MARVIN WARE et al. v. CAROL SWEENEY et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7045-03T57045-03T5

MARVIN WARE and JAYMI WILLIAMS,

Plaintiffs-Appellants,

v.

CAROL SWEENEY and JOHN MOSCONI,

Defendants-Respondents.

_____________________________________________

 

Argued November 16, 2005 - Decided

Before Judges Conley and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, DC-146-04.

George N. Polis argued the cause for appellants.

Dara L. Paley argued the cause for respondents.

PER CURIAM

This appeal arises from a residential lease agreement which was terminated by the defendant landlord before the commencement date of the lease. Plaintiffs, the would-be tenants, appeal a final judgment awarding them $925 but denying their claims arising from alleged violations of the Security Deposit Act, N.J.S.A. 46:8-19 to -28, and of N.J.S.A. 2A:42-100 (repealed by L. 2002, c. 82, 7 and replaced by amendments to N.J.S.A. 10:5-4 and N.J.S.A. 10:5-12). We affirm.

Much of the bench trial in this matter involved plaintiffs' claims that defendants had breached their agreement to lease the property at issue and their request for damages in the form of storage charges they incurred as a result of furniture they allegedly purchased in reliance upon the lease agreement. The trial judge resolved that claim adversely to plaintiffs based upon his credibility determinations. Plaintiffs do not pursue this on appeal. The issues raised on appeal focus solely upon the security deposit allegations and a claim that defendants discriminated against plaintiffs because of the source of the money for the rent as previously proscribed by N.J.S.A. 2A:42-100, now N.J.S.A. 10:5-4, -12.

Here are the relevant facts found by the judge:

Ms. Sweeney is the owner of the property, 811 Arkansas Avenue. She has been all during this time. Mr. Moscony's her husband. He's been involved in - in general terms, I'll say the management of properties that she owns.

Mr. Ware and [Ms.] Williams are individuals who were prospective tenants. Sometime in May, apparently right around May 27, 2003, there were discussions that took place as a result of the plaintiffs going to the property and a formal lease was entered into. It's D-1 in evidence, signed by Ms. Sweeney on June 7 and by Mr. Ware and Ms. Williams on May 27 of 2003.

That document anticipated they would occupy the property in August of 2003; although it also appears to impose on them a variety - on them, being the plaintiffs - a variety of obligations and it also appears to contemplate what everyone has acknowledged in the testimony. And that is, at the time these initial[] discussions took place, the property was undergoing very substantial renovations. It's not hard to conclude that the parties, given all the circumstances, probably contemplated that if everything else took place as anticipated, it might still be that the property wouldn't be available until sometime after August 15.

All those things happened.

On May 27 or thereabouts, around the time the lease was signed, a check was paid to Ms. Sweeney in the amount of $925 - that's P-3 in evidence - which represented what is described in the lease, D-1, as the first month's rent of $875 and a processing fee of $50.

I find all of those to have occurred.

I also find that Mr. Ware and Ms. Williams did not make the additional payment required under the lease, which the was $875 described as a last month rent that was due on June 30 under the terms of the written lease.

It's also clear that they did not provide verification that Section 8 benefits would be available; something that was contemplated at least by the written lease, if not by the discussions that took place between the parties.

It's also clear, as I think I've already indicated, that on July 23rd, there was a letter issued by Ms. Sweeney, P-2 in evidence, confirming at least the defendant's view that there had been default . . . .

To these facts, we add the relevant language of the lease:

TERM: One Year period effective August 15th 2003. The lease will become month to month after August 15th, 2004. The tenant must provide a 30 DAY written NOTICE to owner if they decide not to renew lease.

Monthly rent is $875.00 which is due on the fifteenth of each month. Section 8 voucher program will be responsible for payment of rent and tenant will provide verification of this subsidy to owner before 6/30/03.

Monies required to be paid by Buyer prior to occupancy are as follows:

First Months rent 875.00 due at signing of lease

Processing fee 50.00 due at signing of lease

Last Months rent 875.00 due on or before 6/30/03.

