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Donna M. Vitiello, Crest Management, L.L.C., and Dovan Management v. Jose Marques and 70 Burroughs


May 15, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-16067-10.

Per curiam.


Argued November 15, 2011

Before Judges Reisner and Hayden.

In this commercial lease case, plaintiffs Donna Vitiello, Crest Management, L.L.C., and Dovan Management Group, L.L.C., appeal from a January 28, 2011 Law Division Order, which awarded defendants Jose Marques and 70 Burroughs, L.L.C., unpaid back rent and attorneys fees and denied plaintiffs' claim for return of the security deposit. We affirm.

We glean the following from the record. In November 2006, Vitiello, as the principal of Crest Management, L.L.C, later known as Dovan Management Group L.L.C., and Marques, as the principal of 70 Burroughs L.L.C., executed a commercial lease agreement. In the lease, Crest rented office space in a building owned by 70 Burroughs L.L.C. for a term of three years from January 1, 2007 through December 31, 2009. Vitiello, an experienced property manager, planned to use the office space for Crest's residential property management business.

Under the terms of the lease, which was drafted by Marques, the tenant agreed to be responsible for repairing the floors, windows, doors, ceilings, and fixtures, while the landlord was responsible for repairing the roof, outside walls, structural parts of the building, and parking lot. The lease agreement further provided that, if the tenant vacated the premises during the term of the lease, it would be liable for the remaining rent payments. The lease also stipulated that if Crest defaulted on the lease, it was liable to pay "all costs, damages and expenses (including reasonable attorney fees and expenses) suffered by Landlord by reason of Tenant's defaults."

Vitiello and Marques do not agree on the events which preceded this action. According to Vitiello, in late 2007, the building's boiler began to experience problems that interfered with the functioning of electricity and computers and caused the work area to remain exceptionally cold. She also contended that cracks around the windows allowed cold air to seep through the leased premises during the winter and bugs and dust to enter during the summer.

Vitiello stated that she withheld rent for the month of December 2007 because of her dissatisfaction with the office conditions and because of the extra expense from using electric heaters to bring the office to a tolerable temperature. Vitiello alleged that in 2008, after three months of freezing cold, the landlord repaired the heating system. However, she claimed the intolerable cold persisted because, although Marques had promised to replace all the windows, he did not. She also reported a mouse problem, but, she conceded, the problem was a "one shot deal" fixed the same day she complained about it. In addition, she stated that a leak had caused a problem in the women's bathroom.

In contrast, Marques contested Vitiello's accusations and denied that he did not attempt to remedy problems on the leased premises. First, he produced a receipt showing that he replaced thirty feet of baseboard radiators in plaintiffs' office on December 3, 2007, which he claimed solved the heating problem. Marques also submitted that in mid-December 2007, he fixed the electrical circuit breaker in response to Vitiello's complaints, resolving the electricity problem. Marques denied telling Vitiello that he would replace the windows. *fn1

In June 2009, Vitiello sent a letter to defendants complaining about the continued uninhabitable conditions of the office space due to the excessive cold in the winter, the dirt and bugs during the summer, and the recent plumbing issue with the women's toilet. When she received no indication that the landlord would fix the problems, she vacated the premises at the end of August 2009, claiming a constructive eviction.

After the landlord failed to return the security deposit, plaintiffs filed a complaint in Small Claims Court on October 22, 2009. Defendant refused to terminate the lease and counterclaimed for damages based on non-payment of rent, late fees, and attorneys fees. Because the counterclaims exceeded the jurisdictional amount for Small Claims Court, the matter was transferred to the Special Civil Part on February 1, 2010.

Following a two-day trial, Judge Cronin issued an oral decision on November 5, 2010. He found that Vitiello was not candid, gave inconsistent testimony, and was evasive in answering certain questions, which cast doubt on her credibility.

The judge concluded that a constructive eviction had not occurred because the lease clearly specified that the tenant was responsible for repairs inside the building, including windows. The judge pointed out that the lease contained an integration clause that rendered it the entire agreement between the parties. Thus, the judge found that as the lease exempted the landlord from repairs to the windows, Marques's alleged verbal representations that he would fix the windows were not relevant.

Further, Judge Cronin also found that plaintiffs had not proven the two elements required for constructive eviction, namely substantial interference with the use of the premises and vacation of the property within a reasonable time. He observed that the photos of the windows plaintiffs placed in evidence revealed that the frames were dirty and old but did not show them to be cracked or otherwise defective. Consequently, the judge found incredible the assertion that the windows had caused the conditions about which Vitiello complained. He further found that lack of access to the bathroom was of such limited duration it could not contribute to the alleged inhabitability and that the mouse problem was solved within a single day.

