The Jayson Law Group LLC serving landlords in New Jersey is going to examine the differences between the defenses of Habitability versus Constructive Eviction. This post will look at the habitability defense, our next post will look at the constructive eviction defense. Both posts will use this example below:
A Tenant rents a dwelling from a Landlord. The term of the lease is for one (1) year with rent equaling $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 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. Due to the failure of the Landlord to act, 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 and the temperature 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), when in the middle of the month the Tenant is served with court papers 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 apartment?
The Habitability Defense
One defense that the Tenant can raise in this situation is the habitability defense, more commonly known by New Jersey courts as the Marini defense, named after the Supreme Court of New Jersey case Marini v. Ireland, 56 N.J. 130 (1970). When the Tenant raises the Marini defense, the Tenant is saying: Yes I live in the dwelling, but the habitability of the dwelling is in such a state that a reasonable person would not pay the full amount of rent owed to the Landlord due to the conditions. I am asking the court to abate (lessen) the rent to an amount the court deems reasonable and I will pay that amount.
While this blog post will not go into the details of the Marini case, the relevant point for this article is that in order to raise the habitability defense, the Tenant must have the rent available to put into the court to hold in escrow. If the tenant is unable to do that by the close of business day the eviction for failure to pay rent will stand and the Landlord can begin the eviction process. Depending on when the case is heard, the Judge could also require the Tenant put the following month’s rent, when due, with the court as well.
If the Tenant is able to submit the monies owed to the court, the court will schedule a Marini hearing. During the Marini hearing each side will submit proofs as to the condition of the apartment. It is important that all communications between the Landlord and the Tenant are documented, and photos of any unlivable conditions are also helpful. Furthermore, if the Tenant has spent money on to repair the damages that will also be factored into the court’s decision. Once this Marini hearing is held the judge will make a determination as to how much rent, if any, is due from the Tenant to the Landlord. The monies that the court is holding in escrow will be doled out as per the judge’s decision.
If you need a New Jersey landlord-tenant lawyer, contact our offices today for a free, confidential consultation.