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Musselman v. Carroll

April 12, 1996

WILLIAM MUSSELMAN AND CHANDRA RAMU, PLAINTIFFS-RESPONDENTS,
v.
KAREN CARROLL, DEFENDANT/COUNTERCLAIMANT-APPELLANT.



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

Approved for Publication April 12, 1996.

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

The opinion of the court was delivered by: VILLANUEVA

The opinion of the court was delivered by

VILLANUEVA, J.A.D. (retired and temporarily assigned on recall)

Defendant Karen Carroll appeals from the trial court's order dismissing her counterclaim for lost rent and ordering defendant to return plaintiffs' security deposit, minus certain charges for damages to the premises and a late fee. *fn1 We reverse and remand for entry of judgment on the counterclaim in favor of defendant/counterclaimant.

Defendant is the owner of a single-family house located at. 214 Larch Avenue, Teaneck, New Jersey. On or about August 29, 1994, defendant entered into a written lease of the premises with plaintiffs Chandra Ramu and William Musselman. While negotiating to rent defendant's house, plaintiffs advised defendant that they wished to have a month-to-month lease since they were hoping to buy a residence. In light of the fact that the plaintiffs might terminate the lease in a short period of time, defendant required a sixty-day notice-to-vacate provision so that she would have sufficient time to re-rent the premises. The signed lease provided that the term would be month-to-month and would begin on September 1, 1994, but plaintiffs agreed to provide defendant with sixty-days' notice of their intention to vacate. In addition, plaintiffs provided a security deposit equal to one and one-half months' rent.

Approximately two months after moving into the house, on or about November 15, 1994, plaintiffs sent a letter to defendant, stating they intended to move out on January 15, 1995. As a result of plaintiffs' notice, defendant sought to rent the house to Pam Aspen. Aspen allegedly agreed to rent the house so long as it would be available on January 15, 1995. As a result of this oral agreement, defendant sent a letter to plaintiffs on December 29, 1994. For some inexplicable reason, the trial court refused to consider this letter which confirmed plaintiffs' moveout date of January 15, 1995, and also advised plaintiffs that since defendant had re-rented the house as a result of their notice to vacate, defendant expected plaintiffs to move out by January 15, 1995.

In response, plaintiffs sent defendant a letter dated January 1, 1995, advising her that they would not vacate the house on January 15, 1995, as originally stated but that they intended to remain in the house until the end of January. Defendant contacted Aspen, who advised defendant that she already had given notice to her landlord that she would be leaving and that she had to either move into defendant's house by January 15 or find someplace else to live. Defendant sent another letter to plaintiffs advising them that she had re-rented the house and that they would be required to vacate the premises by January 15, 1995.

The uncertainty of the situation led Aspen to speak directly with the plaintiffs about their plans. Shortly after Aspen met with plaintiffs, she advised defendant that she would be unable to sign a lease because defendant could not assure her that the plaintiffs would move out by the fifteenth. Due to plaintiffs' unilateral extension of their move-out date, defendant lost Aspen as a tenant.

Defendant accepted the plaintiffs' payment of rent for the remainder of January, expecting plaintiffs to vacate by the end of that month. However, on February 4, 1995, plaintiffs sent defendant a letter with a rent check for the first two weeks of February, stating that they had no idea when they were going to move. Plaintiffs also advised defendant that she should not rent the premises without first checking with them. At that point, since defendant had no idea when the house would become available, she obviously was unable to re-rent the house.

On February 14, 1995, defendant, upset by plaintiffs' refusal to pay February's rent in full and afraid plaintiffs might not pay rent even for the remainder of February, sent plaintiffs a letter advising them that the remaining rent for February was due immediately and that she would file a notice of eviction if she did not receive the February rent by February 15, 1995. Despite the fact that plaintiffs clearly owed the remaining rent for February, they did not pay it but, instead, had their attorney send a letter to defendant's attorney asking to discuss the matter further. The trial court inexplicably refused to consider these two letters.

On February 16, 1995, when defendant still had not received the rent, she discussed filing a dispossess claim with a clerk in the Superior Court, Special Civil Part, who told her to file a complaint for possession indicating that she was seeking one and one-half months' rent, possession of the premises and costs. Defendant did so on that same day. We note that defendant did not have the advice of counsel at the time and claims to have not known the difference between an action for rent and an action for possession.

Plaintiffs sent defendant a letter dated February 16, 1995, which purported to enclose a check for the rent for the remainder of February and stated that they intended to "vacate the house at the end of February." The rent payment was not enclosed with the letter but came with a different letter a few days later in which plaintiffs indicated their intention to move out by the end of February. Plaintiffs' attorney then advised defendant by letter that plaintiffs ...


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