CHARLES W. C. JOHNSTON v. MARK CAMIOLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6165-04T16165-04T1

CHARLES W. C. JOHNSTON,

Plaintiff-Appellant,

v.

MARK CAMIOLO,

Defendant-Respondent.

_________________________________________________

 

Submitted January 24, 2006 - Decided March 21, 2006

Before Judges Axelrad and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Gloucester

County, SC-918-05.

Charles W. C. Johnston, appellant, pro se.

Mark Camiolo, respondent, did not file a brief.

PER CURIAM

Plaintiff Charles W. C. Johnston appeals from an order of a judge of the Special Civil Part assessing damages against him in the total amount of $1,039 as the result of his failure to comply with provisions of the security deposit statute, set forth in N.J.S.A. 46:8-19 and N.J.S.A. 46:8-21.1. On appeal, plaintiff claims that the trial judge misconstrued the statute and misapplied case law that holds that the statutory penalty for failure to return a tenant's deposit within the prescribed thirty-day period is double the net amount "wrongfully withheld." Penbara v. Straczynski, 347 N.J. Super. 155, 160 (App. Div. 2002). We reverse.

Charles Johnston rented property to Marc Camiolo pursuant to a written lease effective April 1, 2004 to April 1, 2005 at a monthly rental of $1,050. The lease required a security deposit of $1,575, which the lease stated was deposited in a savings account in Equity Bank. Pursuant to the terms of the lease, Camiolo was to leave the oil tank full when he vacated the premises.

In March, 2005, Camiolo failed to pay rent. He held over on his lease during a portion of the month of April 2005, but again did not pay rent. On April 8, 2005, Johnston emptied the premises of Camiolo's belongings, declaring them to have been abandoned. When Camiolo complained to the police that Johnston had stolen his possessions, Johnston stated that he retained the property and would return it upon payment of the March rent. On the following day, Camiolo came to retrieve his property and orally authorized Johnston to utilize the security deposit as the March rental payment. Johnston refused, claiming that there was damage to the premises and that the oil tank had not been filled. Camiolo thereupon issued a check for the rent, but then placed a stop-payment on it. An $11 bank surcharge resulted. The oil tank remained unfilled.

In his complaint, Johnston claimed as damages the $1,050 March rental payment plus the $11 stop-payment charge, for a total of $1,061. At trial, he additionally claimed entitlement to April's rent and to the cost of filling the oil tank. However, he did not offer any evidence of the amount of that cost. Johnston did not pursue a claim of damage to the property. Camiolo, in turn, testified that he had been locked out of the premises in the middle of April, and he asserted that Johnston had violated the security deposit statute by failing to give the number of the account in which the deposit was being held and the address of the bank. He also claimed entitlement to interest on the deposit. See N.J.S.A. 46:8-19. Further, Camiolo asserted that Johnston had violated N.J.S.A. 46:8-21.1 by not returning or accounting for Camiolo's security deposit within thirty days after he vacated the premises.

The trial judge found that Johnston was entitled to damages in the amount of $2,111, consisting of two months' rent and the $11 bank surcharge. However, the judge found that Johnston had violated N.J.S.A. 46:8-19 by failing to provide proper notice of the location of the security deposit and had violated N.J.S.A. 46:8-21.1 by failing to return or account for the deposit within thirty days after termination of the lease, and that as a result of his violations, he was liable for double the amount of the deposit, or $3,150. The judge then set off Johnston's recovery for unpaid rent against the amount that Johnston allegedly owed Camiolo and entered judgment against Johnston in the amount of $1,039. Johnston has appealed; Camiolo has not filed a cross-appeal or participated in the proceeding before us.

On appeal, Johnston argues that it was improper under Penbara to assess damages against him in an amount equal to double the security deposit, because in accordance with that decision, Camiolo was only entitled to a doubling of the net amount owed to him. We agree. In Penbara we held that noncompliance with the notice provisions of N.J.S.A. 46:8-19 does not mandate forfeiture of a security deposit, 347 N.J. Super. at 161, and that although failure to return or otherwise account for the deposit within thirty days after the termination of the lease requires a forfeiture, "the statutory penalty imposed for failure to return a tenant's security deposit within the prescribed thirty-day period is double the net amount 'wrongfully withheld,' not double the amount of the initial deposit." Id. at 160.

In the present case, Camiolo was not entitled to credit the security deposit against his rental obligation, because he did not give the written notice of his intent to do so that N.J.S.A. 46:8-19b requires. Thus, he remained liable for the March and April 2005 rent, as well as the bank surcharge. Nonetheless, Johnston retained Camiolo's security deposit and provided no evidence of its application to repair damages to the premises or to the cost of fuel oil. Thus the amount of the security deposit must be set off against damages owed by Camiolo. As a consequence, Johnston is entitled to a judgment in his favor in the amount of $536.

 
The order of judgment is reversed and the matter is remanded to the trial court for the entry of an amended judgment in Johnston's favor in the amount of $536.

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A-6165-04T1

March 21, 2006