JESSICA MARUSIAK v. PETER McCALL (2010)

Defendant Peter McCall appeals from the October 19, 2009 order of the Special Civil Part, entering judgment in favor of plaintiff, Jessica Marusiak, in the amount of $3391 plus costs.   We affirm.

The factual background pertinent to this decision may be summarized as follows.   On April 21, 2009, plaintiff entered into a one-year lease of an apartment owned by defendant, in Ringoes, New Jersey.¹  Plaintiff lived in this apartment with her then two-year-old daughter.

In early August 2009, plaintiff “was rearranging [her] daughter['s] room and ․ started finding mold everywhere.   It was black, green, gray.   It was creeping up her bookcase, it was on the bottom of all the furniture, it was on her toys.  [She] later found it inside of [her] couch.   It was just everywhere.”   As a result, plaintiff discarded “a lot” of her daughter's toys and books and her shoes.

On August 8, 2009, plaintiff notified defendant about her “concerns with the mold.”   Defendant came to the apartment, observed the mold and then provided plaintiff with a dehumidifier for the apartment.   Plaintiff testified that the dehumidifier “was filling up ․ two gallons a night.”   Defendant “agreed to install air conditioning ․ [b]ut when he wasn't at home, the air conditioning wasn't on.”

Defendant obtained a laboratory report on the mold condition in plaintiff's apartment.   That report, dated August 14, 2009, concluded that “[u]nusal [m]old [c]ondition(s)” existed in the apartment, and that the “mold identified in th[e] report is often associated with excess moisture and can be a problem in indoor environments at high levels.”   Plaintiff thereafter researched some of the molds identified in the report on the Internet, and determined that several of those molds were particularly harmful.

Plaintiff explained that she did research “on the Internet” about the mold because she “really liked [her] apartment, and if it was something that seemed harmless[,]” she was willing to stay.   However, her research revealed “several pages that classified most of the molds found ․ as toxic, dangerous.   One of them said it was the second most dangerous to black mold.”

Plaintiff thereupon notified defendant that she would “probably be leaving ․ right away[,]” as she was concerned about her young daughter's health, adding that she had “been feeling quite sick for some time [herself].”   She stated that “the place smelled really bad, so ․ everything just started to make sense that it was about the mold.”

Plaintiff notified defendant that she vacated the apartment on August 18, 2009.   She demanded return of her security deposit in the amount of $1800;  however, defendant refused to remit that amount.   Therefore, on September 16, 2009, plaintiff filed a complaint in the Special Civil Part seeking $3600 representing double the amount of her security deposit pursuant to N.J.S.A. 46:8-21.1.²

On October 9, 2009, defendant filed a counterclaim seeking damages in the amount of $2942.16, based on claims that plaintiff violated the terms of the lease by keeping a cat in her apartment which damaged carpets that had to be cleaned, and that defendant had to make various repairs to the apartment for conditions caused by plaintiff's negligence.

At trial, plaintiff pointed out that section 8.2 of the lease provided:  “If in any event ․ damage suffered to the [p]remises result[s] in that the [p]remises is not suitable for the purpose for which it has been leased, it shall constitute a ground for the [t]enant or the [l]andlord to cancel this [l]ease.”   She testified that defendant had sent her a check in the amount of $1800, representing her security deposit but without interest.   Defendant, however, subsequently stopped payment on that check after plaintiff filed her complaint.

Defendant testified that he was “not disputing” what plaintiff said, and that he “was notified there was mold[,]” but concluded that it was just “moisture in the air.   So the fix for it was dehumidifiers,” which he furnished to plaintiff.

When plaintiff informed defendant that she was moving out, he advised her that he “would need 30 days notice because this is after the fact that the mold situation came up.”   Plaintiff moved out of the apartment on the following weekend, while defendant was away.

Defendant sent plaintiff an email stating that “the refrigerator ․ wasn't clean, [and] there was ․ some [s]heetrock pulled off the wall.”   He acknowledged that he did not state the specific amount of damages he claimed for those conditions;  however he “[l]ater ․ added that, once [he] found that [he] was being taken to court for double the security.”

Defendant testified to further damage he noticed to a shed on the property, but acknowledged that he could not say the plaintiff caused that damage, just that he discovered it after she moved out “so [he] added that in [his] counterclaim.”   Plaintiff claimed that she “cleaned that place from top to bottom[,] ․ and ha[d] no knowledge” of the claimed damage to the shed on the property.

At the conclusion of the testimony, the trial judge rendered his decision from the bench, stating:

This is a case that basically involves whether there is a ground[ ] for a claim of constructive eviction․  [W]hen a tenant sees defects in a property, the tenant has an entitlement to either declare a constructive eviction and move out and/or ․ repair and deduct, or withhold rent․

This particular tenant opted to exercise the first of those options.   And ․ there doesn't seem to be any dispute that there was a mold condition here, that it was serious and it needed to be addressed.

