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Durante v. Gadino

Decided: February 3, 1978.

JOHN J. DURANTE, T/A FRANKLIN SQUARE BUILDERS, A SOLE PROPRIETORSHIP, PLAINTIFF,
v.
ROGER GADINO, ETC., ET AL., DEFENDANTS



Morrison, J.c.c. (temporarily assigned).

Morrison

[157 NJSuper Page 133] Plaintiff John J. Durante, t/a Franklin Square Builders, brings a motion for summary judgment as owner of an apartment complex against 19 various tenants residing therein. Plaintiff landlord had commenced separate summary dispossess actions in the Bergen County District Court against each of the defendants herein for failure to pay the rent due for the month of October 1977. By order dated December 6, 1977 these actions were consolidated and removed to the Superior Court.

Each of the defendants is a tenant under a written lease or renewal thereof. A separate agreement was entered into by each of the defendants upon commencement of the initial lease, stating:

Receipt is acknowledged of the sum of $210.00*fn1 as full payment of refurbishing, repainting and repairs due to normal use, wear and tear of the above-mentioned apartment at the conclusion of this lease after the tenant has vacated.

No provision is made in the lease for payment by tenants of a security deposit. In fact, that particular paragraph of the lease which contains a provision for a security deposit, paragraph 31, has been stricken from the terms of the lease altogether.

On October 1, 1977 defendants served plaintiff with identical letters demanding that plaintiff apply the $210-$260 to the October rental, and tendered to plaintiff the difference between the $210-$260 and the actual rental for October 1977. Plaintiff returned the partial payment to each defendant, demanding that the rental for that month be paid in full.

Plaintiff thereupon instituted summary dispossess actions against each of the defendants for nonpayment of the October 1, 1977 rent. After consolidation and transfer of the various tenancy cases to the Superior Court, and upon the date on which the motion for summary judgment was returnable, January 6, 1978, the court ordered that each defendant pay plaintiff the difference between the $210-$260 and the actual rental due for October 1977.

The narrow issue before the court is whether monies received by the landlord at the inception of the lease "as full payment of refurbishing, repainting and repairs due to normal

use, wear and tear * * * at the conclusion of this lease after the tenant has vacated" are subject to the mandates of the "Security Deposit Law," N.J.S.A. 46:8-19 et seq.

N.J.S.A. 46:8-19 begins as follows:

Whenever money or other form of security shall be deposited or advanced on a contract, lease or license agreement for the use or rental of real property as security for performance of the * * * lease * * * or to be applied to payments upon such * * * lease * * * when due , such money or other form of security, until repaid or so applied * * * shall continue to be the property of the person making such deposit or advance and shall be held in trust by the person with whom such deposit or advance shall be made for the use in accordance with the terms of the * * * lease * * * and shall not be mingled with the personal property or become an asset of the person receiving the same. [Emphasis supplied]

This provision also requires, among other things, that the landlord notify the tenant of the name and address of the banking institution or savings and loan association ...


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