Habitability Hearings

All NJ apartment leases carry with them two kinds of implied warranties. These are established by the NJ legislature and apply to the vast majority of landlord-tenant leases within the state. These warranties apply to your lease, even if your lease doesn't mention them.

An "implied warranty of habitability" means that every landlord must warrant, or promise, that the apartment is fit for residential purposes (i.e., habitation). This warranty applies to the entire term of the lease. The warranty means that when there is a serious problem with the apartment---one that impacts your ability to actually live there---that the landlord has a duty to repair the situation or problem.

Its important to understand that most apartment problems, although unsightly and annoying, do not fall into the "habitability" category. A crack in the wall, a loose railing, chipped paint, and broken blinds do not constitute habitability problems. However, things like rats, bats and squirrel infestations do. Things like lacking heat in the winter, or a working stove. Things like raw sewage coming up through the toilet, or dripping down from the ceiling above. Things like having broken windows in the winter, or electricity that doesn't work---provided that you are paying your bills---these, too, could constitute a habitability problem.

Another issue that can come up is something called "the implied covenant of quiet enjoyment." In a sense, this is about a tenant's right to privacy in the apartment, or their right to enjoy the apartment in peace and without a high level of disturbance.

In large apartment buildings, one sometimes finds that there is a single, or number of problem tenants who play their music loudly at all hours of the night, bang around in the hallways, and prevent people from getting sleep. If this is consistent enough over time, and of a high degree, the tenant may have a claim regarding quiet enjoyment. In addition, if the landlord comes into your apartment without permission, harasses you, and does other unconscionable things and these events happen over a period of time, one may have a claim that the landlord has breached the covenant of quiet enjoyment.

How do these rules work for you?

In NJ, you have a right to repair bad conditions in the apartment and deduct this from your rent. This is called "repair and deduct." However, you need to go through a number of steps before you do this. You need to notify the landlord of the problem, in writing. You need to send him a letter, via both certified and regular mail (keeping a xerox copy for yourself). You need to give the landlord a reasonable period of time to make the repairs. If he doesn't, then you have the right to make the repairs yourself and deduct this from the rent. This is a self-help remedy upheld by NJ law, especially by the case of Marini v. Ireland, 56 N.J. 130.

Another thing one can do--but this is the more dangerous option--is to break the lease and move out, claiming constructive eviction. This should never be done without first consulting an experienced attorney. In this situation, the client and his/her attorney would argue that the condition of the apartment is so bad, that the landlord's neglect of the premis is so bad, that the apartment is no longer fit, safe or suitable for human habitation. The tenant would then move out.

The problem with this, though, is that the Landlord always has the right to sue you for the balance of the rent that you may owe. On the defense, you then invoke the doctrine of "constructive eviction." If the judge believes that you were, indeed, constructively evicted (due to the landlord's negligence) then you would not have to pay the remainder of the lease. Furthermore, the landlord would have to refund the security deposit. However, you should know that its very hard to prove constructive eviction. And many judges are loathe to find that constructive eviction exists, or was justified, when less drastic actions were available to the tenant. I do not, under any circumstances, suggest this as a course of action unless an attorney is first consulted and they advise that this is a sensible thing to do.

A third situation---one that is, by far, one of the most common---is to have a habitability hearing. Here, one would withhold all rent and put it in an escrow account with a local bank or credit union. Here, you still need to be notifying the landlord of the problems. You need to send him letters via regular and certified mail. However, rather than repair/deduct, you withold the entire amount of the rent.

This is tricky, because the landlord will often file a complaint, with the local landlord-tenant court, and try to evict you for nonpayment of rent. This is dangerous, because oftentimes, the mere filing of a complaint in the LL-Tenant court can show up on a person's credit report -----even if they win in court.

However, sometimes, this is an appropriate course of action. Here, the landlord would file a complaint for eviction. The tenant would then go to court (on the scheduled court date) and talk to the judge about all the problems they are having with the apartment. If the judge thinks that these are serious problems, then he may order a habitability hearing. However, before you can have the hearing, you will need to deposit money with the court clerk's office. The entire outstanding balance of rent that is due must be given to the court.

Once deposited, the court will hold all outstanding rent monies in a special escrow account. You will come back to court on the date of the scheduled hearing. The landlord will present his case. You will present your case. If the judge thinks that there is an issue with habitability, he may give you what's called a "rent abatement." Basically, this means that rather than give all the rent money (which you put into the court's escrow account) back to the Landlord, the court will give some of it back to you.

Sometimes, a Habitability Hearing (or Marini Hearing, as they are often called) is the best option for the tenant. However, one needs to be careful with this, as with all things legal. The landlord may be very mad, because he had to go to court numerous times, because he hired an attorney and the like. If you really want to stay in the apartment, year after year, and have a good relationship with your landlord, then one shouldn't "jump the gun" and resort to this sort of litigation.

Although I am an aggressive and passionate advocate, with a good deal of trial experience, I have learned that negotiation and diplomacy are often the best and smartest policies to initially utilize. Working with the landlord, perhaps through a third party like an attorney--can often fix the problem without damaging the long term relationship with the landlord---something upon which all tenants depend.

One last thing. The key thing in all landlord tenant cases is documentation. I have had many clients that communicate with their landlord via text messaging, Facebook, email, telephone and the like. While these technologies are all well and good, they are often not sufficient forms of evidence in a legal proceeding. The old fashioned method of communication---actually writing a letter---and sending it out via the US Postal Service---regular and certified mail---is the most helpful thing in the world to your case. 

This way, you can actually document the fact that (a) there is a problem, (b) that you told the landlord about the problem, (c) that he has had reasonable time to fix the problem, and (d) that he nonetheless refuses to do anything about it.

Many clients have face-to-face discussions with their landlords, where the landlord promises to fix such and such. While these conversations may be admissible in a hearing or trial, the fact remains that they do not reallyconform to the law. They are hearsay and there's no way to prove that you actually had these conversations. The best way, clearly, is to send the landlord letters in the mail.

My South Jersey Law Office regularly serves the NJ communities of Camden, Bellmawr, Runnemede, Deptford, Westville, Gloucester Township (Blackwood, Glendora, Erial, Sicklerville, Blenheim, Lambs Terrace, Chews Landing, and Hilltop) and Washington Township, (Turnersville, Sewell, Hurffville, Grenloch, CrossKeys, Bunker Hill and Chapel Heights).

If you live in these areas, or any other area of South Jersey and there are major habitability or livability issues with your apartment or leased commercial unit, then contact my office immediately for a free consultation.  I treat every client with extra-special care and go over the evidence and facts of their case, in-depth, so that no stone is unturned in their legal case.

Call us for quality, compassionate, and individualized representation: 856-873-3730






The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver.