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Birch v. Hanley

324 N.J. Super. 286, 735 A.2d 64 (Law Div. 1999)

LANDLORD-TENANT; WASTE; DAMAGES—Under appropriate circumstances, a landlord is still entitled to treble damages from a tenant upon a finding that waste has been committed.

This case concerned the continued viability of N.J.S. 2A:65-3 in awarding landlords treble damages for waste committed by tenants. The statute provides: “A civil action may be maintained in the superior court against the tenant, and upon a finding that waste has been committed, treble damages shall be assessed or granted, and the defendant shall lose the thing or place wasted.” Though the genesis of this statute is the English Statute of Marlbridge, enacted in 1267, there has been very little recent case law on the subject. In 1950, the United States District Court for the District of Delaware ruled that New Jersey courts did not apply this statute to common law actions. This particular action by the landlord against his former tenant was a common law claim for rent and “intentional damages.” The tenant was in default for failure to appear and at a proof hearing the landlord requested treble damages pursuant to the statute. The Court recognized that if it were to follow the Delaware case, treble damages would not be permitted. However, the Court looked to the case that the Delaware court used as a basis for its decision. That 1946 Court of Chancery decision held that so long as the action filed was for a “Writ of Waste,” as opposed to a common law suit, the statute was applicable and enforceable. This explained why the Delaware Federal Court limited its holding to “common law” actions. In 1954, a Law Division case held that treble damages were still provided for in suits by landlords for waste by tenants. At that time, the statute specifically provided for a “Writ of Waste,” but a revision to this statute specifically made reference to “a civil action ... in the superior court,” apparently eliminating the procedural requirement of the Writ of Waste in order to obtain treble damages. A review of this type of statute in other states revealed a variety of approaches, but the Court found that in 1948 the New Jersey Legislature, when adopting the new version of the law, expressly made it applicable to “civil actions” in “superior court” to keep the statute viable under the new Constitution and to remove the restriction that it not be applicable to common law actions. Therefore, this statute was held not to be exclusive in its applicability to damage by tenants, but landlords who avail themselves of their right to charge damages against a tenant’s security deposit are deemed to have elected a different remedy and are not also entitled to have the benefit of treble damages. Here, the landlord applied the security to rent, but the balance being sued for arose from intentional damage. Therefore, the landlord was allowed treble damages.


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