence was permitted to be "up

to two families," he had no proof the residence was allowed to be two units.

      The court found defendants' apartment was illegal, "relocation [was]

appropriate," and ordered plaintiff to provide defendants with six times the


                                                                           A-3733-18T2
                                        3
monthly rent, $9006, for relocation assistance pursuant to N.J.S.A. 2A:18-

61.1(g)(3) and h. The court set a move-out date for January 2, 2019, and

explained to the parties he may reconsider the move-out date if the relocation

assistance is not paid.

      In February 2019, defendants sent a letter to the court requesting a hearing

and notifying the court that plaintiff never paid the relocation assistance. On

March 21, 2019, the parties appeared in court and plaintiff verbally requested

that the court reconsider its determination regarding relocation assistance. The

court denied the request and extended the lockout period indefinitely until the

relocation assistance is paid.

      This appeal followed.

      On appeal, plaintiff argues the court should have enforced the judgment

of possession and relocation assistance is not due because defendants were

evicted for failure to pay rent pursuant to N.J.S.A. 2A:18-61.1(a). Defendants

contend that this court should affirm the trial court's decision, to stay the

judgment of possession until plaintiff pays the rental assistance, because a

landlord cannot evict a tenant from an illegal apartment for the non-payment of




                                                                          A-3733-18T2
                                        4
rent and the court correctly held plaintiff must pay defendants relocation

assistance pursuant to N.J.S.A. 2A:18-16.1(g)(3) and (h).2

      Although we review a trial court's conclusions of law de novo, Manalapan

Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995), we are

bound by the trial court's factual findings as long as they are supported by

adequate, substantial and credible evidence in the record, Rova Farms Resort,

Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

      The Anti-Eviction Act (Act), N.J.S.A. 2A:18-61.1 to -61.12, was enacted

"'to protect residential tenants against unfair and arbitrary evictions by limiting

the bases for their removal.'" Magiles v. Estate of Guy, 193 N.J. 108, 121 (2007)

(quoting 447 Associates v. Miranda, 115 N.J. 522, 528 (1989)). N.J.S.A. 2A:18-

61.1(g) provides it is permissible to evict tenants to correct "an illegal occupancy

because [the landlord] has been cited by local or State . . . zoning officers and it

is unfeasible to correct such illegal occupancy without removing the tenant . . .

." Miah v. Ahmed, 179 N.J. 511, 518 (2004) (citation omitted) (alterations in

original).   "In granting landlords that authority, however, the Legislature

imposed certain obligations on them to assist soon-to-be-evicted [tenant(s)] by



2
  Defendants also asserted plaintiff's appeal was untimely, however, counsel
conceded that the appeal was timely during oral argument.
                                                                            A-3733-18T2
                                         5
adding section h to the Act." Id. at 518 (citation omitted). N.J.S.A. 2A:18-

61.1(h) provides, in pertinent part:

            (a) If a residential tenant is displaced because of an
            illegal occupancy in a residential rental premises . . .
            and the municipality in which the rental premises is
            located has not enacted an ordinance pursuant to
            [N.J.S.A. 2A:18-61.1(g)(3)], the displaced residential
            tenant shall be entitled to reimbursement for relocation
            expenses from the owner in an amount equal to six
            times the monthly rental paid by the displaced person.

            (b) Payment by the owner shall be due five days prior
            to the removal of the displaced tenant.

      Under the Act, a landlord can also evict a tenant from a residential

apartment if the tenant "fails to pay rent due and owing under the lease whether

the same be oral or written." N.J.S.A. 2A:18-61.1(a). However, "the amount

claimed to be due must be 'legally owing' at the time the complaint was filed."

McQueen v. Brown, 342 N.J. Super. 120, 126 (App. Div. 2001) (quoting Chau

v. Cardillo, 250 N.J. Super. 378, 384 (App. Div. 1991)).

      In McQueen, 342 N.J. Super. at 130, we reversed the dismissal of a

plaintiff's summary dispossess complaint for the nonpayment of rent even

though the plaintiff did not obtain an occupancy permit for the apartment.

