Whenever money or other form of security shall be deposited or advanced on a contract, lease or license agreement for the use or rental of real property as security for performance of the contract, lease or agreement or to be applied to payments upon such contract, lease or agreement when due, such money or other form of security, until repaid or so applied including the tenant's portion of the interest or earnings accumulated thereon as hereinafter provided, shall continue to be the property of the person making such deposit or advance and shall be held in trust by the person with whom such deposit or advance shall be made for the use in accordance with the terms of the contract, lease or agreement and shall not be mingled with the personal property or become an asset of the person receiving the same.
The person receiving money so deposited or advanced shall:
The Commissioner of Banking may, in his discretion, promulgate rules and regulations with respect to the establishment of the method of computing the interest due to either the person receiving the money as a security deposit or to the tenant pursuant to the provisions of P.L.1967, c.265
c. 265 (C. 46:8-19 et seq.) or P.L.1971, c.223 (C. 46:8-21.1 et seq.) if the money is deposited in an account or in shares of an investment company upon which the interest varies on a periodic basis.
Any person, whether the owner or lessee of the property leased, who or which has or hereafter shall have received from a tenant or licensee a sum of money as a deposit or advance of rental as security for the full performance by such tenant or licensee of the terms of his contract, lease or license agreement, or who or which has or shall have received the same from a former owner or lessee, shall, upon conveying such property or assigning his or its lease to another, or upon the conveyance of such property to another person by a court in an action to foreclose a mortgage thereon, at the time of the delivery of the deed or instrument of assignment, or within five days thereafter, or in the event of the insolvency or bankruptcy of the person receiving said deposit, within five days after the making and entry of an order of the court discharging the receiver or trustee, deal with the security deposit by turning over to his or its grantee or assignee, or to the purchaser at the foreclosure sale the sum so deposited, plus the tenant's portion of the interest or earnings accumulated thereon, and notify the tenant or licensee by registered or certified mail of such turning over and the name and address of such grantee, assignee or purchaser. Notwithstanding any other provision of law to the contrary, it shall be the duty and obligation of the grantee, assignee or purchaser to obtain from the grantor who is the owner or lessee at the time of the transfer, conveyance or purchase any and all security deposits, plus accrued interest on the deposits, that the owner or lessee received from a tenant, licensee or previous owner or lessee, and which deposits were invested, or should have been invested, in the manner required by section 1 of P.L.1967, c.265 (C. 46:8-19).
Any owner or lessee turning over to his or its grantee, assignee, or to a purchaser of the leased premises at a foreclosure sale the amount of such security deposit, plus the tenant's portion of the interest or earnings accumulated thereon, is hereby relieved of and from liability to the tenant or licensee for the repayment thereof. Whether or not the deposit plus accumulated interest are so transferred, the grantee, assignee or purchaser of the leased premises is nevertheless responsible for the proper investment of the security deposit, giving all notices and paying interest pursuant to section 1 of P.L.1967, c.265 (C. 46:8-19) and for the return of the security deposit, plus any accumulated earnings or interest thereon, to the tenant or licensee, in accordance with the terms of the contract, lease, or agreement unless he or it shall thereafter and before the expiration of the term of the tenant's lease or licensee's agreement, transfer such security deposit to another, pursuant to section 2 of P.L.1967, c.365 (C. 46:8-20) and give the requisite notice in connection therewith as provided thereby.
Within 30 days after the termination of the tenant's lease or licensee's agreement, the owner or lessee shall return by personal delivery, registered or certified mail the sum so deposited plus the tenant's portion of the interest or earnings accumulated thereon, less any charges expended in accordance with the terms of a contract, lease, or agreement, to the tenant or licensee, or, in the case of a lease terminated pursuant to P.L.1971, c.318 (C.46:8-9.1), the executor or administrator of the estate of the tenant or licensee or the surviving spouse of the tenant or licensee so terminating the lease. The interest or earnings and any such deductions shall be itemized and the tenant, licensee, executor, administrator or surviving spouse notified thereof by personal delivery, registered or certified mail. Notwithstanding the provisions of this or any other section of law to the contrary, no deductions shall be made from a security deposit of a tenant who remains in possession of the rental premises.
Within five business days after:
Within 15 business days after a lease terminates as described in section 3 of P.L.2008, c.111 (C.46:8-9.6), the owner or lessee shall have available and return to the tenant or the tenant's designated agent upon his demand any money or advance of rent deposited as security plus the tenant's portion of the interest or earnings accumulated thereon, including the portion of any money or advance of rent due to a victim of domestic violence terminating a lease pursuant to
section 3 of P.L.2008, c.111 (C.46:8-9.6), less any charges expended in accordance with the terms of the contract, lease or agreement and less any rent due and owing at the time of the lease termination.
