THE WARRANTY OF HABITABILITY

Landlords have a duty under New Jersey landlord-tenant law to maintain their rental property in a safe and decent condition. This duty applies to all leases, whether written or oral. The duty to keep rental units safe and decent is called the warranty of habitability. The warranty of habitability is based upon common sense: in return for paying rent to the landlord, the landlord must make sure that the housing is fit to be occupied by the tenant.

The warranty of habitability is judge-made law. It became the law in New Jersey because of decisions made by the New Jersey Supreme Court in the early 1970s. Cite: Marini v. Ireland, 56 N.J. 130 (1970); Berzito v. Gambino, 63 N.J. 460 (1973). There have been many New Jersey court decisions since then that have applied it to different situations and changing conditions. The warranty of habitability has been held to include keeping the basic elements of your housing unit in good condition. This includes taking care of physical elements, such as the roof, windows, walls, etc.; the systems that supply your heat, hot and cold water, and electricity and gas; appliances, such as the stove, refrigerator, and dishwasher; keeping apartments pest-free and common areas clean; and providing security against crime, such as locks on doors and windows to deter break-ins.

You can enforce the warranty of habitability of withholding rent, making the repairs yourself and deducting the cost from the rent, or going to court. You can learn how to do this by going to the part of this chapter titled “How to get your landlord to make repairs.”

STATE AND LOCAL HOUSING AND PROPERTY MAINTENANCE CODES

There are several codes adopted by the state or local governments that establish standards for maintaining rental property. You can enforce these codes by calling your state and local housing and health inspectors. These are trained personnel who inspect rental properties to enforce the codes and who are available to take complaints about code violations from individual tenants.

The New Jersey Hotel and Multiple Dwelling Code  sets standard for all residential buildings in New Jersey containing three or more rental units. It is also known as the “multiple dwelling” code. This code is contained in regulations issued by the New Jersey Department of Community Affairs. Cite: N.J.A.C. 5:10-1.1.

This code has detailed and specific rules that cover everything, including locks, window screens, ventilation, pests, plumbing, painting, garbage, living space, and so on. You can find these regulations in your courthouse library or public library. You can also look for it online.

Local property maintenance code

Most counties, towns, and cities also have their own housing, health, or property maintenance codes. These codes usually apply to all buildings or apartments, not just multiple dwellings. Single-family houses and two-family houses are covered by these codes. Call your city hall or municipal building and ask for the housing inspector or building inspector or health inspector if you have any questions or problems, or would just like to see a copy of the local housing code.

EXAMPLES OF SOME COMMON ISSUES AND PROBLEMS

Heat requirements

If your lease requires the landlord to provide heat, the landlord must give you the amount of heat required by the state and local housing codes and ordinances. Under the Multiple Dwelling Code, which applies to almost all buildings containing three apartments or more, from October 1 to May 1, the landlord must provide enough heat so that the temperature in the apartment is at least 68 degrees between 6 a.m. and 11 p.m. Between the hours of 11 p.m. and 6 a.m., the temperature in the apartment must be at least 65 degrees. Cite: N.J.A.C. 5:10-14 et seq.  The state Housing Code, a model code which has been adopted by many towns to cover one and two-unit rental buildings, has the same requirements. Cite: N.J.A.C. 5:28-1.12(m). Towns and counties that have adopted housing or health codes other than the state housing code to cover smaller rental buildings may have slightly different requirements. The housing inspector or board of health in your town enforces the heat requirements in the state and local codes. Larger cities have special no-heat hotlines that are set up especially to handle complaints. The inspector can file a complaint in court on your behalf, or you can file your own complaint. The landlord must then appear in court and explain why he or she is not providing heat. The court can impose stiff penalties, including fines or jail sentences.

For information about citations, and how to get more information about a particular law, see Finding the Law in the Landlord Tenant section.

Lead Poisoning

Lead poisoning is a dangerous health problem for many tenants, especially children. Lead poisoning is the presence of too much lead in the body. Children and unborn babies are particularly at risk of harm from lead poisoning since their bodies and nervous systems are still developing. Lead poisoning can cause serious physical and mental harm to adults and children. Don’t wait to do something about it if you think you or your children may be exposed to lead in your apartment or home.

A person can be poisoned by eating, drinking, or breathing lead or lead dust. Tenants—especially children under six—are especially at risk for being poisoned by the water from the faucet or by paint in their apartment or house. Until 1978, lead was used in house paints. In older buildings, there is usually a lot of lead paint. Peeling or cracking paint in older houses and apartments can be dangerous. Outside paint can also have lead in it. Peeling paint on the outside of houses or porches can fall on the ground.

Children like the taste of paint chips, and they chew on windowsills and paint chips that fall on the floor. Babies, toddlers, and preschool-age children like to put things into their mouths. In houses with peeling or cracking lead paint, lead dust can get on children’s hands, pacifiers, and toys. When children put their hands, pacifiers, or toys into their mouths, they can swallow lead dust and poison themselves.

Lead can enter your or your children’s bodies by breathing air with lead dust in it. Scraping paint off walls or vacuuming up paint chips from floors can spread lead dust around the house. Lead can poison an unborn child if the mother breathes lead dust.

Lead can also be present in dirt. For many years, there was lead in the paint used for the outside of houses. When the paint deteriorated, or the houses were demolished, the lead built up in the surrounding soil. Lead does not decay or dissolve; it stays in the dirt until it is removed. Children should not eat dirt or play in bare soil.

Testing for lead poisoning

There is a blood test that shows if you or your children are lead poisoned. By law, all children under age six should be tested for lead. Cite: N.J.S.A. 26:2-137.4. Children from ages 9 to 36 months who live in older housing are at highest risk for lead poisoning. If you have a child under 6 years old who has not been tested, speak to your doctor.

Your doctor can do the blood test. There are also many childhood lead poisoning prevention projects that test children for free. Hospital clinics may also test blood for lead. Children participating in the Medicaid program must be tested for lead poisoning for free. For information on testing, call your local health department.

Removing or abating lead paint

If your home has lead paint that is creating a hazard, you can use all of the ways described in this section to force your landlord to remove it, such as withholding your rent or asking for a rent abatement. The law also requires owners of apartment buildings to follow lead-safe maintenance requirements. Cite: N.J.A.C. 5:10-6.6.

Lead poisoning is a serious health hazard. If you or your children test for high levels of lead in your blood, there may be lead paint in your apartment or home or the dirt outside. You should immediately get advice and help from Legal Services on how to force your landlord to remove the lead paint as quickly as possible. You can also contact a private attorney to discuss whether or not you can sue your landlord for damages for harm caused by lead paint.

Because lead poisoning is so harmful, there are other laws that you can use. The law prohibits using lead paint in many things, including the inside or outside of apartments or houses. And lead paint that is already there should be removed or covered so that it doesn’t poison anyone. Dirt that is contaminated with lead should be removed. The law says that hazardous lead paint on inside or outside walls of a house or apartment is a “public nuisance” that must be removed by the landlord. Cite: N.J.S.A. 24:14A-5; N.J.S.A. 55:13A-7.

The local health department must investigate violations of lead paint laws and force the landlord to remove lead paint. If anyone in your family is tested and has a high level of lead in their blood, you should call the health department and ask them to inspect your home immediately.

If the health department finds that a child under age 6 has a high blood lead level, then the health department will test the inside of the home for lead. If there is no lead hazard inside the home, the outside of the building will be tested. If no lead hazard is found on the inside or outside walls, the local health department will test the surrounding dirt. When there is a lead hazard identified, the health department must order the owner of the building to remove the lead hazard. To correct the problem, the owner can cover the surface with hard material or remove the lead paint and repaint with non-lead paint. In some circumstances, tenants will be placed in another location at the owner’s expense while the owner corrects the lead hazards in the rental unit.

