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Hebner v. Rodriguez

April 26, 2010

HAROLD HEBNER, PLAINTIFF-APPELLANT,
v.
FERNANDO RODRIGUEZ, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-3320-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 9, 2010

Before Judges Lihotz and Ashrafi.

Plaintiff Harold Hebner appeals from a Special Civil Part order dismissing his complaint against his landlord, defendant Fernando Rodriguez. Plaintiff's action sought return of his security deposit and statutory penalties for violating the provisions of the Security Deposit Act (Act), N.J.S.A. 46:8-19 to -26. Following a bench trial, the court determined defendant was entitled to retain the entirety of plaintiff's security deposit, despite his failure to comply with the notice requirements of the Act, because plaintiff owed him monies for past rent, damages and other debts that exceeded any possible recovery to plaintiff by enforcement of the Act. We affirm.

Defendant is the owner of a two-family house in Lyndhurst. In January 2004, plaintiff entered into an oral, month-to-month tenancy to rent the ground floor of defendant's property. Plaintiff gave defendant a check for $2,150. Half of this amount constituted a security deposit and the balance covered the first month's rent.

Shortly after moving into the ground-floor apartment, plaintiff qualified for housing assistance through the federal Section 8 program. See 42 U.S.C.A. § 1437f. This federal housing program subsidizes the private housing market rents of low-income tenants. Davis ex rel Davis v. Phila. Hous. Auth., 121 F.3d 92, 93-94 (3d Cir. 1997). Initially, plaintiff was contributing $414 per month towards the rent; later that monthly obligation was reduced to $278. Despite the subsidy, plaintiff had difficulty paying his rent and fell into arrears. In an effort to keep plaintiff in the apartment, defendant agreed to accept $225 per month as plaintiff's rental share. Unfortunately, plaintiff's financial difficulties continued.

Plaintiff testified he approached defendant and offered to perform maintenance work around the premises to reduce or offset his outstanding rental obligation. Plaintiff asserted he and defendant reached an oral agreement confirming this arrangement. Although defendant acknowledged he once granted plaintiff a rent abatement in exchange for his labor, plaintiff strenuously denied any agreement to an on-going accommodation in lieu of paying rent.

In June 2006, defendant filed an eviction proceeding. A consent judgment required plaintiff to vacate the premises by August 21, 2006. When plaintiff did not comply, a warrant for removal was issued and eviction was effectuated on September 6, 2006. On September 13, 2006, the Sherriff's office locked plaintiff from the premises and changed the locks.

Plaintiff asserted he called defendant several times requesting return of his security deposit but defendant neither released plaintiff's money nor advised why monies were withheld. In October 2008, he filed this complaint seeking $3,000, presumably for the return of his security deposit along with interest and statutory damages for defendant's failure to provide a written notice accompanied by an itemization of claims made against the security deposit. See N.J.S.A. 46:8-21.1 (providing for double recovery for a landlord's failure to return a tenant's deposit).

During the hearing, plaintiff testified he voluntarily left the apartment in "broom swept" condition, but for normal wear and tear. Also, plaintiff believed the sum of $1,500, representing unpaid rent as of March 2006, was offset by labor he performed on the property, including spackling and painting seven rooms, felling two trees, repairing a water pipe, replacing shingles, and removing an old furnace from the building's basement. Plaintiff did not pay rent from April 2006 until the date of eviction.

Defendant also testified. He agreed plaintiff's unpaid rent balance as of March 8, 2006 was $1,500 and noted plaintiff had not paid rent for the months of April to September, 2006. Additionally, the sum of $144.45 was spent to change the apartment locks, pursuant to court order following the eviction, and $500 had been loaned to plaintiff in December 2004, but not repaid, to secure his release from the Bergen County Jail. The total of these items was $3,044.45.

Defendant also sought the cost he expended to repair the premises following plaintiff's eviction. Defendant inspected the apartment and discovered [i]t was . . . like a bomb hit it. There was [sic] just papers everywhere. It was a disgrace. Animals in the back. Feces in the back. He did [ ] come back and remove the animals later, because I had gone to the Lyndhurst [Animal ...


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