Such net sum shall continue to be available to be returned upon demand during normal business hours for a period of 30 days at a location in the same municipality in which the subject leased property is located and shall be accompanied by an itemized statement of the interest or earnings and any deductions. The owner or lessee may, by mutual agreement with the municipal clerk, have the municipal clerk of the municipality in which the subject leased property is located return said net sum in the same manner. Within three business days after receiving notification of the displacement, the owner or lessee shall provide written notice to a displaced tenant by personal delivery or mail to the tenant's last known address. In the event that a lease terminates as described in section 3 of P.L.2008, c.111 (C.46:8-9.6), within three business days after the termination, the owner or lessee shall provide written notice to the victim of domestic violence by personal delivery or mail to the tenant's last known address. Such notice shall include, but not be limited to, the location at which and the hours and days during which said net sum shall be available to him. The owner or lessee shall provide a duplicate notice in the same manner to the relocation officer. Where a relocation officer has not been designated, the duplicate notice shall be provided to the municipal clerk. When the last known address of the tenant is that from which he was displaced and the mailbox of that address is not accessible during normal business hours, the owner or lessee shall also post such notice at each exterior public entrance of the property from which the tenant was displaced. Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), or any other law to the contrary, the municipal clerk, and any designee, agent or employee of the municipal clerk, shall not knowingly disclose or otherwise make available personal information about any victim of domestic violence that the clerk or any designee, agent or employee has obtained pursuant to the procedures described in section 3 of P.L.1971, c.223 (C.46:8-21.1).
Any such net sum not demanded by and returned to the tenant or the tenant's designated agent within the period of 30 days shall be redeposited or reinvested by the owner or lessee in an appropriate interest bearing or dividend yielding account in the same investment company, State or federally chartered bank, savings bank or savings and loan association from which it was withdrawn. In the event that said displaced tenant resumes occupancy of the premises, said tenant shall redeliver to the owner or lessee one-third of the security deposit immediately, one- third in 30 days and one-third 60 days from the date of reoccupancy. Upon the failure of said tenant to make such payments of the security deposit, the owner or lessee may institute legal action for possession of the premises in the same manner that is authorized for nonpayment of rent.
The Commissioner of Community Affairs, the Public Advocate, the Attorney General, or any State entity which made deposits on behalf of a tenant may impose a civil penalty against an owner or lessee who has willfully and intentionally withheld deposits in violation of section 1 of P.L.1967, c.265 (C.46:8-19), when the deposits were made by or on behalf of a tenant who has received financial assistance through any State or federal program, including welfare or rental assistance. An owner or lessee of a tenant on whose behalf deposits were made by a State entity and who has willfully and intentionally withheld such deposits in violation of this section shall be liable for a civil penalty of not less than $500 or more than $2,000 for each offense. The penalty prescribed in this paragraph shall be collected and enforced by summary proceedings pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The State entity which made such deposits on behalf of a tenant shall be entitled to any penalty amounts recovered pursuant to such proceedings.
In any action by a tenant, licensee, executor, administrator or surviving spouse, or other person acting on behalf of a tenant, licensee, executor, administrator or surviving spouse, for the return of moneys due under this section, the court upon finding for the tenant, licensee, executor, administrator or surviving spouse shall award recovery of double the amount of said moneys, together with full costs of any action and, in the court's discretion, reasonable attorney's fees.