The health department will give tenants or occupants a copy of its notice to the owner so that they know what the health department has ordered the owner to do.

Support to help tenants relocate and landlords remove lead

New Jersey has established an Emergency Lead Poisoning Relocation Fund. Cite: N.J.A.C. 5:483.1. This fund provides temporary or permanent relocation assistance to tenant families whose children have tested positive for lead poisoning.

New Jersey law also provides for loans up to $150,000 and grants to landlords, based on financial need. The Lead Hazard Control Assistance Fund is a pool of grants and low-interest loans set aside for landlords who cannot afford the costly process of removing lead-based paint from aging buildings.

For more information about lead contamination, see Has Your Child Been Tested for Lead Poisoning?.

Window guards

Landlords of multiple dwelling units are required, at the tenant’s written request, to install and maintain window guards in the public halls and in the apartment of any tenant who has a child 10 years old or younger who lives in the apartment or who is regularly present in the apartment for a substantial amount of time. Cite: N.J.S.A. 55:13A-7.13; N.J.A.C. 5:10-27.1.

The law requires that all leases offered to tenants in apartment buildings must notify the tenants of their right to have window guards installed. Cite: N.J.A.C 5:10-27.1. The law also requires landlords to give tenants at least two annual notices that tell tenants that they can make a written request to have window guards installed. (One of these notices can be in a new or renewal lease.)

The cost of installing window guards may be passed on to the tenants, but landlords are not allowed to charge more than $20 per window guard. Note that window guards are not required on any first-floor windows or on any windows that give access to a fire escape. Owner-occupied buildings and some other buildings, such as seasonal rentals, are also exempt from this requirement. Cite: N.J.S.A. 55:13A-7.13(b). Please note that units used by migrant or seasonal workers in connection with any work or place where work is being performed are not considered “seasonal rentals.” These landlords are also required to inform tenants and install window guards in compliance with the law. Cite: N.J.S.A. 55: 13A- 7.13(b)(2).

Landlords are required to inspect window guards twice each year to make sure they are working properly and to record the inspections in a log for that purpose.

Tenants may complain to the Commissioner of the New Jersey Department of Community Affairs to enforce the law, and they may impose penalties and fines under the Hotel and Multiple Dwelling Law. Cite: N.J.S.A. 55:13A-1.

Any tenant who wishes to have a window guard removed will have to submit a written request to his or her landlord.

If you have small children and have not been notified about window guards, you may want to talk to a lawyer to find out if you are covered by this law.

Bed bugs

Bed bug problems were common in America before World War II. Because of widespread use of the pesticide DDT, they became less of a problem during the 1950s and 1960s. By 1970, bed bugs had been almost wiped out in this country. They could be found in Africa, Asia and parts of Eastern Europe, but they were rarely ever seen here.

That is not true anymore. As most tenants already know, bed bugs are back. Scientists discovered that DDT was extremely dangerous for people and animals. DDT was banned, and it has finally been almost eliminated from the environment. That is good for people, but it is also good for bed bugs. Because other pesticides do not do a good job of killing them, bed bugs have not only returned but they are also spreading very rapidly. More and more bed bugs are turning up in apartment buildings and homes, motels and hotels, health care facilities and dormitories, and every other place where people live.

Learning about bed bugs. Bed bugs are small, brown, flat insects. They feed only on the blood of people and animals. Bed bugs are active mainly at night. During the day, they prefer to hide close to where people sleep. Bed bugs can easily hide in tiny cracks and crevices, such as those found in mattresses, box springs, other pieces of furniture, walls, floors, ceilings, suitcases—you name it, bed bugs can probably hide in it.