There, we were asked to determine whether a "plaintiff's failure to obtain an

occupancy permit, 'standing alone,' renders the lease illegal and unenforceable,


                                                                        A-3733-18T2
                                       6
thereby precluding [the] plaintiff from summarily recovering the premises from

the tenants for non-payment of rent." Id. at 125-26.

      We concluded a landlord's failure to acquire an occupancy permit does not

automatically void a lease; however, other equitable factors come to bear on the

issue. Id. at 128. Those factors include whether the public policy of the

underlying law would be contravened, if voiding the lease will actually further

that policy, the burden or detriment on the parties if the lease is voided, and the

benefit the party seeking to avoid the bargain has enjoyed. Ibid. Applying these

factors, we determined:

            In promulgating the ordinance [requiring an occupancy
            permit], it is fairly evident that the [c]ity endeavored to
            assure that the rental housing stock would be safe and
            habitable before a tenant moved into a dwelling unit. .
            . . That policy is not advanced by a rule that would
            declare a lease void because the landlord did not obtain
            an occupancy permit at its inception, or even thereafter,
            where the tenants have been residing in the premises for
            almost five years, paying rent, and receiving the
            benefits of the occupancy, without demonstrating that
            the premises are uninhabitable. In other words, the
            policy of protecting tenants from dangerous living
            conditions is not promoted by declaring a lease invalid
            in the absence of demonstrated serious housing
            violations, either at the inception of the lease, or
            thereafter.

            [Id. at 128-29.]



                                                                           A-3733-18T2
                                        7
We held "the lease should not have been declared unenforceable against the

landlord with the effect that the tenants were permitted to occupy the apartment

rent-free for those months where the landlord was without an occupancy

permit." Id. at 129.

      Subsequently, our Supreme Court in Miah, 179 N.J. at 529, determined

N.J.S.A. 2A:18-61.1(h) requires a landlord to provide tenants evicted because

of a zoning-ordinance violation for an illegal dwelling, with a fixed amount of

relocation-assistance benefits equaling six-times the monthly rent. In Miah, a

tenant rented an attic apartment for about seven years when the city determined

that dwelling violated a local zoning ordinance. Id. at 515. After learning the

apartment was illegal, the landlord sent a notice to the tenant indicating that the

tenant had to vacate the premises by a certain date and may be entitled to

relocation assistance. Ibid. The tenant, at some point, stopped paying rent and

continued to reside in the apartment beyond the specified date. Id. at 516.

      While determining how much relocation assistance the tenant was entitled

to, the Court highlighted the remedial objectives behind N.J.S.A. 2A:18-61.1(h).

Id. at 524. The Court noted, among other things, "[i]llegal apartments, which

often take the form of impermissible attic, basement, and garage units, pose

significant fire, health, and safety risks that extend well beyond the premises,"


                                                                           A-3733-18T2
                                        8
id. at 524, and "[b]y equipping those residents with funds to relocate, section h

is designed to protect evicted tenants from the hardships of displacement while

facilitating municipal efforts to weed out illegal apartments," id. at 525. The

Court found these remedial policies supported its determination that landlords ,

in such circumstances of proven illegality, are required to pay relocation

assistance equal to six times the monthly rent. Id. at 522-26.

      The Court acknowledged the reality that displaced tenants may owe their

landlords past-due rent but nonetheless held that a landlord cannot reduce the

relocation-assistance obligation by the amount of past-due rent or other damages

owed by the tenant. Id. at 526-28. The Court explained that the landlord is not

without a remedy, however, as he or she can advance their claim against the

tenant in an independent plenary action. Id. at 527-28.

      Here, plaintiff cannot evict defendants from an illegal apartment for

nonpayment of rent because the rent is not "legally owing." Because the matter

was filed as a non-payment of rent case under N.J.S.A. 2A:18-61.1(a), we

dismiss the complaint without prejudice.




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