NOT FOR PUBLICATION WITHOUT THE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-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. LT-
3936-17.
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
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.
2 A-5036-16T4
Prior to her death, Sylvia had resided at the second floor
apartment of XX Myrtle Avenue in Edgewater (premises), a three-
unit 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).
3 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.
4 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]
5 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
6 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, under-
tenants 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
7 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
8 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:
9 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
10 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.
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