If an apartment has bed bugs you can usually see them if you look in the right places, such as between a mattress and a box spring. Sometimes you can tell bed bugs are around because you see dark spots or stains on sheets and blankets. Sometimes you even see blood stains in a bed caused by the crushing of bed bugs. One good thing is that, so far, bed bugs have not been shown transmit diseases to people. But that does not mean much to adults and children who are covered with bed bug bites. Bed bugs make people feel bad physically, emotionally and mentally. An apartment filled with bed bugs is not fit to live in.

There are some other important things to know about bed bugs. One is that being a good housekeeper does not guarantee that you won’t have bed bug problems. Bed bugs are “hitchhikers.” They usually get into a home or apartment by hiding in luggage, clothing, furniture, or other things. Beg bugs can also get in by hiding in the clothing of tenants, landlords, superintendents, tradespeople, home health aides, people delivering meals or mail—even exterminators.

Because bed bugs only feed on the blood of people and animals, once they get in an apartment, cleaning alone will not get rid of them. (Even if the people leave, that does not mean that the bed bugs will die. Bed bugs can live for a year or more without food.)

Another thing to know about bed bugs is that trying to get rid of them by using pesticides alone does not work. The poisons that do kill them must be sprayed right on them.

Once the pesticides have dried, they don’t work on the bed bugs.

Another problem is that bed bugs often live in used furnishings—especially beds, couches, and other used items. One of the best ways to avoid them is not to use buy second- hand things. But lower-income people often cannot afford new furniture. Landlords may try to blame the tenants if there are bed bugs in an apartment saying that they should not have bought used furniture. This is unfair. There is almost no way a landlord can prove for sure how bed bugs got into an apartment because there are so many ways that hitchhiking bed bugs can get in.

Ways to get rid of bed bugs. The best way to get rid of bedbugs involves using more than one treatment. Good exterminators will spray pesticides on bed bugs they can see. They will also spray them into cracks in furniture and walls where bed bugs are probably hiding. Good exterminators will put things like furniture and appliances into bags and then pump in high heat or cold, which is a good way to kill bed bugs. Putting clothes, shoes, toys and other items in a clothes dryer at medium to high heat for up to 20 minutes will also kill them. Sometimes there is no choice but to throw infested things away. But even doing all of these things does not guarantee that the bed bugs will be gone right away. It often takes many tries before they are finally eliminated.

Getting rid of bed bugs is hard. Doing all the things needed to eliminate them can be very hard on older tenants, on tenants with disabilities, and on families with young children. This is especially true if the tenants have to get rid of things, like cribs, beds, or mattresses that they can’t afford to replace.

Knowing your rights is important. If you are a tenant with a bed bug problem, it is important for you to know your legal rights. It is also important for you to do the things you need to do to protect yourself from being blamed for a problem that you didn’t cause. What your rights are, and what you need to do, depend on the kind of building you live in.

If you live in a building with more than one apartment, you should notify the landlord in writing as soon as you see bed bugs in your home. (Send the notice certified mail, return receipt requested, and keep a copy for yourself.) Since anyone, including the landlord’s’ workers, could have brought the bed bugs in, it will be very hard for the landlord to prove that any one tenant is the cause of the problem. That’s why it is important for tenants to keep their apartments clean. An apartment that is not clean will not cause a bed bug problem. But you can be sure that the landlord will try to blame the tenant if the apartment is not clean. This could cause a problem for the tenant if the case goes to court. On the other hand, keeping a clean apartment will make it very hard for the landlord to try to blame a tenant for bed bugs.

The courts in New Jersey have said that it is a landlord’s duty to provide his or her tenants with a safe, livable apartment, one that is not infested with bugs or other things. This is called the “warranty of habitability.” Unless the landlord can prove that the tenant caused a problem, it is the landlord’s duty to fix it. This is true in the case of bed bugs as well. Since a landlord can’t really prove who caused a bed bug problem, the landlord must hire good exterminators to get rid of them.