The judge declined to find that plaintiff had broken the lease by failing to give defendant thirty days' notice, adding:  “It seems ․ there was permission to leave by then․  [T]here was an acknowledgment that [plaintiff] w[as] justified in leaving.   The only change was [that plaintiff] filed suit, which [defendant] didn't like.”

The judge further found that defendant's claimed damages “should have been the subject of a proper notice if they were significant, not first appearing on the counterclaim.”   Therefore, the judge did not “attach to them much credibility.”   The judge did credit defendant $150 “for cleaning the refrigerator, which may have occurred.”   The judge then calculated the amount of interest due and entered judgment on behalf of plaintiff as noted.

On appeal, defendant contends that plaintiff vacated her apartment with no notice, in violation of the lease, and that he should have been allowed to make repairs within thirty days before plaintiff vacated the premises.

Having reviewed these contentions in light of the record, we are convinced they are without merit.   We affirm substantially for the reasons stated by Judge Peter A. Buchsbaum in his decision rendered from the bench.   R. 2:11-3(e)(1)(A).

The undisputed evidence established that four months into the lease term, plaintiff discovered serious mold conditions throughout the apartment that had not only damaged her personal belongings, including her young daughter's toys and books, but had caused plaintiff herself to feel sick.   The laboratory report obtained by defendant confirmed not only the existence of mold but the potential risks.   Defendant's remediation efforts, namely two dehumidifiers and an air conditioning system that was inoperative when he was away from the premises, did nothing to address the problem.

The gravamen of defendant's argument is that plaintiff is “not an ‘expert’ in the mold area.   Therefore, she cannot state this mold was ‘toxic’, this is actually a false statement.”   At trial, however, defendant acknowledged that he was “not disputing” plaintiff's testimony, as noted.   While no expert testimony was presented by either side on the nature of the mold in plaintiff's apartment, nonetheless plaintiff's unrefuted testimony was that the mold destroyed property that she then had to discard, and caused her to feel physically sick.

“[P]resent day demands of fair treatment for tenants with respect to latent defects remediable by the landlord, either within the demised premises or outside the demised premises, require imposition on him of an implied warranty against such defects.   Such warranty might be described as a limited warranty of habitability.”  Reste Realty Corp. v. Cooper, 53 N.J. 444, 454 (1969) (citation omitted).   Moreover, “[t]he great weight of authority throughout the country is to the effect that ordinarily a covenant of quiet enjoyment is implied in a lease.”  Id. at 456.

We are satisfied that such an implied covenant is found in section 8.2 of the parties' lease which, as noted above, provided that if “damage suffered” to the leased premises is such that the “[p]remises is not suitable for the purpose for which it has been leased, it shall constitute a ground for the [t]enant or the [l]andlord to cancel this [l]ease.”

Where, as here,

there is such a covenant, whether express or implied, and it is breached substantially by the landlord, the courts have applied the doctrine of constructive eviction as a remedy for the tenant.   Under this rule any act or omission of the landlord ․ which renders the premises substantially unsuitable for the purpose for which they are leased, or which seriously interferes with the beneficial enjoyment of the premises, is a breach of the covenant of quiet enjoyment and constitutes a constructive eviction of the tenant.

[Id. at 456-57].

Under the circumstances presented here, we are satisfied that the trial judge was correct in finding that plaintiff had been constructively evicted from her apartment, and therefore was not liable for the rent claimed by defendant, and was entitled to the relief afforded by N.J.S.A. 46:8-21.1.

Affirmed.³

FOOTNOTES

FN1. This lease was a renewal of a one-year lease for the apartment from April 2008 to April 2009..  FN1. This lease was a renewal of a one-year lease for the apartment from April 2008 to April 2009.

FN2. N.J.S.A. 46:8-21.1 provides, in pertinent part that “[i]n any action by a tenant ․ for the return of [a security deposit], the court upon finding for the tenant ․ shall award recovery of double the amount of said moneys, together with full costs of any action․”.  FN2. N.J.S.A. 46:8-21.1 provides, in pertinent part that “[i]n any action by a tenant ․ for the return of [a security deposit], the court upon finding for the tenant ․ shall award recovery of double the amount of said moneys, together with full costs of any action․”

FN3. We note that defendant presents no argument with respect to the trial judge's resolution of his counterclaim, except to ask, in his conclusion, that we “consider the countersuit․”  “It is ․ clear that an issue not briefed is deemed waived.”   Pressler, Current N.J. Court Rules, comment for R. 2:6-2 (2010).   See Sciarrotta v. Global Spectrum, 392 N.J.Super. 403, 405 (App.Div.2007), rev'd on other grounds, 194 N.J. 345 (2008)..  FN3. We note that defendant presents no argument with respect to the trial judge's resolution of his counterclaim, except to ask, in his conclusion, that we “consider the countersuit․”  “It is ․ clear that an issue not briefed is deemed waived.”   Pressler, Current N.J. Court Rules, comment for R. 2:6-2 (2010).   See Sciarrotta v. Global Spectrum, 392 N.J.Super. 403, 405 (App.Div.2007), rev'd on other grounds, 194 N.J. 345 (2008).

PER CURIAM