Every Landlord Should Absolutely Know about this Eviction Defense

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All you know is that your tenant is overdue with the rent.  When it comes time to go to court, the tenant claims that you’ve failed to make some necessary repairs.  In fact, she asserts that the premises are intolerable.   Meanwhile, the court appearance is your first notice that the tenant finds the living conditions uninhabitable.   Is this acceptable as an eviction defense?

No doubt you already realize that non-payment of rent is a reason for eviction.  In fact, NJSA 2A:18-61.1 specifically lists a failure to pay rent as a grounds for removal.  It does not matter if the lease between the parties is written or oral.

Notwithstanding, every residential tenant has an implied warranty of habitability as described in this handout.   In short, this means that the heat must be in working order, as well as other vital facilities such as the toilet and shower. Meanwhile, the tenant cannot just arbitrarily decide to withhold rent.  There are certain requirements.

Although there is a bill pending in the Legislature concerning breach of implied warranty of habitability as an eviction, the court currently relies on  Marini v. Ireland, 56 N.J. 130.  To proceed with this type of defense, the tenant will need to request a Marini hearing.  At that time, the tenant is also required to deposit all unpaid rent with the court.

In some circumstances, the tenant may have made the repairs and seeks to deduct the expenses from the rent due under the lease.  In others, the tenant may be essentially holding the rent “hostage” until the repairs are made.   The Landlord/Tenant judge will ultimately decide the issue of habitability and make appropriate adjustments to the amount posted with the court.

New Bill Could Change Eviction Defense Procedures

As it now stands, the breach of implied warranty of habitability doctrine as a defense only appears in New Jersey case law.   However, both branches of the State Legislature have presented bills that could change the use of breach of implied warranty of habitability as it pertains to eviction actions.  The Senate’s proposed bill appears here.

For starters, the new law provides that landlords of rented or leased residential property must provide premises that are fit for human habitation.  Additionally, tenants should be assured that the conditions are not “dangerous, hazardous, or detrimental to their life, healthy, or safety.”

The language of the bill further indicates that the implied warranty of habitability should be interpreted broadly to afford tenants and residents protection.  In fact, the statement at the end of the bill suggests that this defense is rarely used.  The Legislature’s intent is to ensure that unsophisticated tenants are not evicted when their premises are uninhabitable.

The proposed law also references a covenant to repair as part of the implied warranty of habitability.  Factors considered as part of a breach would include the following:

(1)  Violation of any applicable housing code or building or sanitary regulation;

(2) Whether the deficiency or defect affects a vital facility;

(3)  The potential or actual effect on safety and sanitation;

(4)  The length of time the problem has persisted;

(5)  The age of the structure;

(6)  The amount of rent for the unit;

(7)  Whether the tenant has waived the defect or is estopped from raising the warranty; and

(8) Whether the tenant is in any way responsible for the defective condition.

Rental Fees

Under current law, tenants must post the rent due after requesting a Marini hearing.  However, the bill under consideration treats the rent deposit differently.

For one, there will only be select circumstances when the tenant is required to deposit outstanding rent with the court.  Under the new procedure, the judge will order a local court enforcement official to inspect the premises and deliver a report within thirty days.  Notwithstanding, the court may also extend the time period if deemed necessary.

So, what happens in the meantime?  The tenant does not need to deposit rental fees until after the judge has reviewed the report and given both parties a chance to be heard.  Subsequently, the court may order the tenant to deposit any money due to the landlord until judgment is entered.

Ultimately, if the breach is proven, the tenant’s rental obligation may be reduced to the reasonable rental value of the property in its imperfect condition.  Additionally, if the tenant has made repairs, the cost could be deducted from the outstanding rent.

How the Law Could Affect Landlords

If this bill makes it into law, landlords could be in for some problems.  Since the law doesn’t mandate  tenants  to deposit funds, there is the possibility that they will never be available.  All things considered, some may use the defense to delay eviction proceedings.  They may even make fraudulent claims of inhabitability.

Other parts of the proposed law could be troublesome as well.  The judge could order transmittal of reports to the Department of Community Affairs, as well as governmental agencies that provide housing subsidies.

Contact Us

At the Law Offices of Lawrence M. Centanni, we commit to providing experienced legal advice.  We are frequently in Landlord/Tenant courts throughout the local counties.  Contact us to see how we can assist you.

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