Under New Jersey law, in every residential tenancy, there is an implied warranty of habitability. This means that the landlord must provide a habitable apartment or house for the tenant. Due to this warranty, tenants have specific rights in the event that an eviction proceeding is commenced against them.
In some instances, the tenant will notify the landlord in writing of the problem such as lack of heat, and advise the landlord that s/he is withholding the rent until the heat is restored. It should be noted that the tenant has an obligation to cooperate with the landlord to have the problem fixed. For example, the tenant may have to take time off from work to give the heating contractor access to the furnace.
Alternatively, after the tenant gives the landlord written notice of the serious defect and the landlord fails to act within a reasonable period of time, the tenant may pay for the repair and deduct the cost from the rent. It is important for the tenant to document the cost by retaining the receipt.
In other cases, the tenant may simply not pay the rent, and learn from the court on the date of the eviction proceeding of his or her rights under the New Jersey Supreme Court decision in Marini v. Ireland, based on the implied warranty of habitability.
When the case is called by the clerk in the courtroom, the tenant must notify the court that s/he is requesting a Marini hearing. The tenant needs to bring the full amount of rent due and to post it with the court. The Marini hearing will then be scheduled for a date a week or so later.
At the Marini hearing, the burden is on the tenant to prove that the apartment or house is not habitable. Evidence might include emails to the landlord, photographs and documentation of service calls to the property. It may be necessary for the tenant to produce a contractor to testify as to a particular defect. For example, a tenant is obligated to prove a mold condition by more than submitting photographs to the court, and should be prepared to present a lab report to demonstrate that the discoloration in the photo is mold and not dirt.
It may make sense for a tenant to file a complaint with the municipal health department, which may be followed by a municipal inspection of the apartment or house, and preparation of a written report by the inspector, to document the defective condition.
If the judge finds that the landlord has violated the implied warranty of habitability, s/he will make an equitable adjustment in the rent due. The judge may also require that the defect be corrected before the balance of the rent is released to the landlord.
