                                NOT FOR PUBLICATION WITHOUT THE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-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.
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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                                       2
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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                                        3
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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                                       4
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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                                        5
      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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                                        6
      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 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 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.
                                                                            A-1808-19T3
                                         7
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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                                        8
      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


                                                                          A-1808-19T3
                                        9
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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                                      10
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.
                                                                        A-1808-19T3
                                      11
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.




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                                      12
