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Unlawful Detainer Damages: A Tenant’s Right to Damages after an Illegal Lockout

A prior post explained that when a tenant is illegally locked out of her apartment, she may pursue an unlawful detainer action under New Jersey’s Unlawful Detainer statute, N.J.S.A. 2A:39-1 et. seq. An unlawful detainer case proceeds in two stages. At the first stage, the court will determine whether the tenant had a right to possession of an apartment and whether that possession was wrongfully denied. Secondly, the court will determine what damages the tenant suffered. At the damage stage, tenants should know what damages can be recovered under the Unlawful Detainer statute.

A tenant’s remedy, including court costs and attorney’s fees, under the Unlawful Detainer statute is broken into two parts. The text of the statute provides:

§ 2A:39-8. Recovery of damages and possession of property; treble damages in lieu of possession

In any action under this chapter, a plaintiff recovering judgment shall be entitled to possession of the real property and shall recover all damages proximately caused by the unlawful entry and detainer including court costs and reasonable attorney’s fees. When a return to possession would be an inappropriate remedy, treble damages shall be awarded in lieu thereof.

Here, a tenant’s remedy proceeds down one of two tracks. Under track one, a tenant is restored to her possession of the apartment and awarded damages caused by the landlord’s illegal lockout. Typically damages include the cost of any hotel stays, rent paid to other landlords for an apartment, security deposits paid to other landlords, and the cost of replacing any necessities left in the apartment after the lockout. In short, the tenant goes back to the apartment and receives a judgment for the amount of money lost after the illegal lockout.

When restoration to possession is an inappropriate remedy, the statute provides that “treble damages shall be awarded…” Whether a restoration to possession is appropriate is determined by the court. Courts are generally hesitant to restore tenants to possession when there are allegations of violence or threats of violence, when the apartment was “re-rented,” or when putting the tenant back in the apartment is asking for trouble.

The statute seems clear that when possession in inappropriate, the tenant is entitled to treble (triple) damages. Interpreting the statute this way, when the court will not put the tenant back in the apartment, the tenant’s damages must be tripled. Despite this, some courts refuse to triple because tripling is “too extreme.” In a perfect world, this judgment would be appealed.

The statute also provides that successful tenants are awarded reasonable attorney’s fees. This provision allows tenants to vindicate their right to possession without incurring the additional cost of an attorney. For attorneys, this is always a cause for celebration.

Since the facts of each circumstance vary, a landlord or tenant should consult an attorney with his/her specific circumstances. Offit Kurman practices landlord tenant law throughout New York and New Jersey assisting tenants in avoiding unnecessary and costly delays. The firm’s geographic practice area includes: New York City (Manhattan, New York County, Brooklyn, Kings County, Queens, Queens County, Bronx County, Staten Island, Richmond County) and New Jersey (Jersey City, Hoboken, Bayonne, Hudson County, Newark, Essex County, Woodbridge, Middlesex County, Paterson, Passaic County). The Firm invites you to visit the “Promises” page for our new way of doing business. Contact us today for a guaranteed free initial consultation.