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Post Sandy Part 2: Storm Damage & Tenants’ Remedies

Part 1 of this series described the rights and responsibilities of landlords and tenants under the warranty of habitability. Marini explains that a landlord implicitly promises to provide an apartment free of latent defects and maintained in a livable condition. While tenants have a right to a regularly maintained defect free apartment, they also have an obligation to inform the landlords of any problems and allow sufficient time for those problems to be fixed. In most cases, the repairs are made and both parties are happy. If the problems continue, tenants have a number of options to consider.

Before describing the remedies available under the habitability cases, tenants should understand what factors courts may use to determine if a problem with an apartment affects the habitability. The New Jersey Supreme Court, in Berzito v. Gambino, 63 N.J. 460 (1973), listed some of the factors courts can consider.

1. Has there been a violation of any applicable housing code or building or sanitary regulations?

2. Is the nature of the deficiency or defect such as to affect a vital facility?

3. What is its potential or actual effect upon safety and sanitation?

4. For what length of time has it persisted?

5. What is the age of the structure?

6. What is the amount of the rent?

7. Can the tenant be said to have waived the defect or be estopped to complain?

8. Was the tenant in any way responsible for the defective condition?

The eight factors listed above are not exclusive. In fact, courts are free to evaluate all of the facts in a case in order to arrive at a result that is “just and fair to the landlord as well as the tenant.” Only if a defect or problem goes to the livability will a tenant’s remedy be triggered. It’s important to keep this in mind before choosing any remedy.

The most extreme option, only applicable in certain fact specific situations, is to declare a constructive eviction and vacate the apartment. The New Jersey Supreme Court explained the doctrine of constructive eviction in Reste Realty Co. v. Cooper, 53 N.J. 444 (1969). Reste sets forth the circumstances that give rise to a constructive eviction as:

“…any act or omission of the landlord or of anyone who acts under authority or legal right from the landlord, or of someone having superior title to that of the landlord, which renders the premises substantially unsuitable for the purpose for which they are leased, or which seriously interferes with the beneficial enjoyment of the premises…” (Emphasis added)

Essentially, the doctrine requires an affirmative duty to act and to refrain from acts that would cause the premises to be unlivable. In the context of storm damage, landlords have an obligation to ensure that the property is suitable for living. This means that if the property is damaged, it must be repaired. Failing to repair the property can be an omission which would ultimately render the property uninhabitable.

Constructive eviction (and all habitability defenses) should only be invoked when the failure to make repairs directly affects the livability in the apartment. Conditions that affect livability generally include running water, heat, shelter from the elements and the availability of utilities (the utilities must be available, not necessarily free). If a hurricane, storm or other natural disaster affects one of those conditions and goes unrepaired, a constructive eviction can be declared.

After the right to declare a constructive eviction exists, the tenant must vacate the property within a reasonable amount of time. How long the tenant has to vacate is highly fact specific and almost turns entirely on the circumstances. One general principle should be followed: If a tenant tells a landlord that an apartment is totally unlivable, remaining in the unlivable apartment for a length of time does nothing to help the tenant’s case.

Invoking the doctrine of constructive eviction carries some risk. If a tenant declares constructive eviction and vacates, there is always a chance that the tenant will be held liable for the balance of rent payments on the lease. If a landlord disagrees with the tenant’s assertion that the apartment is unlivable, he/she can sue the tenant for the collection of the money owed under the lease. For this reason, the decision to vacate should not be taken lightly.

A less drastic remedy is commonly referred to as “repair and deduct.” Repair and deduct stems from another habitability case, Marini v. Ireland, 56 N.J. 130 (1970). When a landlord fails to make repairs that are “necessary to maintain the premises in a livable condition” the tenant can make the repairs and deduct the cost from future rent. Tenants should maintain good records before deducting costs. If the landlord sues for unpaid rent, the tenant must be able to show how much was deducted and for what purpose– third party invoices are usually best.

Before a tenant can pursue the remedy of repair and deduct, the tenant must provide “timely and adequate notice” to the landlord. It is important that the notice be specific and detailed so that is fairly appraises the landlord of the condition to the remedied. Although the notice is not required in every circumstance, the best course of action is to provide it.

Finally, a tenant can raise the landlord’s failure to make repairs as a defense in an eviction for nonpayment of rent case. The remedy in this case, is not the accomplishment of repairs, rather the abatement (a proportional reduction) of rent until the repairs are made. This remedy comes from Berzito v. Gambino, 63 N.J. 460 (1973). Under Berzito, when a landlord attempts to evict a tenant for failure to pay rent, the tenant may ask the court for an abatement of the rent owed while the need for repairs exists. The tenant must show that there is a need for repairs and explain the amount of the deduction he/she is seeking. If the tenant prevails, the rent will be reduced retroactively and going forward until repairs are made.

Although tenants have powerful remedies when the warranty of habitability is breached, it is important to keep in mind that most disputes can be resolved amicably. Many times a reasonable conversation between a landlord and a tenant can iron out problems without the need for litigation. If an agreement can’t be reached, tenants should know that they have options. New Jersey landlord-tenant law provides tenants valuable tools for ensuring that landlords maintain habitable apartments.

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.