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Yi v. Re/Max Fortune Properties

April 11, 2001


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, DC-14035-99.

Before Judges Pressler, Kestin and Ciancia.

The opinion of the court was delivered by: Kestin, J.A.D.


Submitted October 17, 2000

This case involves the construction and application of N.J.S.A. 46:8-21.1. That statute requires a landlord, within thirty days from the termination of a tenancy, to return the tenant's deposit including the tenant's portion of the interest accrued thereon, less valid charges. The statute provides further, upon failure to comply, for a doubling of the amount due and an award of litigation costs, together with such reasonable counsel fees as the court, in its discretion, may award.

The matter commenced with plaintiff's complaint for the relief provided by the statute and for punitive damages. It came before the trial court on plaintiff's motion for summary judgment. After vacating, by consent, a default against the landlord, the court held that plaintiff was not entitled to the prescribed doubling but nevertheless awarded plaintiff $600 in counsel fees and $53 for costs of suit. Punitive damages were denied. Plaintiff appeals from the denials and from the trial court's award of less than "full counsel fees and costs." We affirm as to the counsel fee award, court costs and the denial of punitive damages; and reverse as to the holding that plaintiff was not entitled to the prescribed doubling.

On May 6, 1998, plaintiff entered into a one-year lease commencing on June 1 of a unit in an apartment complex owned by defendant Linda Wong and managed, maintained and operated by defendant Re/Max Fortune Properties, Inc. As provided in the lease, plaintiff proffered a security deposit in the amount of $2,925.00, equivalent to one and one-half months' rent. In May 1999, the parties agreed to extend the lease for an additional three months.

It is undisputed that plaintiff left the premises on August 31, 1999, as agreed in the three-month extension. It is also undisputed that the landlord's check for $2,288.74, which represented the net of the $2,925.00 security deposit plus interest less an uncontested charge of $675.00 for damage beyond ordinary wear and tear, was dated October 6, 1999, and was received by plaintiff's attorney on October 11.

The trial court held that since plaintiff, by the time the suit was instituted, had received the appropriate net balance there was nothing left to double. The judge reasoned that the five-day [sic] delay was de minimis, but because the payment had not been made until plaintiff's attorney had sent a demand letter, a counsel fee was justified. The parties themselves had engaged in some negotiations during the period before counsel became involved.

Even though courts are empowered to apply equitable considerations in deciding disputes before them, such equities as may be seen to exist may not trump the law. See O'Boyle v. Prudential Ins. Co. of America, 241 N.J. Super. 503, 509 (App. Div. 1990)("When . . . the statutory language is clear, [courts] must apply it as written, not inject some lurking judicial suspicion that a better policy could or should be engrafted on the statutory scheme.").

N.J.S.A. 46:8-21.1 provides in relevant part:

Within 30 days after the termination 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 or earnings accumulated thereon, less any charges expended in accordance with the terms of a contract, lease, or agreement, to the tenant[.]

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. [emphasis added]

The statute establishes the landlord's obligations in unmistakable and definite terms, and clearly provides a mandatory remedy for default. See Gibson v. 1013 N. Broad Assocs., 172 N.J. Super. 191, 194-95 (App. Div. 1980)(holding that the penalty of awarding double damages is mandatory); see also London v. Rothman Realty Corp., 176 N.J. Super. 288, 290 (Cty. Dist. Ct. 1980). Much mischief would ensue if landlords or courts were permitted to manipulate the express provisions of the statute. Thus, we hold again that once a court determines that the thirty-day period prescribed by the statute expired without a return of ...

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