Additionally, the judge found that plaintiffs did not vacate the premises within a reasonable time after the conditions arose that supposedly rendered the office space uninhabitable, since they left during the summer months when the cold was not a problem. Thus, the judge concluded that as plaintiffs had not proven the elements required to show constructive eviction, they were still liable for the rent until the end of the lease.

The judge ordered plaintiffs to pay rent and late fees for the months remaining on the lease subsequent to their departure. After crediting plaintiffs with the $1,150 security deposit, the net amount plaintiffs owed was $4,924. As under the lease plaintiffs were obliged to pay attorneys fees in the event of a dispute between the parties, the judge allowed defendants to submit an application for attorneys fees, which brought the entire judgment to $8,862.75. This appeal followed.

We first note that the scope of our review of a trial court's fact-finding is limited. Where findings of fact are made by a trial judge, we will not disturb those findings when they are supported by adequate and credible evidence. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Because a trial court hears the case, sees and observes the witnesses, and hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Cesare v. Cesare, 154 N.J. 394, 412 (1998).

On appeal, plaintiffs argue that the trial judge erred in determining that the lease obligated plaintiffs to repair the windows and that no constructive eviction occurred. Further, plaintiffs contend that the evidence demonstrated that the premises were uninhabitable and their departure was timely under the circumstances. Having considered these arguments in light of the record and the applicable law, we are convinced they are without merit. We affirm substantially for the reasons stated by Judge Cronin in his November 5, 2010 oral decision. R. 2:11-3(e)(1)(A). We add the following brief discussion.

The trial judge relied primarily on Reste Realty Corp. v. Cooper, 53 N.J. 444, 458-59 (1969), where the Supreme Court held that a tenant is constructively evicted when it is deprived of the use and enjoyment of a leased premises due to acts or omissions chargeable to the landlord and thus has a right to vacate the premises. In that case, faulty construction of the building's foundation led to substantial flooding of the tenant's office whenever it rained. Id. at 449-50. After the landlord failed to respond to the tenant's complaints for nine months, the tenant vacated the premises a week after the most recent flooding incident. Id. at 450. The court concluded that a constructive eviction had occurred when the premises became uninhabitable due to the severe flooding, which substantially interfered with the tenant's use of the property. Id. at 462.

To prevail on a claim of constructive eviction the tenant must show two elements. First, the breach of the covenant of habitability must substantially interfere with the tenant's use and enjoyment of the premises, such that departure from the property is justified. Id. at 458-59; Berzito v. Gambino, 63 N.J. 460, 469 (1973); Gottdiener v. Mailhot, 179 N.J. Super. 286, 292 (App. Div. 1981). Not every defect or inconvenience makes the premises uninhabitable. The test is an objective one, so that the interference must "truly . . . render the premises uninhabitable in the eyes of a reasonable person." Berzito, supra, 63 N.J. at 469; Gottdiener, supra, 179 N.J. Super. at 292. We have recognized that failure to supply adequate heat and air conditioning may constitute constructive eviction. Demirci v. Burns, 124 N.J. Super. 274, 275 (App. Div. 1973); Westrich v. McBride, 204 N.J. Super. 550, 553 (App. Div. 1984).

The second element the tenant must show to succeed on a constructive eviction claim is that she vacated the premises within a reasonable time after the conditions that rendered the property inhabitable arose. Reste Realty, supra, 53 N.J. at 461. This fact-specific inquiry depends on the unique circumstances of the case rather than a strict time period. Ibid.; J.S. Properties v. Schwartz, 389 N.J. Super. 542, 550 (App. Div. 2006) (waiting six months to depart after landlord commenced alleged malicious suit was not reasonable under the circumstances).

Based on Judge Cronin's factual findings, which are supported by credible evidence in the record, we are satisfied that he correctly concluded that plaintiffs were not constructively evicted from the leased premises. The facts show that the heating problem in the office was fixed in December 2007, and plaintiffs did not prove that the windows had defects that caused intolerable cold in the winter and dirt and bugs in the summer. Thus, plaintiffs failed to establish the factual predicate for constructive eviction, that the premises were uninhabitable in the eyes of a reasonable person. Additionally, plaintiffs, having waiting until the summer despite their chief complaint being the alleged insufferable cold, failed to vacate the premises within a reasonable time.


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