In our last post, The Jayson Law Group LLC created a scenario between a Landlord and a Tenant where the relationship between the two parties soured as the conditions of the Tenant’s rented dwelling deteriorated. Here is a refresher of the scenario:
A Tenant rents a dwelling from a Landlord. The term of the lease is for one (1) year with a rental amount of $1,500.00 per month due on the first of the month. For the first five months of the lease everything is going fine. The Tenant makes the monthly payments on time. If there is an issue with the dwelling, then the Tenant notifies the Landlord and the Landlord fixes the issue in a timely manner.
In 6th month of the lease, the Tenant notifies the Landlord that there is a water leak. Unlike in previous months the Landlord does not respond or fix the problem. By the end of the month this water leak caused a mold problem and the Tenant had property destroyed by the mold. Because the Landlord failed to fix the problem, the Tenant decides to not pay the rent due the following month.
In the 7th month the leak still is not fixed. The mold is spreading and now the heat does not work. The temperature in the dwelling is around 32 degrees at night. Once again the Tenant notifies the Landlord not only of the leaking water and the mold, but also of the failure of the heat to work, and again the Landlord does nothing. The Tenant decides that the house is not in a livable condition and when the next month comes does not pay the rent again.
The tenancy is now in its 8th month. The Tenant has not paid rent for two months (the 7th and the rent for the 8th month has not been paid and is now late). In the middle of the 8th month the Tenant is served with court papers stating that the Landlord is now seeking eviction of the Tenant due to failure to pay rent. What can the Tenant do to remain in the dwelling?
The last post we examined the habitability defense. This week, we examine the constructive eviction defense if the Tenant is sued for eviction for non-payment of rent to the Landlord.
The Constructive Eviction Defense
Vacating the Dwelling
Unlike the habitability defense, the Tenant does not need to remain in the dwelling to raise the constructive eviction defense. However, if the Tenant terminates the lease on his own accord, but the court finds that this action was unwarranted, the Tenant would be responsible for the monies due and owing for those months when the Tenant did not pay rent. Furthermore, the court also requires that the Tenant exercise the remedy of vacating the premise within a reasonable time. Failure to vacate within a reasonable time would void the constructive eviction. See Duncan Dev. Co. v. Duncan Hardware, 34 N.J. Super 293 (App. Div. 1956). Currently there is no hard and fast rule as to what constitutes a reasonable time. In this scenario the Tenant would attempt to collect from the Landlord any damages proximately caused by the landlord’s breach including the cost of renting a new dwelling.
Remaining in the Dwelling
The other option afforded to the Tenant is to continue residing in the apartment and ask the court to abate (lessen) the amount of rent owed. This would work exactly the same way as the Marini defense discussed in our last post. In this circumstance the Tenant would be responsible for paying some part of the rent to be determined by the court.
Conclusion
This concludes The Jayson Law Group LLC’s examination of the difference between the defenses of habitability and constructive eviction. The goal of a defense of habitability is to abate your rent so that you pay only a portion of what is due. The goal of a constructive eviction defense is that it allows you to terminate your lease early. Hopefully you do not find yourself in this situation. However, if you do, you are now better prepared.