On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-0011294-05.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2006
Before Judges Skillman, Lisa and Holston, Jr.
The primary issue presented by this appeal is whether a tenant who vacates a residential unit based on the landlord's announced intent to personally occupy the unit bears the burden of proving in a wrongful eviction action that the landlord's failure to actually occupy the unit was arbitrary. We conclude that the landlord has the burden of proving that his or her failure to personally occupy the vacated unit was not arbitrary.
In June or July 2003, defendant leased to plaintiff a second-floor apartment in a two-family dwelling in Newark. The rent was $1,000 per month. Plaintiff paid $359 rent per month, and the Essex County Division of Welfare paid the balance under its temporary rental assistance program. At the beginning of the tenancy, the Division also paid an $818 security deposit on plaintiff's behalf.
In February 2004, defendant filed a summary dispossession action against plaintiff, which was based on plaintiff's anticipated loss of eligibility for temporary rental assistance and the damage she had allegedly caused to the apartment. This action resulted in the entry of a judgment of possession.
After securing the assistance of counsel, plaintiff obtained an order to show cause to set aside the judgment. On the return date, the trial court allowed defendant to provide plaintiff with written notice seeking her eviction on the ground that defendant planned to personally occupy the apartment. Based on this notice, the court entered a new judgment of possession that required plaintiff to vacate by July 31, 2004.
After plaintiff vacated the apartment, defendant failed to return the $818 security deposit either to plaintiff or the Division of Welfare. In August 2004, the Division sent defendant a letter requesting return of the deposit. Defendant responded by letter stating that she had retained the deposit to pay for new carpeting to replace carpeting that had been damaged by plaintiff. According to plaintiff, she was required to reimburse the Division of Welfare for the $818 security deposit retained by defendant.
Plaintiff subsequently filed this damages action in the Special Civil Part. Plaintiff claimed in the first count of her amended complaint that defendant purportedly evicted her so defendant could occupy the second floor apartment herself but then leased the apartment to another tenant, in violation of the Anti-Eviction Act. N.J.S.A. 2A:18-61.1 to -61.12. Plaintiff claimed in the second count that defendant failed to return the $818 security deposit or notify her in writing within thirty days of termination of her tenancy of the disposition of the deposit.
Defendant's answer admitted that she had sought possession of plaintiff's apartment for her personal occupancy and that she did not in fact move into the unit. However, defendant claimed that her failure to occupy the apartment was not arbitrary, because it was "based on a disability." Defendant also asserted that the plaintiff was not entitled to return of the security deposit because plaintiff had caused damage to the apartment that cost more to repair than the amount of the deposit and that defendant gave the required notice of the disposition of the deposit. In addition, defendant filed a counter-claim alleging that plaintiff owed her back rent for another apartment previously leased to plaintiff.
The case was tried in a bench trial. Plaintiff did not present any evidence regarding the circumstances of defendant's failure to personally occupy the premises. At the close of plaintiff's case, defendant moved to dismiss plaintiff's wrongful eviction claim on the ground that plaintiff had not presented any evidence that defendant's failure to occupy the second-floor apartment was arbitrary.
The trial court acknowledged that it would be difficult for plaintiff to prove that defendant's failure to occupy the apartment herself was arbitrary. Nevertheless, the court dismissed plaintiff's ...