Appellate court: Tenant justified in moving out of apartment where mold destroyed the furniture, books and child's toys

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Appellate court: Tenant justified in moving out of apartment where

mold destroyed the furniture, books and child's toys

http://www.nj.com/hunterdon-county-democrat/index.ssf/2010/09/appellate_court_te\

nant_justifi.html

INGOES — A mother and her little girl who were run out of their

apartment by toxic mold is entitled to double her security deposit, the

appellate division of the New Jersey Superior Court has ruled.

ccording to the court’s written opinion released on Sept. 7,

Marusiak and her 2-year-old daughter started renting an apartment here from

McCall in April, 2009. In early August 2009, Marusiak was rearranging her

daughter’s room and “started finding mold everywhere. It was black, green,

gray.

It was creeping up her bookcase, it was on the bottom of all the furniture, it

was on her toys.â€

Marusiak later found mold inside her couch and ended up discarding many of

her daughter’s toys, books and shoes. McCall provided her with dehumidifiers

which Marusiak said filled up at the rate of about two gallons of water per

night. He also had an air conditioner put it but did not leave it on when he was

not home.

The mold was tested and Marusiak did some research on the Internet and

discovered that the most of the molds identified were classified as toxic and

dangerous. She told her landlord she would be leaving “as she was concerned

about her young daughter's health, adding that she herself, had ‘been feeling

quite sick for some time’â€

She moved out on Aug. 18, 2009. When McCall refused to return her

$1,800 security deposit plus interest, Marusiak filed a complaint in Superior

Court n Flemington seeking double the amount of her security deposit since she

was forced out of the apartment by the mold.

McCall filed a counterclaim seeking $2,942.16, because Marusiak

allegedly violated the terms of the lease by keeping a cat in her apartment

which damaged carpets that had to be cleaned and McCall claimed had to make

various repairs to the apartment for conditions allegedly caused by her

negligence.

After a bench trial, Superior Court Judge Buchsbaum awarded

judgment in favor of Marusiak, in the amount of $3,391 plus costs. After

rendering his decision, Buchsbaum said, “there doesn't seem to be any dispute

that there was a mold condition here, that it was serious and it needed to be

addressed.â€

As for the counterclaim, he said that if McCall had found other

damages, he should have notified Marusiak properly instead of waiting to mention

them in the counterclaim.

McCall appealed.

The appellate judges agreed with Buchsbaum’s ruling and wrote, “The

undisputed evidence established that four months into the lease term, plaintiff

discovered serious mold conditions throughout the apartment that had not only

damaged her personal belongings, including her young daughter's toys and books,

but had caused plaintiff herself to feel sick. The laboratory report obtained by

defendant confirmed not only the existence of mold but the potential risks.

Defendant's remediation efforts, namely two dehumidifiers and an air

conditioning system that was inoperative when he was away from the premises, did

nothing to address the problem.â€

Although no expert witnesses testified regarding the toxicity of the

mold, it was clear the fungus destroyed Marusiak’s property and caused her to

feel sick, the judge ruled.

Buchsbaum ruled that Marusiak was “constructively evicted†because the

landlord failed correct the situation and the mold condition resulted in “a

breach of the covenant of quiet enjoyment†of the apartment as implied in the

lease.

In affirming Buchsbaum’s ruling, the appeals judges wrote, “Under the

circumstances presented here, we are satisfied that the trial judge was correct

in finding that plaintiff had been constructively evicted from her apartment,

and therefore was not liable for the rent claimed by defendant†and was

entitled

to getting double her security deposit.