On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. SC-316-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2010
Before Judges Miniman and Waugh.
Defendant Oluwadiran Ogunwale appeals the judgment entered against him for double the amount of the security deposit related to an apartment owned by Ogunwale and occupied by plaintiff Brittany Myers. We reverse.
The underlying facts can be stated briefly as follows.*fn1 Ogunwale rented an apartment in New Brunswick for use by Myers at a monthly rental of $600 plus certain utilities. There was a security deposit of one month's rent. When Myers vacated the apartment, the security deposit was not returned. Myers filed an action in the Special Civil Part, seeking return of the deposit. The matter was tried on March 3, 2009.
In interpreting [N.J.S.A. 46:8-21.1], we have held that the statutory penalty imposed for failure to return a tenant's security deposit within the prescribed thirty-day period is double the net amount "wrongfully withheld," not double the amount of the initial deposit. Kang In Yi v. Re/Max Fortune Properties, Inc., 338 N.J. Super. 534, 539 (App. Div. 2001) (citing Jaremback v. Butler Ridge Apartments, 166 N.J. Super. 84, 89 n. 1 (App. Div. 1979)). Hence, when a case involves offsetting amounts, as here, the trial judge must determine the amount of those offsets and, if they are greater than the security deposit withheld, there is no deposit to return to the tenant and no valid basis for enforcing the notification requirement of the statute. Jaremback, supra, 166 N.J. Super. at 87-88.
Consequently, a trial judge must consider each offset claimed by the landlord and may impose the double-deposit penalty only on the net amount due to the tenant.
At trial, Ogunwale explained that he did not return the deposit because Myers owed money for utilities, a broken window and a missing lamp. He further testified that he attempted to contact Myers through her father, who would not give him an address.
Ogunwale then began explaining the offsets he was claiming, beginning with the utility charges. He did not have separate utility meters for the apartment rented by Myers. Instead, he split the costs between his family's use and use by Myers. While the portion of the billed expenses attributable to Myers would be a matter of proof by Ogunwale, the trial judge did not permit him to complete his testimony about the utility bills before he ruled against him on all issues.
THE COURT: Mr. Ogunwale? You have the worst bookkeeping I have ever seen. You are absolutely in the wrong. I am going to give . . . this plaintiff a judgment for $600 for return of her security deposit.
You have not satisfied me that she owes you any money. And because there's a total ...