In New Jersey, the single most utilized defense for non-payment of rent case is the landlord’s alleged breach of the implied warranty of habitability. New Jersey requires all residential, and some commercial landlords, to meet minimum habitable standards. It is important for landlords and tenants to understand how the implied warranty of habitability impacts their respective rights. Our firm has prosecuted and defended a wide variety of cases involving everything from lack of running water, leaks in the roof, to bed bugs.
The implied warranty of habitability requires the rental to be fit for habitation. This means the landlord must insure the unit has heat, electricity, hot water, among other things needed for the property to be “habitable.” This warranty requires a landlord to remedy any problem that reasonably impacts the ability for a tenant to reside in the rental unit.
It is important to understand what is considered a habitable issue and what is not. Aesthetics are generally not considered an issue of habitability. Cracks in walls, paint, chipped paint, worn carpet for example probably do not trigger a habitability defense. However, issues that impact a tenants use of the property, such as problems with heat, electric, plumbing, or rodents usually are considered habitability issues.
Having an habitability issue alone is not enough to trigger the defense. Tenants must give their landlords proper notice and a reasonable amount of time to fix the problem. Without proper notice a tenant’s habitability defense will fail. While there is no strict definition of what proper notice is, we would suggest sending multiple written notices to the landlord via regular and certified mail.
After adequate notice is given to a landlord and the landlord has failed to remedy the situation within a reasonable amount of time, the tenant may then do one of two things. The first is known as “repair and deduct.” A tenant has the right to repair the habitable issues (i.e. malfunctioning water heater) and deduct amount of spent for the repair from the next month’s rent. The second is to withhold all rent until the issue is repaired.
Each of these situations may result in the landlord filing an eviction action for non-payment of rent. The tenant would then show up on the hearing date for the eviction and claim the rent was withheld due to the rental unit not meeting. The judge would require the tenant to post all rents due with the court and owing at the time of the trial and then schedule a habitability hearing.
At trial, the judge will determine whether or not the tenant is allowed to pay a decreased rent amount due to the landlord’s breach of the warranty of habitability.
Sometimes simply understanding the law in New Jersey is not enough. Our attorneys have been vigilantly protecting our clients rights since the seventies. We have an organic understanding of the law that goes beyond simply reading New Jersey statutes and regulations. Our experience in practicing the law gives us an understanding of where the law came from, where it is going and most importantly how the law is implemented now.