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Post Sandy Part 1: Storm Damage & the Warranty of Habitability

Super Storm Sandy left permanent marks on New York and New Jersey. Our thoughts and prayers are with all those who suffered a loss. During difficult times, understanding accomplishes far more than contention. This is especially true when peoples’ property and homes are at stake. Both landlords and tenants have certain rights and responsibilities when a property is damaged by a storm. Many times, understanding each position can resolve storm damage disputes quickly and amicably.

As a general starting point, New Jersey tenants are protected from certain defects and conditions in an apartment under the warranty (think of it as a promise) of habitability. The New Jersey Supreme Court developed the doctrine of the warranty of habitability through a series of cases in the early 1970s. One of these foundational cases is Marini v. Ireland, 56 N.J. 130 (1970). Marini explained that in all tenancies a landlord promises to provide habitable and livable spaces.

Marini explains a landlord’s warranty into two components. The first part is that at the start of a lease there are no latent defects “vital to the use of the premises for residential purposes because of faulty original construction or deterioration from normal age or normal usage.” Essentially, a landlord promises a tenant that there is no hidden problem or impending problem that would make the apartment unlivable. These problems usually include hot water defects, issues with the heat, plumbing, etc. The bottom line is that when a landlord rents a space to a tenant, that space must be free from problems that would deprive the tenant of essential living components.

In the context of storm damage, the second component is more important. The warranty of habitability also requires landlords to maintain all those vital facilities in a condition which “renders the property livable.” This duty is ongoing. Accordingly, under Marini, a landlord must repair or otherwise ensure that all problems which affect the livability of an apartment are fixed.

In the context of storm damage, problems that tend to affect the livability of an apartment include cleaning or removing flooded carpets, clearing flood damage, cleaning/preventing the growth of mold, shattered windows, and ongoing leaks. Fixing problems like these fits into a landlord’s ongoing obligation to provide tenant a livable apartment. If the problems continue or get worse, a landlord may have breached the warranty of habitability, thereby triggering a range of tenant remedies.

It is important to note that Marini imposes obligations on tenants. To begin with, a tenant must recognize that a landlord is afforded time “adequate to accomplish repair and replacement.” Given the severity of some storms, tenants must understand that repairs cannot take place overnight. Even the most diligent landlords are at the mercy of repair contractors’ schedules and work load.

In addition, before exercising the remedy under Marini (explained in a future post) the tenant must provide the landlord with “timely and adequate notice…of the faulty condition.” The purpose of the notice requirement is to afford the landlord adequate time to address the problem and determine the appropriate resolution. It also serves the added function of starting a dialogue. In cases like these, it almost never hurts to have a conversation.

The warranty of habitability is an essential part of the landlord-tenant relationship. Although this post explains some of the legal principles and rights stemming from storm damage, tenants and landlords should keep this principle in mind: Working out a deal between the parties almost always produces a better and quicker result than going to court. The best formula to protect everyone’s interests is one part knowledge and two parts understanding.

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.