                                NOT FOR PUBLICATION WITHOUT THE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-1533-19T3

GOLDEN APPLE HOLDINGS,
LLC,

          Plaintiff-Respondent,

v.

ESTATE OF CARIDAD PEREZ,

          Defendant,

and

MAGALY LYDECKER,

     Defendant/Intervenor-Appellant.
________________________________

                   Argued telephonically 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-012202-19.

                   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, Magaly Lydecker, appeals from a

judgment of possession and a warrant of removal entered following a bench trial

during which the trial judge concluded that she was not 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 3, 2019. In October

2019, the landlord, Golden Apple Holdings, LLC (the Landlord), filed a

summary dispossession action seeking to evict Lydecker and her adult son from

an apartment in a building in West New York.

      Two witnesses testified at trial. The Landlord called the project manager

for the apartment building, and Lydecker testified concerning her residence in

the apartment.

      A certificate of registration, which was admitted into evidence,

established that the Landlord purchased the building in February 2018. At that


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                                      2
time the apartment at issue was already occupied and the project manager

explained that he became involved with the building in January 2019. The

Landlord submitted a February 1999 lease, which a prior landlord had signed

with Caridad Perez (the Lease). The Lease was month-to-month and it did not

have a provision addressing what happen if the tenant died.

      The Landlord asserted that in January 2019, Lydecker informed it that her

mother, Perez, had died in June 2018. Thereafter, in January and February 2019,

the Landlord sent several notices to the apartment. The notices were addressed

to "The Estate of Caridad Perez and Unauthorized Occupants" and directed the

occupants to cease violating the Lease and to vacate the apartment.

      The Landlord took the position that because Perez was no longer living in

the apartment, Lydecker and her son were unauthorized occupants of the

apartment and they were violating the Lease by occupying it without Perez. 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: Daughter – Magaly Lydecker.

                  No other persons will be permitted to reside in
            the Premises without the Landlord's written consent.
            Any change in the persons who are residing at the

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                                       3
            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 Lydecker and her son could only stay in the apartment with

Perez, and when Perez died they became unauthorized occupants. In addition,

the Landlord relied on paragraph 14 of the Lease, which states that the tenant

could not sublease the apartment without the Landlord's prior written consent.

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.

      Lydecker testified that she had lived in the apartment since before 1999.

She explained that her son was born in 1995 and that they had lived in the

apartment continuously since his birth. She also explained that following her

mother's death in June 2018, she had paid the monthly rent for the apartment,

though counsel acknowledged that rent had not been paid for one month. She

went on to testify that each month from July 2018 she would send a money order

to the Landlord.




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                                       4
      The project manager testified that the Landlord does not retain physical

copies of checks or money orders. Instead, the Landlord keeps a record of

payments received in a computer database and the money orders are shredded

after they clear. That record, which was attached to the complaint, showed that

the rent for the apartment had been paid consistently through January 2019, at

which point the Landlord stopped cashing the money orders. The Landlord

produced copies of two money orders sent in December 2018 and January 2019.

Those copies, however, did not include a copy of the back.

      During her testimony, Lydecker stated that she would sign the back of the

money orders and put her name on the front of the money orders.             She

acknowledged that the copies produced by the Landlord did not show her name

on the front of the two money orders. In addition, the project manager testified

that the Landlord had filed an action for non-payment of rent against Lydecker

in June 2019, but that action had been dismissed.

      Based on that testimony, the trial judge found that the controlling lease

was the February 1999 Lease signed by Perez. The judge then construed the

Lease to require Lydecker to vacate the apartment because Perez died. With

very little analysis, the judge concluded that Lydecker was not a functional

tenant. In that regard, the judge reasoned that there was no proof that the


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                                       5
Landlord consciously accepted rent payments from Lydecker after Perez had

passed away.

      On the record, the judge stated that she was granting a judgment of

possession to the Landlord. No judgment, however, was included in the record

submitted to us. Instead, the record only includes a warrant of removal ordering

Lydecker and her son to vacate the apartment by December 16, 2019. After

Lydecker appealed, we granted a stay of the judgment of possession and warrant

pending this appeal.

                                       II.

      On appeal, Lydecker makes five arguments. She contends: (1) the trial

court erred in admitting the Lease as a business record; (2) the trial court erred

by not joining Lydecker and her son as indispensable parties; (3) the notices to

cease and quit were defective; (4) the Landlord waived its right to evict

Lydecker by dismissing the action that was filed in June 2019 for non-payment

of rent and demanding rent in the October 2019 action; and (5) the trial court

erred in its analysis of whether Lydecker is a functional tenant.

      Having reviewed the record, we conclude that the trial court's analysis of

the functional tenant issue was inadequate and we remand for a new trial.




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                                        6
Accordingly, we need not reach the other issues because they can be addressed

at the new trial.

      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

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).


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                                         7
       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 who is also

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.

       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)


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                                       8
(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 Lydecker was a functional tenant. Lydecker's unrebutted testimony

established that she continuously resided in the apartment since the 1990's.

Indeed, before us the Landlord conceded that fact.

      Lydecker also testified that following the death of her mother, she paid

the rent for the apartment. The Landlord contended that it did not know that

Lydecker was the person paying the rent and, therefore, did not acquiesce to her

financial contributions. The record at trial, however, does not support that

position. The only witness who testified on behalf of the Landlord was a project

manager who became involved with the building in January 2019. Accordingly,

that project manager had no firsthand knowledge as to what other

representatives of the Landlord knew concerning Lydecker's payments.

      The Landlord also produced front copies of two money orders, sent in

December 2018 and January 2019, to support the position that it did not know

Lydecker was making the payments.          Those documents, however, were

incomplete because the backs of the money orders were not displayed.


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                                       9
      In short, there was insufficient analysis by the trial judge of the testimony

presented to fairly evaluate whether Lydecker could establish that she was a

functional tenant. The trial judge failed to adequately address the evidence that

had been presented and the judge's finding that Lydecker was not a functional

tenant is not supported by substantial credible evidence in the record.

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 not supported by the record, we direct that on remand the

matter is to be tried before a new judge.

      Reversed and remanded. We do not retain jurisdiction.




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