SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2299-18T3

FERNANDO ESCOBAR,

Plaintiff-Respondent,

v.

MARKO MILETIC,

Defendant-Appellant.

________________________

Submitted December 2, 2019 – Decided 

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. SC-001607-18.

Jure Miletic, attorney for appellant.

Ingrid Echeverria, LLC, attorneys for respondent 

(Ingrid E. Echeverria, of counsel and on the brief; Rita 

G. Pincaro, on the brief).

PER CURIAM

Defendant landlord Marko Miletic appeals from the trial court's judgment 

awarding his former tenant, plaintiff Fernando Escobar, the statutory penalty of 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

March 5, 2020
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twice the security deposit the court found he wrongfully withheld. Miletic 

claimed he was entitled to withhold unpaid rent from the security deposit 

because Escobar failed to give proper notice that he was terminating his tenancy. 

Having reviewed Miletic's arguments in light of the record and applicable 

principles of law, we reverse.

The facts are undisputed. On April 30, 2016, the parties entered into a 

two-year residential lease starting on June 1. As the lease provided, Escobar 

proffered a $2325 security deposit, equal to one-and-a-half months' rent. The 

lease required Escobar to give Miletic one month's written notice before 

vacating the premises. When the lease expired, Escobar remained as a monthto-month tenant. On August 3, 2018, Escobar notified Miletic orally that he 

would vacate on September 1, 2018, and he later did so. 

Miletic claimed that Escobar did not give him the required thirty days' 

written notice and despite his diligent efforts, he could not relet the premises 

until October. Miletic sent Escobar a check for $786.06 dated September 12, 

2018, explaining in a letter that the check covered the security deposit plus 

accrued interest, minus $1550 for September's rent. Escobar then sued, seeking, 

pursuant to N.J.S.A. 46:8-21.1, double the amount he alleged Miletic withheld 

wrongfully. 
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The trial court concluded that Miletic was not entitled to deduct unpaid 

rent from the security deposit, notwithstanding that Escobar failed to provide 

proper notice. The court doubled $1550, per N.J.S.A. 46:8-21.1, and entered 

judgment for $3100 in Escobar's favor. The trial judge also held that Miletic 

wrongfully deducted rent from the security deposit because Escobar remained 

in possession of the premises. 

Although the trial court's fact-findings after a bench trial deserve our 

respect, see Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011), the 

principal issue on appeal is a legal one, which we review de novo, Manalapan 

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Escobar was a periodic month-to-month tenant. "A month-to-month 

tenancy is a continuing relationship that remains unabated at its original terms 

until terminated by one of the parties." Harry's Village, Inc. v. Egg Harbor Twp., 

89 N.J. 576, 583 (1982). The party seeking to terminate such a tenancy must 

serve "upon the other a month's notice to quit." Ibid. Here, Escobar gave oral 

notice on August 3, 2018 and vacated on September 1, 2018. As he did not give 

thirty days' notice, he was responsible for September's rent. See id. at 585-86 

(stating that a notice to quit a month-to-month tenancy not given a full month 

before the anniversary date is effective "on the next ensuing anniversary date"); 
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S.D.G. v. Inventory Control Co., 178 N.J. Super. 411, 414 (App. Div. 1981) 

(holding, in case of commercial month-to-month tenancy, that tenant who gave 

notice on November 16 that he would vacate on November 30 was responsible 

for December rent).

The trial court erred in holding that Miletic could not deduct that unpaid 

rent. N.J.S.A. 46:8-21.1 requires the landlord to return the tenant's security 

deposit "[w]ithin 30 days after the termination of the . . . lease . . . less any 

charges expended in accordance with the terms of [the] . . . lease." N.J.S.A. 

46:8-21.1. If the landlord violates this section, the tenant may bring suit and 

"the court upon finding for the tenant . . . shall award recovery of double the 

amount of said moneys." Ibid. However, we have interpreted N.J.S.A. 46:8-

21.1 to allow the landlord to deduct from the security deposit any unpaid rent. 

See Penbara v. Straczynski, 347 N.J. Super. 155, 161 (App. Div. 2002). By 

deducting $1550 of unpaid rent from Escobar's security deposit, Miletic did not 

wrongfully withhold the security deposit. It follows that Miletic is not liable for 

double damages. 

The trial court also erred in holding that Miletic wrongfully deducted from 

the security deposit because Escobar was still in possession of the premises. See

N.J.S.A. 46:8-21.1 (stating "no deduction shall be made from a security deposit 
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of a tenant who remains in possession of the rental premises"). The record does 

not support the court's finding. Miletic returned Escobar's security deposit,

minus the deduction for unpaid rent, eleven days after Escobar moved out and 

returned his keys. At that point, Escobar was no longer "in possession." See

Lorril Co. v. La Corte, 352 N.J. Super. 433, 438-39 (App. Div. 2002) (stating 

that tenants who vacated an apartment in the middle of a month were no longer 

"in possession" under the holdover statute, although they were "technically 

entitled to occupancy for the entire month" because they were charged for the 

whole month).

We need not address Miletic's remaining arguments. See R. 2:11-

3(e)(1)(E).

Reversed.