July 26, 2012
ASHLEY E. POLAND, PLAINTIFF-RESPONDENT,
JONATHON SANDVILLE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-26028-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 10, 2012
Before Judges Payne and Hayden.
Defendant Jonathon Sandville appeals from the September 17, 2010 order, which granted plaintiff Ashley Poland's complaint for return of her security deposit and denied defendant's counterclaim for back rent, and from the October 1, 2010 order, which granted plaintiff's requested attorney's fees. Having considered the matter in light of the record and the applicable law, we affirm the order for return of the security deposit and the denial of back rent but remand for a hearing on the order for attorney's fees.
The record reveals that in March 2009, plaintiff signed a one-year lease to rent an apartment from defendant in Jersey City. On August 4, 2009, plaintiff vacated the apartment and later filed this action in the Special Civil Part for a return of her security deposit. Defendant counterclaimed for back rent for the period in which the apartment remained vacant.
At trial, plaintiff testified as follows. Her apartment was located on the ground floor but the back entrance was about four feet below the level of the backyard. In late July 2009, a torrential rain storm occurred that resulted in runoff from the backyard gushing under plaintiff's back door through the entire apartment, leaving several inches of water on the floor. The flood water contained dirt, grass and mud, and the carpet soon became saturated with filthy water. Plaintiff immediately contacted defendant, asking for assistance and telling him she could not remain in the apartment. When defendant came to the apartment the next day, plaintiff showed him the water mark along the molding on the floor as well as the dirt and mud all over the carpet. By the time defendant arrived, the apartment had a very foul odor.
According to plaintiff, that day defendant sent a person to clean up the floor with a spray bottle and paper towels; he did not use bleach or bring fans to dry the apartment. Plaintiff expressed her strong dissatisfaction with what she considered an inadequate clean up and asked defendant to get a professional company to assess the damage and clean the apartment. Defendant refused, because in his opinion the flooding was not severe. Soon, mold started to grow on the baseboard and along the wall of the apartment. The apartment smelled wet and musty, "like a swamp."
Due to the condition of the apartment, plaintiff had not stayed there since the flooding occurred. On August 4, 2011, she met with defendant and told him that she was moving out because she could not live there with the dirt, the smell and the mold. At the trial, plaintiff introduced several photos of the apartment, showing the water on the floor, the watermark on the molding, and mold growing on the wall.
In contrast, defendant testified that the flooding had been minor, and there was no need for professional cleaning. He also denied the presence of any bad odor or mold. Because plaintiff did not give the proper written notice to terminate the tenancy as required by the lease, defendant sought to collect the back rent due until he rented the apartment a few months later. He also testified that plaintiff had damaged the apartment and had not paid for utilities.
In her written opinion on September 17, 2010, the trial judge noted that she had assessed the credibility of the parties and found plaintiff to be extremely credible. She found that the flooding and defendant's refusal to clean the water damage and mold in the apartment rendered the premises uninhabitable, which resulted in plaintiff being constructively evicted from the time of the flood in July. Thus, she determined plaintiff did not owe any back rent on the unexpired lease. Further, the judge found that defendant had failed to return plaintiff's security deposit of $1,425. After deducting $500 for an unpaid utility bill, the judge doubled the remaining $925, resulting in $1,850 due to plaintiff.
The judge also determined plaintiff was entitled to reasonable attorney's fees and ordered plaintiff's counsel to submit an affidavit of services to the court and opposing counsel. She instructed defendant's counsel to submit any opposition to the court and opposing counsel. Meanwhile, that day the court issued an order for defendant to pay plaintiff $1850 for the security deposit and $72 in attorney's fees.
Apparently, shortly thereafter,*fn1 plaintiff's counsel submitted an affidavit for services totaling $9,849 and defendant's counsel submitted no opposition. On October 1, 2010, the trial judge issued an additional order, requiring defendant to pay the full amount of the attorney's fees requested by plaintiff's attorney. This appeal followed.
On appeal, defendant contends that he did not constructively evict plaintiff as she did not give him time to correct the problem and that the judge calculated the security deposit refund incorrectly because when plaintiff vacated the premises on August 4, she owed August rent. We disagree with both contentions.
We first note that the scope of our review of a trial judge's fact-finding is limited. Where findings of fact are made by a trial judge, we will not disturb those findings provided 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) (internal citations and quotation marks omitted).
In her decision, 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 she 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. 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). Second, the tenant must show 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).
Based upon the trial judge's factual finding that the apartment was uninhabitable, which is supported by credible evidence in the record, we are satisfied that she correctly concluded that plaintiff was constructively evicted from her apartment. We are not persuaded by defendant's argument that plaintiff's sudden move immediately after the flood did not give him an opportunity to clean up the damage. According to plaintiff's credible testimony, defendant did not view the damage as requiring further cleaning and refused to take any additional measures. As the trial judge credited plaintiff's testimony that the apartment was dirty, moldy and "smelled like a swamp," we agree that defendant's refusal to rectify the situation rendered the apartment uninhabitable from the time of the flood and his subsequent refusal in July. As plaintiff was entitled to vacate the apartment when it became uninhabitable, no rent was due from the time of the constructive eviction. Berzito v. Gambino, supra, 63 N.J. at 468 (implied warranty of habitability and covenant to pay rent are mutually dependent).
Next, we consider defendant's argument that the trial judge erred in finding that plaintiff was owed any money from her security deposit. The Security Deposit Act (SDA), N.J.S.A. 46:8-19 to -26 "establishes the landlord's obligations in unmistakable and definite terms, and clearly provides a mandatory remedy for default." In Yi v. Re/Max Fortune Props. Inc., 338 N.J. Super. 534, 538 (App. Div.), certif. denied, 169 N.J. 610 (2001). Specifically, the SDA provides that the landlord is obligated to return the security deposit plus interest less any reasonable damages and costs to the tenant within thirty days of the termination of the lease. N.J.S.A. 46:8-21.1. Failure to timely return the deposit entitles the tenant to twice the amount wrongfully withheld. Ibid.
Here defendant does not dispute that he failed to return the security deposit. However, he argues, as he did in the trial court, that plaintiff was not entitled to a refund because she owed August rent since she only gave notice that she was vacating the apartment on August 4, 2010. We reject defendant's contention since the trial judge found that the uninhabitable conditions and ensuing constructive eviction had occurred with the flooding, defendant's refusal to clean, and plaintiff's inability to safely stay in the apartment, which all occurred in July.
Last, defendant contends that the trial judge abused her discretion by awarding excessive counsel fees in light of the amount of damages in the case. He also argues that the award did not take into consideration that defendant prevailed on part of his counterclaim.*fn2 The SDA provides that in the event of litigation for the return of the security deposit, a court may award reasonable attorney's fees to the prevailing tenant. N.J.S.A. 46:8-21.1. Thus, the award is discretionary and the fees must be reasonable.
As the record does not contain the judge's reasoning for the amount of the award, we are unable to determine the basis for the attorney's fee award here. Additionally, we note that defendant's counsel failed to submit an opposition to the amount requested due to confusion created by the initial $72 counsel fee award in the September 17, 2010 order. Therefore, we remand the matter to the trial court to allow defendant to file an opposition to the affidavit of service and for the trial judge to consider the arguments of both parties and provide a statement of reasons for any attorney's fees she decides to award.
Affirmed in part and reversed in part and remanded to the trial court for proceedings consistent with this opinion. We do not retain jurisdiction.