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Presberg v. Chelton Realty

July 11, 1975

CY PRESBERG, INDIVIDUALLY AND STANDARD GASKET INC. A NEW JERSEY CORPORATION, PLAINTIFFS,
v.
CHELTON REALTY INC., A NEW JERSEY CORPORATION AND ELLIOT TARADASH AND MAX GROSSMAN, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS



Susser, P.J.D.C.

Susser

[136 NJSuper Page 79] Plaintiff's legal argument in opposition to defendant's motion for summary judgment presents an issue of first impression. Are the provisions of N.J.S.A.

46:8-21.1 applicable to a nonresidential tenancy; that is, may a commercial tenant recover double the amount of his security upon landlord's failure to return the same within 30 days.

Plaintiff, a commercial tenant, leased nonresidential space from defendant landlord. Security was deposited by it for the faithful performance of the lease. It is alleged by plaintiff that it vacated the premises on March 15, 1974 and that within 30 days after the expiration of the term of the lease the landlord-lessor had failed to deliver tenant's security plus its portion of the interest earned thereon less any charges expended in accordance with the terms of the lease agreement. For this failure plaintiff is seeking double the amount of its security deposit.

Defendant-landlord seeks summary judgment on the ground that the statute upon which plaintiff relies is applicable only to residential property. N.J.S.A. 46:8-21.1 reads as follows:

Within 30 days after the expiration of the term of the tenant's lease or licensee's agreement, the owner or lessee shall return by personal delivery, registered or certified mail the sum so deposited plus the tenant's portion of the interest earned thereon, less any charges expended in accordance with the terms of a contract, lease, or agreement. Any such deductions shall be itemized and the tenant or licensee notified thereof by registered or certified mail. In any action by a tenant or licensee for the return of moneys due under this section, the court upon finding for the tenant or licensee shall award recovery of double the amount of said moneys, together with full costs of any action and, in the court's discretion, reasonable attorney's fees.

N.J.S.A. 46:8-26 sets forth the type of premises to which ยง 21.1 applies.

The provisions of this act shall apply to all rental premises or units used for dwelling purposes except owner-occupied premises with not more than two rental units.

It is plaintiffs contention in opposition to the motion for summary judgment that by use of the phrase "all rental

premises" it was the legislative intent to include every type of rental, whether commercial or residential, and that the wording "or units used for dwelling purposes except owner-occupied premises with not more than two rental units," merely limits the type of residential property to which the act is to be applied. Defendant contends, however, that the term, "used for dwelling purposes," refers to both "premises or units" and that the statute is to be applied solely to residential property except owner-occupied premises with not more than two rental units. The interpretation urged by plaintiff appears to be a tortured one not reflective of the legislative intent.

Our courts have uniformly held, in construing a statute with two imperfect expressions, that the court should select that view which accords with the probable legislative intent. Roman v. Sharper , 53 N.J. 338 (1969). Of course, in statutory construction the legislative intent may be implied from language used or inferred on grounds of policy or reasonableness. Harvey v. Essex Cty. Bd. of Freeholders , 30 N.J. 381 (1959).

In construing this statute the task of the court is to seek out the legislative intent, and to that end it should consider any history which may be of aid. ...


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