If you live in a building containing three or more apartments, state regulations known as the “Hotel and Multiple Dwelling Health and Safety Code” also say that it is the landlord’s duty to get rid of bed bugs if they are in more than on apartment. The Code also makes it the landlord’s job to take good care of the building in order to prevent infestation problems. (The number given by the state to the Code is N.J.A.C. 5:10-10.2.)

If you live in public housing, the federal Department of Housing and Urban Development (HUD) has made it clear that the public housing authority is responsible for the cost of exterminating bedbugs. Cite: HUD Notice PIH-2012-17. Another HUD Notice imposes the same responsibility on private owners of federally-subsidized housing. However, this notice does say that in certain cases tenants can be responsible for paying for extermination if they do not do what is necessary to prevent or eliminate bed bug problems. Cite: HUD Notice H-2012-5. Both notices emphasize that tenants are responsible for telling the Housing Authority or landlord about bed bug problems as soon as they know they have them.

If you rent a single-family house, or rent one apartment in a house with only two apartments, the laws are a little different. Local housing codes make it your responsibility to exterminate bed bugs or other pests, unless you can show that the problem was caused by the landlord not taking good care of the building. However, if the bed bugs are there when you move in, or there are bed bugs in both apartments in a two-family house, then it is the landlord’s duty to get rid of them.

Just like tenants in larger buildings, you should notify the landlord in writing as soon as you see bed bugs in your home.

Getting legal advice and help is important. Where bed bugs are concerned, you should get legal advice and assistance if:

• You live in a building with two apartments or more and your landlord tries to make it part of your lease that you will be responsible for getting rid of bed bugs.
• Your landlord wants you to pay to get rid of bed bugs in your apartment. Even if you live in a single family house, you should get legal advice before you pay for extermination.
• Your landlord refuses to do anything to get rid of bed bugs in your apartment.
• The exterminator that comes to get rid of bed bugs wants you to do things that will be very hard on you and your family, such as throw away furniture that you can’t replace. These may be the right things to do, but you should get advice to make sure that the exterminator knows what he or she is doing.
• You do have to throw things away. You should get legal advice to find out if an agency or community organization must or can help you replace them.
• Your landlord says he is going to evict you or sue you because of the bed bugs. If this happens, you should get legal help immediately.

Your local Legal Services office will be able to help you if you qualify based on your income.

If you find bed bugs in your home, the important thing is not to wait to do something.

The best way to deal with bed bug problems is to get help as soon as possible.

How to get your landlord to make repairs

The law gives you several ways to assert your right as a tenant to safe and decent housing and to make your landlord repair defective conditions in your rental unit. You have the legal right to:

• Call in the building or health inspector,
• Use your rent to make repairs,
• Withhold your rent, and
• Take legal action.

Note: If you live in a building that was built with the help of state funding, the landlord must hold a meeting for all the tenants every three months, so that the tenants can discuss complaints they have about conditions in the building. (A meeting would not have to be held if a majority of the tenants voted not to hold it.) Cite: N.J.S.A. 55:14K-7.3; P.L. 2007, c. 8.

USING THE HOUSING AND HEALTH CODES

As discussed in the preceding section, rental units must meet city and state housing and health codes. The codes list the requirements that the landlord’s property must meet so that it can be approved as a safe or “standard” building. The codes deal with heat, plumbing, security, roofing, pests, and other serious defects like weak walls.

If you feel that the conditions in your apartment or house are defective, unlivable, or dangerous, tell your landlord. If your landlord fails to make the repairs in a reasonable period of time, call the local building inspector and ask him or her to inspect the property as soon as possible. If you can, be present when the inspector does the inspection so that you can point out all of the problems. Ask for the inspector’s name, and ask him or her to send you a copy of the report.

If the needed repairs present a sanitation problem, such as a sewage leak, call the city or county board of health. Ask for an inspector to check the condition. When the inspector comes, get his or her name.

