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The issue was again presented in Riverview Realty, Inc. v. Williamson, 284 N.J.Super. 566 (App.Div.1995). In that case, an owner of a property subject to a municipal rent control ordinance presented a lease to a month-to-month tenant providing that it would automatically terminate within ten days of the tenant's death. Id. at 567-68. The tenant refused to sign the proposed lease, and the landlord brought an action for eviction on the ground that the tenant had rejected a reasonable change in the lease terms. Id. at 568. The Appellate Division affirmed the trial court's determination that the landlord could compel the tenant to sign a lease containing the termination at death clause, but declined to pass upon the validity of this clause, stating:
In Center Ave. Realty, Inc. v. Smith, supra, 264 N.J.Super. at 353, the court left “for another day, the question of the scope of our Anti-Eviction Act vis-?vis occupant family members of deceased tenants.?They did so because 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.
The Appellate Division has not addressed this issue again since Center Ave. Realty and Riverview Realty. FN2 Moreover, the Legislature has not addressed the succession rights of occupant family members, as suggested in both opinions. Therefore, the court was left to decide whether Jennings was entitled to the protections of N.J.S.A. 2A:18-61.1 as an “assign[ ], under-tenant[ ] or legal representative[ ]?of Guy.
Although the Anti-Eviction Act does not include any definition of these terms, they have well-established meanings. An “assign,?or “assignee,?is “[o]ne to whom property rights or powers are transferred by another.?Black's Law Dictionary 114 (7th ed.1999). An “under-tenant,?which is synonymous with a “sublessee,?is defined as “[a] third party who receives by lease some or all of the leased property from a lessee and can be .?Id. at 1528, 1439. Guy did not transfer her rights under the lease with plaintiff to Jennings or sublet the apartment to her. Therefore, Jennings clearly was not an “assign?or “under-tenant?of Guy.
A “legal representative,?also referred to as a “personal representative,?is defined as “[a] person who manages the legal affairs of another because of incapacity or death, such as the executor of an estate.?Id. at 907, 1304. The record does not indicate whether Jennings was the executor or administrator of Guy's estate. However, even if Jennings were her mother's legal representative, the court previously concluded that N.J.S.A. 2A:18-61.1 should not be “construed literally?to allow a legal representative to “succeed to his decedent's perpetual term,?which would have the effect of a “conversion of the present virtual life interest of the tenant into a virtual fee simple [.]?Ctr. Ave. Realty, supra, 264 N.J.Super. at 351. The Appellate Division adhered to this construction of N.J.S.A. 2A:18-61.1, and therefore, concluded that Jennings was not entitled to the protections of the Anti-Eviction Act with respect to the apartment plaintiff leased to her mother.
In reaching this conclusion, the court recognized that there are policy arguments supporting the view that the protections of the Anti-Eviction Act should be extended to occupant family members of a deceased tenant in some circumstances. Consequently, we again observe that this is a subject that may be appropriate for legislative attention. Accordingly, such a surviving family member is not entitled to succession rights to the decedent's tenancy under either federal or state law.
FN1. Although not documented in the record, DCA is apparently willing to pay a Section 8 rent subsidy for Jennings that would enable her to pay the rent. However, plaintiff refused to enter into a new Housing Assistance Payment Contract and lease with Jennings under which she would become the tenant of the apartment formerly leased to Guy.
FN2. The Appellate Division addressed a similar issue in WG Associates v. Estate of Matilda Roman, 332 N.J.Super. 555, 557 (App.Div.2000), which held that “a person who occupies an apartment by virtue of being a member of a protected tenant's household cannot extend or create a tenancy relationship by paying rent to the landlord after the protected tenant dies.?However, WG Associates involved the interpretation of provisions of the Senior Citizen and Disabled Protected Tenancy Act, N.J.S.A. 2A:18-61.22 to -61.39, which are not contained in the Anti-Eviction Act.
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