Dealing with unauthorized occupants is a troublesome issue for many affordable housing managers, but due to the requirements of affordable housing programs such as Section 8 and the Low-Income Housing Tax Credit (LIHTC), knowing who is living in a unit is critical. In subsidized programs such as Section 8, unauthorized occupants can be both a rent and an eligibility issue, while for LIHTC projects, the issue is eligibility. The results of a recent court case from New Jersey (Mansions Apartments v. Husband - April 2017) can be instructive in assisting managers in their understanding of the type of evidence that may be required to prove a case of unauthorized occupancy. Facts of the Case

• The resident (Husband) moved into the Section 8 project in 2007, occupying a one-bedroom apartment as the sole occupant. All rent was paid by Section 8 subsidy;
• On March 24, 2015, the landlord issued a "notice to cease" citing multiple violations, including "harboring a female unauthorized occupant, Michelle Dea, in the leased premises."
• The landlord issued a "Notice Terminating the Lease" on April 27, 2015 for failure to comply with the prior notice to cease. At this point, the harboring of "three other adult unauthorized occupants and multiple children" was also noted.
  • The resident was given until May 31, 2015 to vacate the unit.
• The resident refused to vacate and a trial was held on July 9, 2015.
• Both the manager and maintenance technician from the property testified on behalf of the landlord; the defendant testified on her own behalf.
• The manager testified that Dea sought to lease her own unit and provided her driver’s license as identification. The license listed the defendant’s unit as Dea’s address, and Dea stated that she "lived with a friend". This is what prompted the "notice to cease."
• The manager stated that she observed Dea "coming and going" at "all different times of the day," including weekends. The manager also testified that she saw "numerous children" and an adult male and other females at the unit.
• The manager did acknowledge that Dea’s mother and daughter lived at the complex.
• The Maintenance Tech testified that he observed Dea entering and leaving the unit on a daily basis.
• The defendant’s testimony included the following elements:
  • She insisted that Dea never lived in the unit, but that she had spent the night once two years earlier;
  • She stated that Dea visited two to three times per month, but then changed that to two to three times per week.
  • Many other elements of the testimony were inconsistent.

  Ruling of the Court The trial judge noted the inconsistencies in Husband’s testimony and called the testimony "a fabrication," and that he found her to be "completely unbelievable, incredible, and not telling the court the truth." On the other hand, he found the manager’s testimony to be "completely credible," "uncontroverted," and supported by the Maintenance Technician. The judge indicated that the driver’s license showing the defendant’s address, along with the testimony by staff established the unauthorized use of the unit and he granted the landlord possession and denied the defendant’s request for a stay pending appeal. On August 5, 2015, the defendant filed a motion seeking a stay for hardship reasons and on August 15, the motion judge granted the stay and removal from the unit was put on hold. Motion for Reconsideration On August 12, 2015, the defendant filed a motion for reconsideration, insisting that Dea did not live with her and Dea filed a certification stating that she did not live with the resident. She further stated that her license was copied when she applied for a unit at The Mansions and that management failed to produce the copy because it would not show the address of the defendant. Dea provided copies of documents listing her name and an address in another city, but the driver’s license was not one of the documents. The defense also argued that when management accepted rent for June and July 2015, which was after the termination date of May 31, a new tenancy was created. The motion judge denied the request for reconsideration and the defendant was locked from the apartment. The defendant appealed. The Appeal The landlord provided documentation that after the May 31 termination date, HUD subsidy funds on behalf of the defendant were not accepted and were in fact returned to HUD. The court was not persuaded by the defendant’s argument that seeing Dea "coming and going" in the vicinity of Husband’s apartment did not prove residency in the apartment and that failure to show a copy of the driver’s license should defeat the assertion that the address shown on the license was that of the defendant. The appeals court deferred to the judgment of the trial judge, since it was reasonable and supported by "adequate, substantial and credible evidence." The court also ruled that acceptance of rent after the May 31, 2015 termination date was not relevant, since nonpayment of rent was not the issue - unauthorized occupancy was. The court stated, "Unlike [non-payment of] rent, however, which can be cured retroactively, not all cases for eviction can be completely cured." Finding The appeals court found no error in the original trial and upheld the judgment of possession. The lesson for owners and managers from this case is that landlords can prevail in cases involving unauthorized occupancy. However, in order to do so, managers must carefully build the case for eviction. Eyewitness testimony, corroboration, and contemporaneous documentation are critical elements when attempting to prove unauthorized occupancy. Once it is suspected that a unit contains an unauthorized occupant, landlords should carefully prepare the case through observation and documentation. As noted in this case, which took nearly two years, prevailing in such cases may take time, but gaining possession of units due to unauthorized occupancy is possible. Back to news