If the inspector finds code violations, he or she will send a letter to the landlord listing the code violations. This letter will advise the landlord that a reinspection to check whether the repairs have been made will take place on a certain date.

Some housing and health code inspectors do not send the tenant a copy of the inspection reports or inform the tenant of the results of the inspection. As a tenant in the property, you have a right to receive a copy of these reports, and you should make sure to ask that copies of all reports be sent to you.

Reinspecting a housing unit

If your housing unit fails inspection, it must be reinspected by the housing or health code inspector. You might find that a reinspection does not take place. If this happens, you should call the inspector and inform him or her that the landlord has not made the required repairs.

If, on reinspection, the inspector finds that the landlord has not made the repairs, another inspection will be scheduled. If violations are still not corrected, the building inspector should then give a summons to the landlord to appear in municipal court. If found guilty, the landlord can be fined.

Enforcement of housing and health codes is not always taken seriously by local government officials. Few landlords are brought to municipal court for violations of the property maintenance code, and even fewer are ever fined in court. Tenants must aggressively insist that inspections and reinspections be done thoroughly and in a timely manner and that inspectors take landlords who don’t comply with the code to court.

Condemning or closing a building

The housing and property maintenance codes allow inspectors to declare a house or apartment building “unfit for human habitation” if there are serious defects in the rental unit or building. These defects must pose a threat to the health and safety of the tenants. A collapse in the structure of a building or an absence of heat or hot water are the types of situations that may warrant declaring a building unfit. By declaring the building unfit, the inspector can order you to leave your rental unit and close the building.

There have been cases where an inspector has condemned a building even though the defective conditions were not serious enough to force tenants to leave the building. For example, a landlord seeking to convert a building into condominiums could get the tenants out of the building with the inspector’s help, thereby avoiding the requirements of the condominium conversion laws. Cite: 49 Prospect Street v. Sheva Gardens, 227 N.J. Super. 449 (App. Div. 1988). If you suspect that the housing inspector or your landlord is trying to illegally force you out of your home, you should get advice from a lawyer.

If the building inspector tells you in writing to move because the building has been declared unfit, you might be entitled to relocation assistance from the local government. Relocation assistance includes help in finding a new place to live, moving expenses, and up to $4,000 in assistance towards buying or renting a house or apartment. Cite: N.J.S.A. 52:31B-1 et seq. and N.J.S.A. 20:4-1 et seq. (See Relocation assistance.)

Using the board of health to get heat

Many local boards of health have the power to make repairs to heating systems so that you can receive heat. Your local government must have enacted an ordinance that gives the board of health this power. Even with an ordinance, the board of health can act only if the temperature outdoors is below 55 degrees. To get action, you must call the board of health and tell them that you tried to get the landlord to fix the heat. The board will then wait 24 hours before they have someone make the repairs. Cite: N.J.S.A. 26:3-31(p) and Jones v. Buford, 71 N.J. 433 (1976).

What if the heating oil runs out?

Some New Jersey cities have programs to provide an emergency delivery of oil, at government expense, when tenants have no heat because the landlord did not buy oil. The city then collects the money directly from the landlord. Check with your local government to find out about such programs.

USING THE RENT TO MAKE REPAIRS AND DEDUCT

Under certain conditions, tenants can use the rent money to make the repairs. After making the repairs, the tenant subtracts the cost of the repairs from the rent instead of paying it to the landlord as rent. This is called repair and deduct. There are certain rules for repair and deduct that you must follow:

• The conditions that are in need of repair must be serious enough to affect the tenant’s health or well-being.
• After waiting a reasonable amount of time, the tenant should have the repair done and pay for it with all or part of the rent money.
• The cost of the repair must be reasonable.

The tenant then should deduct the cost from the next rent payment and give the landlord a copy of the receipt for the repair. Cite: Marini v. Ireland, 56 N.J. 130 (1970).

