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Edwin Evans and Mashawn*Fn1 Venable v. Melvin Mcdaniel

January 21, 2011

EDWIN EVANS AND MASHAWN*FN1 VENABLE, PLAINTIFFS-RESPONDENTS,
v.
MELVIN MCDANIEL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. SC-3567-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 1, 2010

Before Judges R. B. Coleman and Lihotz.

Defendant-landlord Melvin McDaniel appeals from a Special Civil Part judgment, entered following a bench trial, awarding plaintiffs Edwin Evans and Mashawn Venable return of their security deposit. We affirm.

The parties entered into a written lease agreement for the period August 1, 2009 to July 31, 2010. Plaintiffs agreed to pay the monthly rental of $1,050. Plaintiffs remitted a security deposit of $1,575 and paid the first month's rent.

Plaintiffs stated they were given the keys to the premises, but never moved in due to various problems needing remediation. Initially, plaintiffs complained that the toilet was inoperable, there was a hole in the kitchen wall and the prior occupant had left trash in the premises. Plaintiffs requested, and defendant agreed, to repair these items and stated he would address any other concerns plaintiffs raised.

Plaintiffs arranged for cable and telephone services, moving a television and telephone into the leasehold for hookup. Additionally, they purchased a refrigerator, which was connected in the kitchen, and replaced the stove. Thereafter, plaintiffs determined the electricity and plumbing functioned poorly and the kitchen drawers were filled with "mouse feces and dead roaches." Defendant attributed the infestation to the first-floor tenant.

At trial, plaintiffs played an August 26, 2009 voicemail message left on their answering machine from defendant that stated he did not want them as tenants. Defendant agreed to retain August's rental payment, end the lease, "waive the thirty-day notice" and return their security deposit.

Plaintiffs assert they had never moved into the apartment and claimed they did not agree defendant could retain the rent paid. Plaintiffs filed this action seeking return of all monies remitted for the security deposit and rent.

Defendant testified that one week before the lease was signed, both plaintiffs had viewed the apartment. Plaintiffs told defendant they had one month remaining on their current lease and tried to adjust the start date to September 1, 2009. Defendant explained they could wait if they wanted, but he had other prospective tenants who may lease immediately. The parties executed the lease on July 31, 2009 to commence the tenancy the next day.

One week later, plaintiffs began lodging complaints. Defendant asserted he addressed each issue. For example, he maintained the plumbing worked fine, but he merely needed to install a new flush handle on the toilet; the trash remnants resulted from a new carpet installation and he admitted there were a few mouse droppings in the kitchen drawer and agreed to engage an exterminator. The following week, plaintiffs complained the electrical outlet in the bedroom was inoperable and later, the electricity for the building was completely disrupted when plaintiffs plugged in an air conditioner. Defendant hired an electrician to correct the problem and told plaintiffs everything was fixed. Nevertheless, plaintiffs continued to call defendant with complaints regarding the premises.

Defendant offered photographs of plaintiffs' personal property in the premises to establish they had moved-in. The pictures did not reflect food, furniture and furnishings were placed in the apartment, they showed only the items described by plaintiffs installed in anticipation of a move.

Defendant admitted that, in frustration, he left the August 26, 2009 voicemail message telling plaintiffs he thought "maybe they would be problem tenants" and maybe they should leave and he would return their security deposit. After calming down, he consulted an attorney, who advised the lease was binding and he called plaintiffs to explain he would continue to honor the lease. He suggested if plaintiffs wanted to leave, he would allow them to break the lease but he would ...


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