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Asher v. ALMA-GPNJ, LLC

A-0148-09T1 (N.J. Super. App. Div. 2010) (Unpublished)

LEASES; SUBLEASES; LIABILITY —Even though a subtenant does not have a contractual agreement with the landlord-property owner, the landlord has a duty to use reasonable care with respect to the subtenant’s personal items.

A subtenant sublet an apartment from a tenant who was about to vacate the unit and from a new tenant who was to begin occupancy of the apartment under a new lease. The subtenant entered into an arrangement with both of these tenants allowing him to occupy the unit for three months. The tenants were prohibited from subletting the unit without the consent of the management company.

While preparing for the transition between tenants, the management company’s employees entered the apartment and removed the subtenant’s personal property, mistakenly believing that it had been abandoned by the departing tenant. This occurred despite the subtenant having interacted with a doorman, a security guard, and the building superintendent after he had moved in. Further, the subtenant claimed that the outgoing tenant had met with building management and instructed that nothing in the apartment was to be disturbed during its inspection, and that the building manager told him the unit was not on a cleaning list.

The subtenant sued the management company, alleging burglary, theft, vandalism, and destruction of property. The company filed an answer with affirmative defenses and a demand for a jury trial. The case was tried before a judge. At trial, the resident provided an itemized list of his claimed losses and expenses. Supporting documents included evidence of the replacement cost of the items claimed. The lower court gave the subtenant an award, finding that although no contractual relationship existed, the management company owed a duty to the subtenant and negligently breached it. The court inferred this duty because the company’s agents and employees were aware the subtenant was already occupying the unit and therefore acted unreasonably in removing the resident’s personal items from the apartment. The management company appealed.

The Appellate Division affirmed, upholding the lower court’s finding of negligence. First, it found that the subtenant’s failure to plead a negligence claim in his complaint was not prejudicial to the management company, as the management company pled an affirmative defense of comparative negligence in its answer and thus was on notice that the subtenant’s complaint concerned alleged unreasonable conduct on the company’s part. On the merits, the Court stated that even in the absence of a contractual relationship, a property owner continues to owe a duty, even limited, to trespassers, especially when their presence is foreseeable. The Court indicated that a court must examine when the imposition of a duty on a landowner would be fair and just, given the relationship between the parties under all of the surrounding circumstances. In this matter, the interactions between the resident and various management company employees were sufficient to make the management company aware of the subtenant’s occupancy and gave it a duty to use reasonable care with respect to the subtenant’s personal items.

Lastly, the Court upheld the lower court’s award, finding that replacement cost documentation of lost or destroyed items was sufficiently competent proof of damages. The Court stated that when market value is difficult or impossible to ascertain, the mechanical rules of damage calculation must be abandoned in order to allow for making an injured party whole.


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