Charles E. Tempio
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Attorney at Law

 Landlord-Tenant Attorney Discussing Defenses for a Cause of Action Supporting Eviction

1. Habitability

Implied warranty of habitability is included in all leases of residential real property. In a modern setting, the landlord should be held to livability and habitability fitness. In the inception of the lease, there is a covenant that there are no latent defects vital to the use of the residential property due to deterioration or construction. The landlord is required to ensure that these facilities remain in good standing throughout the lease. The tenant may deduct the cost thereof from future rents if the landlord fails to make repairs and replacements for a period of time adequate to accomplish such repairs and replacements vital to maintain the premises in a liveable condition. If the court agrees to entertain the tenant’s position, they will not be required to pay late charges or legal charges. A tenant must be prepared to deposit all of the base rent which is due with the court on the return date of a non-payment of rent cases if they raise a “Marini defense”. If the tenant is prepared to post the rent, the court will strive to have their litigants resolve their dispute between themselves. The tenant may be ordered to provide the landlord with a list of items that need repairs. If the repairs are executed to the satisfaction of the tenant, then 1) it can be agreed between the parties that the money on deposit be released to the landlord; or 2) the tenant may request a Marini hearing to try to obtain an abatement in the rent for the period of time that they claim the premises to be inhabitable. An abatement may be granted based upon a judge’s appraisal of the unit and its uninhabitability. Human habitation can be determined through assessing 1) whether the condition violates applicable housing code or sanitary regulations; 2) the duration of the unlivable condition; 3) the age of the structure; 4) the rent amount; 5) whether or not the tenant waived the right to object to said condition and; 6) whether or not the tenant was responsible for the condition. Tenants are not entitled to an abatement in a summary dispossess action for failure to pay rent when the landlord repaired a defective condition within a reasonable period of time after being informed of its existence. Amenities such as blinds, water leaks, wall cracks, and the peeling of paint would not be considered in diminution of rent and do not breach the implied covenant of the landlord.

2. Retaliation or Reprisal

No landlord of a residential premises, unless owner occupied with no more than 2 rental units, shall institute any action against a tenant or serve a notice to quit upon any tenant to recover possession i) as a reprisal for the tenant’s efforts to secure or enforce any rights under the lease of a contract, the laws of the State of New Jersey (and its governmental subdivisions), or of the United States or; ii) as a reprisal for the tenant’s good faith complaint of the landlord’s alleged violation of any health or safety regulation, law, code, or ordinance or; iii) as a reprisal for the tenant’s involvement in any lawful organization or; iv) on account of the tenant’s failure or refusal to comply with the altered terms of tenancy as a preisal for the previously mentioned. If the landlord has violated this statute, they shall be subjected to a civil action by the tenant for damages and other appropriate relief.

3. Waiver

If a landlord has knowledge of a cause for eviction and continues to recognize the tenant and the existence of the lease, they therefore waive the forfeiture. This most commonly applies to cases where tenants have pets in violation of a lease or pay rent habitually late in violation of a lease. If a landlord has the right to evict a tenant on one of the statutory grounds for a summary dispossession and fails to do so if they deley exercising this right, it could potentially be waived. An example of a landlord waiving their right to evict a tenant is the acceptance of rent after a court has entered a judgment of possession without first entering into a written consent judgment. Whenever a Notice to Quit is served upon a tenant, the landlord should not accept rent. If the tenant delivers the payment, it must be returned immediately back to the tenant.

4. Unconscionability

If a landlord seeks to impose new terms upon the tenant that did not previously exist, a tenant may raise the defense of unconscionability. The most common example of this defense is when the tenant believes the augment of rent to be unreasonable. There are numerous municipalities in New Jersey that have rent control regulations that limit the percentage a landlord may increase a tenant’s rent.

5. Bankruptcy

A landlord must apply to the Bankruptcy court for permission if they seek to pursue a tenant during the pendency of a tenant’s bankruptcy proceedings. A lease must either be “assumed” or “rejected” in bankruptcy. If it is assumed by the tenant, they will pay all rent that is due. If it is rejected by the tenant, the landlord holds the right to take possession. A landlord should take immediate action after a bankruptcy filing by a tenant to vacate the Automatic Stay for possession of the premises if a tenant ceases to pay rent. There are new exceptions to Section 311 of the Bankruptcy Reform Act of 2005. The first exception allows the continuance of any eviction proceeding involving the debtor’s residential property granted the landlord obtained a judgment of possession prior to the filing of the bankruptcy petition. A tenant may deposit all of the rent that is due with the clerk of the court, allowing them to make an application for relief from judgment of possession with the tenancy court. The second exception involves “endangerment” or “illegal use of controlled dangerous substances” at the premises. If the eviction proceeding was commenced before the filing of the bankruptcy case or if the endangerment was within 30 days before the bankruptcy filing, this section applies.

6. Transfer to Superior Court

The Rules of Court provide that a tenant may make a claim for relief, exceeding the Jurisdiction of the Special Civil Part, by having the case transferred to the general jurisdiction of the Law Division. The tenant must file and serve a motion in the Landlord/Tenant Court for this section to apply. The recent trend has been tenancy court judges retaining jurisdiction over the cases.

7. Landlord Registration Act 

A judgment of possession may not enter if the landlord fails to comply with the Landlord Registration Act. The Landlord Registration Act requires landlords who rent residential properties to file a Landlord Identity Registration Form or obtain a Certificate of Registration.

8. Security Deposit Act

The tenant may elect to apply their security deposit to the current rent due if the landlord fails to notify the tenant of the location of the deposit within 30 days after the receipt.

9. Relocation Assistance

Tenant Relocation Assistance Act (N.J.S.A. 52;31B1 and 20:4-1) provisions must be met when a landlord seeks to permanently board up or demolish the rented premises because of housing or health code violations.

10. Payment of Rent

The proceedings may be dismissed if a tenant pays the outstanding rent with the accrued costs of the proceeding.

11. No Right of Reentry Preserved

If a landlord seeks to terminate a lease based upon the breach of a lease covenant, the lease is required to contain a reservation in the landlord to the right if reentry for such breach. If there is a lack of a reservation of rights, the landlord can only sue for money damages based upon a breach of contract case.

12. Requirements for an Attorney

An attorney MUST be used to file the court papers and appear in court on the landlord’s behalf. The only exception is if the landlord is a sole proprietor or a partner in a general partnership. The case is subject to being dismissed for violation of Court Rules if a corporation or LLC files court papers and/or appears in court without legal counsel.

13. Improper, Missing, or Detective Notice to Cease and/or Quit

A properly formatted and written Notice to Quit, and possibly Notice to Cease if required in the specific cause of eviction, is required to enter a judgment for possession under most grounds of the Anti-Eviction Act. The complaint must be dismissed if the proper notices were not served and the landlord must start the cause of eviction procedure again.


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