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Post Sandy Part 3: What if My Apartment is Destroyed?

Hurricane Sandy left an unprecedented amount of damage throughout New Jersey. Many apartments were damaged by flood, wind and other storm damage. Unfortunately, some apartments were totally destroyed. Parts 1 and 2 of this series explained tenants’ rights when an apartment is damaged. Tenants’ rights are much different when an apartment is so damaged it is destroyed. In these cases, an old statute can be a useful tool.

Tucked away in the statute books, is a statute that determines tenants’ rights when “buildings on leased premises [are] totally destroyed by fire or otherwise.” In those cases, N.J.S.A. ยง46:8-7 (the “Destruction Statute”), explains when the lease is terminated and for what rent the tenant is responsible. The statute states:

“Whenever any building or buildings erected on leased premises shall be totally destroyed by fire or otherwise, without the fault of the lessee, the rent shall be paid up to the time of such destruction, and then, and from thenceforth, the lease shall cease and come to an end. This section shall not extend or apply to cases wherein the parties have otherwise stipulated in their agreement of lease.” (Emphasis added)

Before applying the Destruction Statute, the first step is to determine if there is a lease and if so what that the lease requires. As the statute says, it only applies in cases where the lease doesn’t control. Even if there is a lease, the statute will apply if the lease does not mention what happens in the event of total destruction. Usually, the statute applies to month to month tenancies without a lease.

The practical effect of the Destruction Statute is that when an apartment is totally destroyed by fire or otherwise (for example, by a hurricane or flooding) the lease comes to an end the moment of the destruction. The tenant’s rent obligation extends only up until to the destruction occurred. Simply put, tenants cannot be held liable for rent after the apartment is destroyed unless agreed to in the lease.

Although the statute is straightforward, proving total destruction is not. Some landlords will disagree that an apartment is destroyed. A landlord can then sue for the amount of rent owed under a lease or unpaid for that month. If there is a suit, the tenant could raise the Destruction Statute as a defense. The difficulty will be proving that the apartment is destroyed and not just damaged. The legal distinction between damaged and destroyed is an important one. Wrongfully deciding that an apartment is destroyed can expose a tenant to potentially significant liability.

Hurricane Sandy’s destruction affects landlords and tenants in many different ways. Tenants in damaged apartments have different options than those in destroyed apartments. There is one common thread: All decisions affecting housing should not be taken lightly. 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.