Security deposit 875.00 due on or before occupancy

PAYABLE AS FOLLOWS:

SAID RENT TO BE PAID TO: Carol Sweeney (owner)

1. TENANT, IN ADDITION TO PAYING THE AFORESAID RENT, The Tenant SHALL PLACE IN ESCROW WITH owner the sum of $875.00 TO BE PAID at signing of this lease. AS A SECURITY DEPOSIT, WHICH WILL BE HELD IN A non bearing INTEREST-BEARING ACCOUNT AND WILL BE REFUNDED WITHIN thirty DAYS (30) AFTER THE TERMINATION OF THIS LEASE, PROVIDED AN INSPECTION REVEALS NO DAMAGE OTHER THAN NORMAL WEAR AND TEAR.

Plainly, then, as found by the trial judge, the $925 paid by plaintiffs was the first month rent and the $50 processing fee. Plaintiffs never paid the required security deposit. Although the trial judge concluded as a matter of law that the first month's rental payment constituted a security deposit within the meaning of N.J.S.A. 46:8-19, we of course are not bound by that conclusion. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). To be sure, N.J.S.A. 46:8-19 includes "money . . . deposited or advanced on a . . . lease . . . for the use or rental of real property as security for performance of the . . . lease . . . or to be applied to payments upon such . . . lease. . . . " But it is only "until repaid or so applied," that the moneys are to be held in trust for the person who made the deposit or advance. N.J.S.A. 46:8-19. Here, the $925 was applied to the first month rent and to the $50 processing fee. That it was not the requested security deposit is evident from the separate provision in the lease agreement for such a deposit. Cf. Campi v. Seven Haven Realty Co., 294 N.J. Super. 37, 45 (Law Div. 1996).

As to the claim of discrimination based upon the source of the rental monies, i.e., Section 8 rental assistance pursuant to 42 U.S.C.A. 1437f, the judge found:

There is another claim that I want to comment on; although it's not clear to me just where it falls within the pleading. If anywhere, I suppose it's within Count I. And that's the claim that there was discrimination - unlawful discrimination against the defendants based on certain provisions of the law that prohibit discrimination based on the source of rental monies.

I'm satisfied that claim has not been established. It's an interesting argument. The reason that - the initial reason why I'm satisfied that claim hasn't be[en] established is that on the proofs presented in this case, I am not convinced that the reference to Section 8 benefits is something that was initiated by the defendants. If it had been, then possibly this would be a legitimate argument. But factually, I'm satisfied that the reference to Section 8 is something that initiated with the plaintiffs and that one cannot under any circumstance, treat the actions or decisions that were made by the defendants as involving discrimination based on that.

True, there were apparently actions taken in reliance on the provisions of the lease agreement that required proof of Section 8 housing, but I don't find that the original involvement of Section 8 is something that arose because of the defendants' conduct. So I'm satisfied that claims has not been established, has been defeated factually.

If I thought there was - that this was an issue that was initiated by the defendants - that is, that they had taken the position they would only rent to Section 8 tenants, then I'd probably have a much more fascinating inquiry to make because I think if that was the case, this would probably be turning whatever statute may govern this type of proceeding on its head. As I understand it, generally, this statute would be intended to protect people who might be beneficiaries of Section 8 housing, not to try to ensure that that type of program would be the one that would be most commonly honored. In any event, I don't think the claim is established.

To this we add only that there was no discrimination here against the Section 8 voucher program as a source of the rental monies. Compare T.K. v. Landmark West, 353 N.J. Super. 223 (App. Div. 2002). If anything, plaintiffs were encouraging such payment and simply wanted verification thereof.

 
Affirmed.

Before its repeal in 2002, N.J.S.A. 2A:42-100 provided, in pertinent part:

No person, firm or corporation or any agent, officer or employee thereof shall refuse to rent or lease any house or apartment to another person because of the source of any lawful income received by the person or the source of any lawful rent payment to be paid for the house or apartment. . . . Nothing contained in this section shall limit the ability of a person, firm or corporation or any agent, officer or employee thereof to refuse to rent or lease any house or apartment because of the credit worthiness of the person or persons seeking to rent a house or apartment.

N.J.S.A. 10:5-4 now provides in pertinent part:

All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of . . . real property without discrimination because of . . . source of lawful income used for rental . . . payments . . . ."

N.J.S.A. 10:5-12 contains additional proscriptions upon discrimination because of the source of lawful income used for rent payments.

(continued)

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A-7045-03T5

December 2, 2005