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Evans v. McDaniel

A-1432-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

LEASES — A residential tenant placing of its refrigerator, stove, window blinds, television, and similar items in an apartment may not conclusively show that the tenant has taken possession of the apartment because it may only evince the tenant’s anticipatory possession of its waiting for certain conditions to be satisfied.

A residential tenant was entitled to return of his security deposit at a point where both landlord and tenant were dissatisfied with the leasehold arrangement and the tenant had not yet taken possession. The landlord offered to end the lease term and return the security deposit, which offer the tenant accepted.

The tenant had received the keys, but never moved in due to various problems needing remediation. The landlord agreed to fix the deficiencies. In a later voicemail recording, the landlord stated that he did not want to retain the tenant. The landlord agreed to keep one month’s rental payment, end the lease, waive the thirty-day notice, and return the security deposit. The tenant said he never moved into the apartment and never agreed that the landlord could retain the rent. He sued for return of the security deposit and the rent.

The landlord testified that one week before the lease was signed, the tenant had viewed the apartment. After signing, the tenant began lodging complaints, which the landlord claimed he addressed. The landlord presented photographs of the tenant’s personal property in the apartment, such as a refrigerator and telephone. The landlord admitted to leaving the voicemail. Afterwards, he consulted an attorney, who advised him that the lease was binding and he called the tenant to explain he would continue to honor the lease. He claimed he suggested that if the tenant wanted to leave, he would allow him to break the lease but he, the landlord, would retain the security deposit. The landlord asserted that the tenant failed to return the keys and he, the landlord, had not re-let the premises.

The lower court found that the tenant had not taken possession of the premises at the time the landlord suggested he should find alternative accommodations and that he would return the security deposit. The lower court found that although the refrigerator, stove, window blinds, and television were in the apartment, this only evinced an anticipatory possession if certain conditions were satisfied. Thus, the lower court awarded the security deposit plus fees to the tenant.

On appeal, the landlord challenged the lower court’s order, arguing he should not have been required to return the security deposit because the tenant had merely changed his mind after signing the lease. The Appellate Division found that acceptance of the keys, installation of appliances, obtaining utility services, and placing some possessions in the apartment did not definitely show that the tenant had taken possession of the apartment The Court agreed with the lower court’s finding that when the tenant complained, the landlord offered to end the lease term and return the security deposit, and that the tenant accepted. The tenant was entitled to rely upon that agreement.


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