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Marusiak v. McCall

A-1529-09T3 (N.J. Super. App. Div. 2010) (Unpublished)

LANDLORD-TENANT; EVICTION; CONSTRUCTIVE EVICTION — Material latent defects in an apartment that go uncured by the landlord breach the implied warranty against such defects and constitute constructive eviction giving a tenant the right to cancel its lease.

A tenant entered into a one year apartment lease. Four months later, the tenant noticed widespread mold in her daughter’s room. This caused her to discard toys, books, and shoes. She notified her landlord about the mold. He provided a dehumidifier for the apartment and agreed to install air conditioning, but it only would be operable when he was at home. The tenant obtained a laboratory report on the mold condition which indicated that several harmful molds were present. Subsequently, she notified her landlord she would be leaving because of concerns for her daughter’s health, and soon vacated the apartment. She demanded return of her security deposit and then sued her landlord for double the amount under law when he refused to return the deposit.

At trial, the tenant testified the mold made her sick and destroyed her property. She also testified that the landlord initially sent her a check representing her security deposit, without interest; however, he stopped payment on the check when she filed her lawsuit. The landlord asserted his own claim for damages to the apartment caused by the tenant. However, he could not state the specific amount of damages claimed. The tenant claimed that she cleaned the apartment thoroughly before vacating it. The lower court concluded that the tenant was constructively evicted because the landlord failed to correct a known defect to the apartment. Thus, she was entitled to move out and the court concluded that the tenant was not bound by the lease’s thirty day notice provision. The lower court credited the landlord for the cost of cleaning the refrigerator and calculated interest due on the security deposit. It then awarded the tenant twice the balance.

On the landlord’s appeal, the Appellate Division affirmed, holding that the landlord was on notice of a defect in the apartment, and his remediation effort failed to correct the problem. The Court ruled that latent housing defects remediable by a landlord require imposition of an implied warranty against such defects. It also found that if an apartment is not suitable for the purpose for which it has been leased, it constitutes grounds for a tenant to cancel the lease. Under the circumstances, the Court was satisfied that the lower court correctly held that the tenant had been constructively evicted from her apartment and was not liable for any further obligations under the lease.


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