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Burns v. Westamerica Corp.

November 19, 1975

JAMES BURNS AND THOMASINA BURNS, HUSBAND AND WIFE, PLAINTIFFS,
v.
WESTAMERICA CORP., A CORPORATION OF THE STATE OF NEW JERSEY T/A OCEAN HARBOUR APTS., DEFENDANT



Horn, A.j.s.c.

Horn

Plaintiffs husband and wife have instituted this action seeking, among other things, the recovery of their security deposit of $198, and $198 statutory damages pursuant to the terms of N.J.S.A. 46:8-21.1.

It is not disputed that on or about April 28, 1972 plaintiffs as lessees entered into a residential lease with defendant as lessor for apartment R-2, 4701 Harbour Beach Boulevard, Brigantine, New Jersey, for a term of one year. The lease provided for a monthly rental of $198 and also for the advance deposit by plaintiffs of the aforementioned $198. Plaintiffs remained at the apartment after the expiration of this lease, thereby becoming holdover tenants and presumptively establishing a month-to-month tenancy. N.J.S.A. 46:8-10.

Sometime in August 1973 defendant lessor instituted a summary dispossess action pursuant to N.J.S.A. 2A:18-53 and obtained judgment of possession for nonpayment of rent. This was done on the erroneous belief by lessor that the rent for August had not been paid when in fact it had been, during lessees' absence from the area.*fn1 Plaintiffs vacated the premises on September 1, 1973 and demanded return of their security deposit, which defendant refused to return on the ground that plaintiffs had failed to give termination notice pursuant to the common law. 23 N.J. Practice (Landlord and Tenant Law), § 3205 at 474 (1962), and cases cited therein.

The issues are whether plaintiffs are entitled to a return of their $198 security deposit at all and, if so, whether they are also entitled to the statutory penalty as well.

A month-to-month tenancy can only be terminated on at least one month's notice. Hertzberg v. Siegel , 8 N.J. Super. 226 (App. Div. 1950); 51C C.J.S. Landlord and Tenant § 150(3) at 451. Defendant asserts that plaintiff lessees failed to give this requisite notice before quitting the premises and that such failure entitles lessor to retain the security deposit as liquidated damages. Lessees, on the other hand, urge that the requirement of notice is dispensed with because lessor's action in bringing summary dispossess proceedings obviated the legal requirement of notice.

It has been held that any matters determined in lessor's dispossess proceeding are not res judicata. Vineland Shopping Center, Inc. v. DeMarco , 35 N.J. 459 (1961); Levine v. Seidel , 128 N.J. Super. 225 (App. Div. 1974); Academy Spires, Inc. v. Jones , 108 N.J. Super. 395 (Law Div. 1970). Thus, the mere fact that defendant had obtained a judgment of possession has no prejudicial influence upon the merit of plaintiffs' contentions in the instant action.

Although a dispossession judgment does not end a tenancy for all purposes, Tanella v. Rettagliata , 120 N.J. Super. 400 (Cty. Ct. 1972); Schlesinger v. Brown , 116 N.J. Super. 500 (Cty. Ct. 1971); Hunter v. Reiley , 43 N.J.L. 480 (Sup. Ct. 1881), it does operate as a termination of the tenancy by the lessor for some purposes and justifies the lessee's immediate vacation of the premises. 18 N.J. Practice (County, District and Municipal Courts), § 1566 at 303 (1971). Plaintiffs thus acted properly in quitting the premises after the judgment of possession had been entered, inasmuch as they had received no assurance that it would be vacated.

Since plaintiff lessees vacated the apartment in compliance with the judgment, defendant lessor is not entitled to payment of rent, after their leaving the premises, for the month following the judgment. Peters v. Weiner , 109 N.J.L. 10 (Sup. Ct. 1932). Nor did the eviction judgment operate, ipso facto , to annul plaintiffs' rights to recover

the security deposit. Watson v. Jaffe , 121 N.J. Super. 213 (App. Div. 1972).

Defendant mistakenly instituted its eviction action. It also mistakenly believed that the ensuing judgment would have no effect upon its right to receive a termination of lease notice. But its error has no effect on the lessees' legal rights, especially when they were not responsible for lessor's mistake of fact as to the rent having been paid or its mistake of law as to the effect of the judgment. There is no charge of fraud or other conduct on ...


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