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    Post: NJ App.Ct~Tenant Justified~MOLD~Sec Dept X 2

    Posted by Sharon on 9/08/10

    Appellate court: Tenant justified in moving out of
    apartment where mold destroyed the furniture, books and
    child's toys
    Published: Wednesday, September 08, 2010, 2:00 PM
    Lillian Shupe/Hunterdon County Democrat

    Hunterdon County Courthouse

    RINGOES — 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.

    Marusiak later found mold inside her couch and ended up
    discarding many of her daughter’s toys, books and shoes.

    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’”

    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.

    After a bench trial, Superior Court Judge Peter 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.”

    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.”

    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

    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.

    NJ App Ct~Tenant Justified In Moving~MOLD

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