On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. DC-8556-00.
Before Judges A.A. Rodríguez, Lefelt Lisa.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendants Dean and Danielle La Corte were tenants of plaintiff landlord, Lorril Company. Their written lease permitted either party to terminate the tenancy upon "two months written notice." Defendants provided such notice, but did not vacate the premises until forty-five days after the termination date mentioned in the notice. On the last date of defendants' occupancy of the premises, Lorril re-entered the apartment without a court order or defendants' permission and began to remove various appliances from the premises. Lorril sued to recover its rent, including double rent for the holdover period pursuant to N.J.S.A. 2A:42-5. Defendants counter-claimed for unlawful entry and return of their security deposit.
The trial judge awarded judgment in favor of Lorril after he doubled the rent defendants owed the landlord for the holdover period; doubled the tenants' security deposit, before considering whether the tenants' rent charges exceeded the deposit; and found that Lorril had unlawfully entered the apartment. The landlord appealed and argued two points: (1) defendants were not entitled to doubling of the security deposit because they owed rent in excess of the deposit; and (2) Lorril did not unlawfully enter the premises and thus defendants owed rent for the period after the alleged unlawful entry. We agree with Lorril's first point but because of our construction of the holdover statute, N.J.S.A. 2A:42-5, we need not deal with Lorril's second point, and we reverse and remand for entry of judgment in favor of Lorril in excess of the amount awarded by the trial judge.
We briefly set forth the relevant facts and pertinent procedural history. Under the lease, defendants were obligated to pay $945 monthly rent. The lease also required sixty-days written notice of an "intention to terminate/moveout." On February 23, 2000, defendants informed Lorril by letter that they would terminate on or before April 30, 2000. Less than one month after sending this first notice, defendants sent a second letter advising that they now intended to move on June 1, 2000, when defendants believed that the house they were building would be ready for occupancy.
On or about May 30, 2000, however, defendants informed the superintendent that their new home was not ready, they would be unable to move by May 31, and could not provide a firm date for their move. Defendants finally vacated on July 15, 2000. Defendants did not pay any rent for June or July, and Lorril claims it did not begin receiving rent for the apartment from a new tenant until August 15th, though this date was disputed by defendants.
Lorril contended, however, that the only accurate "moveout" notice it received was on July 15, when defendants actually left the premises. Therefore, according to Lorril, because rent was due on the first of the month and sixty-days "moveout" notice was required under the lease, the defendants owed rent for June, July, August and September. Further, Lorril argued that defendants held over after the date provided in their original "moveout" notice. Consequently, under N.J.S.A. 2A:42-5, Lorril was entitled to double rent for June and July.
The trial judge found that the tenants "did give notice, saying that they would be moving out as of May 31st because they were having a new house built." The judge further noted that "a statute . . . provides, if a tenant does give a notice to move out and then does not comply with it, they are liable [for] double the rent." The judge found that "the tenant did move out on July 15th," and awarded double rent for June and July.
The judge also found "that there was a wrongful entry on July 14th . . . . [when the landlord purported] to exercise dominion over the premises in moving refrigerators and things of that nature." The judge declined to award damages for the wrongful entry, but did conclude that "at that point, [the landlord cannot] claim rent for any rents that accrued after that particular date, i.e. August 1st and September 1st." The judge also found that Lorril failed to send defendants any notice regarding defendants' security deposit, which at the time defendants left the premises was $1,469.20, inclusive of interest. Thus, the judge found that the landlord did not itemize the interest or deductions and did not notify the tenant "by personal delivery, registered or certified mail" in accordance with N.J.S.A. 46:8-21.1. The judge, therefore, concluded that "if the notice is not sent within 30 days, that . . . you would double the entire amount of the security deposit. You can have deductions later from that, but you double the entire amount first."
The judge attempted to distinguish Kang In Yi v. Re/Max Fortune Prop. Inc., 338 N.J. Super. 534, 537 (App. Div.), certif. denied, 169 N.J. 610 (2001), from the present case because in Kang it was not disclosed whether the landlord had violated the notice provision of the statute. The case, therefore, is controlling, according to the trial judge, only "in those situations where you were dealing strictly with the nonreturn of the security ...