On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-020218-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Simonelli and Espinosa.
Plaintiff landlord, Mort's Family Group, L.L.C., appeals from a judgment entered in favor of defendant tenants, arguing that the trial court erred in finding the tenants were not responsible for the cost of restoring twenty-year old HVAC units at the end of their lease.
Plaintiff is the landlord and owner of a shopping center in Lincoln Park. Defendant Mr. Sushi, Inc. (d/b/a Mr. Sushi) leased certain floor space in the shopping center to operate a Japanese restaurant. Defendants Yan Huang and Bi Jin Li were personal guarantors for Mr. Sushi, Inc. The lease agreement was dated November 30, 1998, and had a term of ten years.
Section 5.6A of the lease agreement provides that the tenant "covenants and agrees, at its own cost and expense, at all times during the Term [of the lease] to . . . [k]eep, replace and maintain in good order, condition and repair the Premises and each and every part thereof . . . including, without limitation, any air conditioning units and systems; heating units and systems . . . ."
Section 7.3 of the lease agreement is entitled "Surrender of Premises" and provides that upon termination, Tenant shall quit and surrender the Premises broom-clean, in good condition and repair (reasonable wear and tear and damage by Acts of God, fire or standard extended covered period excepted), together with all alterations, additions and improvements which may have been made in, on or to the Premises, except movable furniture or unattached movable trade fixtures put in at the sole expense of Tenant provided however, that Tenant shall ascertain from Landlord at least thirty (30) days before the end of the Term whether Landlord desires to have the Premises or any part thereof restored to the condition in which it was originally delivered to Tenant, and if Landlord shall so desire, then Tenant, at its own cost and expense, shall restore the same before the end of the Term.
Defendants vacated the leased premises in February 2009, after the term of the lease expired. There were conversations between the parties regarding certain repairs plaintiff required and efforts by defendants to complete such repairs. In July 2009, William Smith, an employee of plaintiff, sent defendants a letter identifying three items that plaintiff asserted defendants had failed to correct:
1. Defendants modified the sprinkler heads and had failed to restore them to their original condition at ten feet apart.
2. Defendants made multiple holes in the roof to provide ventilation for cooking equipment and had improperly closed the roof openings.
3. The three four-ton HVAC units were not operable, and defendants were required to restore the units to a safe and operable condition.
Smith testified that the minimum amount required to restore the sprinkler heads was $1,250. Hayden Building Maintenance, a roofing contractor, provided both parties with an estimate of $867 to correct the roofing condition. Smith testified that Quantum Air Conditioning had provided an estimate in February 2009 that the three units would ...