Example: The toilet in your apartment doesn’t work. You let the landlord know in writing that it is broken. Several days go by and the landlord does not repair it. You then call a local plumber to fix the toilet, pay the plumber, and get a receipt. The cost of the toilet repair is $50. When the rent is due the next month, you give the landlord the rent money, minus the $50 for the repair, instead of the full amount of the rent. You give the landlord a copy of the plumber’s bill and keep the original copy for yourself.

In an emergency situation, if you can’t reach the landlord in person or by telephone, you can have the repairs made and then tell the landlord.

The use of repair and deduct sometimes leads to disputes between the landlord and tenant. A landlord may try to hold you responsible for the full rent even if you used the rent to repair a serious defect. In this situation, the landlord may try to evict you in court for nonpayment of rent. If you show the judge a copy of the letter you sent asking the landlord to make the repair and a copy of the repair receipt, the judge should not hold you responsible for the full rent. However, the judge may not agree with you, and may hold you responsible for the full rent. Therefore, you should try to take the entire amount of rent with you to court.

WITHHOLDING RENT

Where a landlord simply refuses to make needed repairs, tenants often have little choice but to stop paying rent. This is called withholding the rent if it involves one tenant. If some or all of the tenants in one building or complex withhold rent as a group, it is called a rent strike. By withholding rent, tenants put pressure on the landlord to make repairs, and they avoid paying for services they are not receiving. Withholding rent is perfectly legal and often can be the only way to force the landlord to make necessary repairs.

How to start withholding rent

There are two steps you must take if you decide to withhold rent to force the landlord to make repairs:

1. You must send a letter to the landlord explaining what conditions must be corrected. The letter should explain that you will stop paying rent if the repairs are not done right away, and that you will not pay more rent until all of the repairs are completed. You should also explain that, once the repairs are completed, you will pay a reduced rent from the time the repairs were needed until the time the repairs are completed. The letter should be sent by certified mail, return receipt requested, and you must keep a copy of the letter since you may need it later in court.
2. You must save the rent you withhold each month and put it in a safe place. A bank account is a good place to deposit the rent each month because you will earn interest on the money. Saving the rent is the most important thing you can do. You are withholding rent, not spending it on something else!

What to expect

NOTE! This is where saving the rent you withheld becomes very important. You cannot be evicted for nonpayment of rent if you have saved all of the rent and you appear in court with it on the day you are summoned.

You should tell the judge that you withheld your rent because of the bad conditions. The judge may require you to deposit the withheld rent with the court clerk. It is very important that you have all of the rent money at that time because, if you don’t have the money, you may be evicted. The judge will then schedule a second hearing to hear evidence about the conditions in your apartment. This is called a rent abatement hearing and is described in the next section.

Rent abatements

The rent abatement hearing gives you the chance to show the judge just how bad the conditions are in your apartment or in the common areas of the building. Make a list and take it with you to court to remind yourself when you testify. You should take the copy of the letter that you sent notifying the landlord of your decision to withhold rent and about the defective conditions in the apartment or house. You should also take any reports by housing or health code inspectors about the conditions. If you can, take pictures of holes, stains, and other problems and show them to the judge.

The judge hearing your case has the power to lower the rent for the months in which you withheld your rent. The judge can then allow you to keep the difference between your regular rent and the lower rent for the months you withheld rent. The judge also may allow you to pay the lower rent in the future until the landlord makes all of the repairs. The judge will list each repair that must be made before the rent can be returned to its regular amount. This is called a rent abatement order.

The amount that your rent is lowered depends on how bad the judge finds the conditions to be. If the conditions are so bad that the apartment or house is unlivable, the judge can reduce the rent to nothing and order that you don’t have to pay rent until the landlord takes care of the problems. This is why you should try as best as you can to fully describe each problem you are having so that the judge understands the difficulties you are having in your everyday life.

