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Mitchell v. First Real Estate Equities

February 29, 1996

J.C. MITCHELL, PLAINTIFF-RESPONDENT,
v.
FIRST REAL ESTATE EQUITIES, INC., A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Union County.

Approved for Publication February 29, 1996.

Before Judges Baime, Villanueva and Kimmelman. The opinion of the court was delivered by Kimmelman, J.A.D. (temporarily assigned).

The opinion of the court was delivered by: Kimmelman

The opinion of the court was delivered by KIMMELMAN, J.A.D. (temporarily assigned).

Defendant appeals from a Special Civil Part award of double damages in the amount of $758, for failure to refund to plaintiff the balance due on a security deposit pursuant to N.J.S.A. 46:8-21.1. We reverse and remand for the entry of judgment in accordance with this opinion.

The facts are relatively simple and not in dispute. The matter resolves itself into a determination as to when the lease in question was terminated and a mathematical calculation of the amount due. Plaintiff, as tenant, was subject to a one-year lease of an apartment located at 157 West Third Avenue, Roselle, New Jersey. The lease ran for a term from June 1, 1994, through June 1, 1995, at a monthly rental of $620. A security deposit with accumulated interest amounted to $979 and was held by defendant as landlord.

On February 7, 1995, without notice and without payment of the February rent, plaintiff surreptitiously vacated the apartment. After being informed by the building superintendent that the apartment was vacated, defendant notified plaintiff by letter dated February 15, 1995, sent by certified mail, that plaintiff "broke the lease agreement" and that rent for February 1995 and March 1995 totaling $1314 would be charged against the security deposit of $979, leaving a balance due defendant of $335. Immediate payment of $335 was demanded.

In an attempt to mitigate damages, defendant was able to re-rent the apartment commencing March 3, 1995, at a monthly rental of $600 or $20 per month less than the rent plaintiff was required to pay for each of the three months remaining under plaintiff's lease.

On March 6, 1995, plaintiff filed a pro se complaint in the Special Civil Part for the return of the security deposit of $979 claiming that he moved out on February 5, 1995, and that defendant had not returned his security deposit. Whether plaintiff moved out on February 5, 1995, or on February 7, 1995, as claimed by defendant, is not now material.

At the trial, defendant's counsel conceded owing plaintiff $359 but offered no calculation to support that figure. Nevertheless, the trial court, without inquiring as to the method of calculation, accepted that figure, doubled it because the balance of the security deposit had not been returned to plaintiff within 30 days of February 5, 1995, and arrived at a judgment of $758 *fn1 plus court costs. Simply put, the trial court, without taking any testimony, failed to consider that it was plaintiff who breached the lease.

The preliminary issue is when the 30-day period for the doubling of security deposit funds begins to run. N.J.S.A. 46:8-21.1 provides in pertinent part as follows:

Within 30 days after the termination of the tenant's lease . . ., 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 or earnings accumulated thereon, less any charges expended in accordance with the terms of a . . . lease . . . to the tenant . . . . The interest or earnings and any such deductions shall be itemized and the tenant . . . notified thereof by personal delivery, registered or certified mail.

In any action by a tenant . . . for the return of moneys due under this section, the court upon finding for the tenant . . . 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.

Here, the plaintiff's (tenant's) lease ran until June 1, 1995, and was not terminated by plaintiff's premature vacation of the apartment whether it was on February 5, 1995 or February 7, 1995. Plaintiff's moving out was a breach of the lease rather than a termination within the meaning of the statute. Accordingly, the 30-day period within which the security deposit must be returned did not commence to run on either of said dates. Because of defendant's successful effort at mitigation, we regard the termination of the lease to have been March 3, 1995, the date on which defendant ...


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