Counselor's Note: Notwithstanding the legislative intent of requiring that the landlord also serve a notice to the tenant detailing the reasons for any funds to be withheld, the case law indicates that the tenant is entitled to double the wrongfully withheld portion regardless of whether the notice is served. It would then logically follow that if a tenant cannot prove that any funds were wrongfully withheld, the amount to be returned would be $0, regardless of whether the landlord failed to serve the required notice. The Statute sets forth that “within 30 days after the termination of the tenant's lease or licensee's agreement, the owner or lessee shall return by personal delivery, registered or certified mail the sum so deposited plus the tenant's portion of the interest or earnings accumulated thereon, less any charges expended in accordance with the terms of a contract, lease, or agreement, to the tenant…” The statute [Id.] further sets forth “[i]n any action by a tenant ... for the return of moneys due under this section, the court upon finding for the tenant ... shall award recovery of double the amount of said moneys, together with full costs of any action and, in the court's discretion, reasonable attorney's fees. In the matter of Kang In Ye, ReMax Fortune Properties, Et. Als., 770 A.2d 738 (New Jersey App. Div. 2001), the Court examined how the doubling of damages, required under the Rent Security Deposit Act is to be calculated. In particular, the Court needed to determine whether the statutory penalty imposed for failure to return a tenant's deposit within the prescribed thirty-day period is double the amount of the total deposit (plus interest) less the landlord's valid charges, or double the net amount of money wrongfully withheld from the tenant by the landlord. In so ruling, the Court stated “[w]e are persuaded that the latter approach is required. The plain language of N.J.S.A. 46:8-21.1, especially the reference to "said moneys", bespeaks a Legislative design that the doubling be of the net amount, i.e., the deposit plus interest less any permissible charges. Once a court finds that a landlord wrongfully withheld all or a portion of a security deposit, the tenant cannot reasonably be entitled to statutory damages exceeding twice the amount wrongfully withheld. See also MD Assocs. v. Alvarado) 302 N.J.Super. 583, 586, 695 A.2d 760 (App. Div.1997); Jaremback v. Butler Ridge Apartments, 398 A. 2d 1339 - NJ Appellate Div. 1979 166 N.J.Super. 84, 89 n. 1, 398 A.2d 1339 (App.Div.1979) ("Where the penalty is appropriate under the statute, the only item which should be doubled is the net amount due to the tenant on the security deposit and interest, after deductions of the charges due to the landlord."); London, supra, 176 N.J.Super. at 291, 422 A.2d 1049; see also Mahlon L. Fast, A Guide to Landlord/Tenant Actions in the Special Civil Part of the Superior Court of New Jersey § XII.B.1.a at 166 (5th ed.2000).
In the matter of LORRIL CO. v. LA CORTE Leagle 352 N.J. Super. 433 (2002), the Court further clarified that “[i]t is only the portion of the security deposit that is unlawfully held that can be doubled under N.J.S.A. 46:8-21.1… Because the tenants remaining rent obligation exceeded the security deposit, nothing was unlawfully withheld and nothing remained of the deposit to be doubled.
An owner or lessee may not require more than a sum equal to 1 1/2 times 1 month's rental according to the terms of contract, lease, or agreement as a security for the use or rental of real property used for dwelling purposes. Whenever an owner or lessee collects from a tenant an additional amount of security deposit, the amount collected annually as additional security shall not be greater than 10 percent of the current security deposit.
Since this section of the Act limits the total deposit to 1 ½ times the monthly rent, the practice for landlords charging a security deposit of 1 ½ times the monthly rent, and additionally charging a pet deposit violates this Section.
Security deposits made prior to the effective date of this act shall comply with the provisions of this act within 90 days of the effective date thereof.
Notwithstanding any law or rule to the contrary, the Division of Small Claims of the Superior Court, Law Division, Special Civil Part shall have jurisdiction of actions between an owner or lessee and tenant for the return of all or a part of a security deposit in which the amount in dispute, including any applicable penalties, does not exceed the sum of $ 5,000, exclusive of costs.
A tenant who has received financial assistance through any State or federal program, including welfare or rental assistance, shall not be required to file an action in court to recover deposits withheld by a landlord in violation of P.L.1967, c.265 (C.46:8-19 et seq.) in order to continue participation in any such program.
Any trust arising under the provisions of this act shall be enforceable by a civil action in a court of competent jurisdiction and that court shall have jurisdiction to make any appropriate order or judgment both pendente lite and final to fully effectuate the purposes of this act.
Statutory trust upon insolvency or bankruptcy of person receiving security deposit In the event of the insolvency or bankruptcy of the person receiving the said moneys, the claim of the person who paid the said moneys shall constitute a statutory trust with respect to any moneys so received and not previously expended in accordance with the terms of the contract, lease or agreement.
Any provision of such a contract, lease or agreement whereby a person who so deposits or advances money waives any provision of this act is absolutely void.
Any person party to said contract, lease or agreement, or any agent of said person, or any officer of a corporation receiving said moneys, who, with knowledge that such moneys constitute trust funds, unlawfully diverts or consents to an unlawful diversion of such moneys shall be a disorderly person and subject to a fine of not less than $ 200.00 or by imprisonment for not more than 30 days, or both.
The provisions of this act shall apply to all rental premises or units used for dwelling purposes except owner-occupied premises with not more than two rental units where the tenant has failed to provide 30 days written notice to the landlord invoking the provisions of this act.
Counselor's Note: This exception, which applies to owner-occupied residences, still allows tenants of those residences to elect to be protected by the Act by providing written notice to the landlord. See also Section 46:8-19 with regard to seasonal tenancies.