It is important that you use rent withholding only if the problems in your house or apartment are serious and only after you have given the landlord notice. At a rent abatement hearing, the judge could also decide that the conditions are not bad enough to justify your actions and require that you pay all of the withheld rent. If this happens, you may be responsible for paying court costs, late charges, and the cost of the landlord’s attorney’s fee. (See Defenses to Eviction section.)

Settlement in court

In court, you may reach a settlement with the landlord before going to trial. If the landlord agrees to make the repairs, put this in the settlement agreement. If the landlord later does not make the repairs as promised, you can sue to enforce the agreement.

Tenants joining in a rent strike

A rent strike is rent withholding by some or all of the tenants with the same landlord. A rent strike increases the pressure on the landlord because, as more tenants withhold rent, the landlord will have less money coming in. Working as a group, tenants also stand a better chance in court. It will be harder for the landlord to convince the judge that any one tenant is somehow responsible for the defective conditions or for the landlord to deny that the defects exist. Instead, each tenant will be able to back up what each other says in court. Tenants who act together greatly improve their chances of getting the court to put pressure on the landlord through a large abatement.

As more tenants join in the rent strike, the housing and health code inspectors will be more likely to put more pressure on the landlord to make repairs. Working together also increases the possibility that the tenants can hire a lawyer. With a lawyer, you may have a better chance of getting the judge to order repairs or appoint a receiver. A rent strike is often the best way to force a resistant landlord to deal with poor housing conditions.

COURT ORDER TO REPAIR

Instead of rent withholding, tenants can go directly to court and ask the judge to order the landlord to pay for repairs. This type of lawsuit is filed in the Small Claims Court and can include a request that the judge order the landlord to pay money back for repairs made by the tenants. Cite: R.6:1-2(a)(2). See Going to court to get back your security deposit.

Tenants should talk with their regional Legal Services office, tenant organization, or a private lawyer if they want to know more about using Small Claims Court or if they are not sure about how they should fill out the papers required to file a Small Claims complaint.

RENT RECEIVERSHIP

New Jersey has two laws that allow tenants or public officials to file a petition with the court to appoint a receiver to run the building or complex. The petition, which must be filed in Superior Court, asks the judge to name someone other than the landlord to collect all of the tenants’ rent payments and to use the money to make repairs to the building. The person who is named by the court to collect rents and order repairs is called a rent receiver. Cite: N.J.S.A. 2A:42-85 and N.J.S.A. 2A:42-114.

A judge will usually consider granting the petition when the landlord has a history of refusing to correct conditions that deprive the tenants of heat, water, electricity, or other essential services. A rent receiver is usually appointed by the judge only when repair and deduct, rent withholding, and other attempts to have repairs made have failed.

The following example shows how this law works. The elevator in a five-story building breaks down. The landlord is notified in writing but does not respond. The cost of fixing an elevator or replacing it can be several thousand dollars. If only one tenant withholds rent, it will take years to raise the money. Under the receivership law, one tenant can ask the court to order all of the other tenants in the building to pay the rent to the court or to a bonded receiver. The receiver can then use the rent from all of the tenants to fix the elevator. The law sets up a fund to help some receivers make repairs. Cite: N.J.S.A. 2A:42-114.

Petitioning for a rent receiver requires the help of an attorney. Keep in mind that, if the landlord is trying to evict you because you withheld rent due to very bad conditions in your building, the judge, on his or her own, can begin the process of having a receiver appointed. You may want to ask the judge about this during a rent abatement hearing if your landlord is completely uncooperative and the conditions in your building are serious. Cite: Drew v. Pullen, 172 N.J. Super. 570 (App. Div. 1980).

GOING TO THE LANDLORD’S INSURANCE COMPANY

Another way to put pressure on the landlord to make repairs is to complain to the landlord’s property insurance company about conditions that are a safety hazard. In towns with rent control, the name of the insurance company will appear in bills the landlord submits in connection with a hardship increase application. In other places, it may be more difficult to learn the name of the landlord’s insurance company.

This information last reviewed: Feb 1, 2015