What is Rent Abatement?

Rent abatement is the process by which a court determines if the amount of rent that you pay should be lowered because there were conditions which made your apartment uninhabitable (unlivable).

The subject of rent abatement usually comes up when a tenant has not paid rent and a landlord files a complaint for eviction against the tenant for non-payment of rent. The claim that an apartment was uninhabitable and that a tenant is entitled to a rent abatement is a defense to the landlord’s claim that the tenant owes him or her rent.

How To Prove That You Are Entitled Rent Abatement

In order to successfully prove to the judge that you should be allowed to pay a lower rent for the months during which your apartment was uninhabitable or had defective conditions, you must prove your claims at a hearing called a rent abatement or Marini hearing. (Marini was the last name of a party in the case that first established the right to rent abatement).

You prove your case by presenting different forms of evidence including testimony from witnesses, documents and sometimes pictures or videotapes. If you convince the judge that you are entitled to a rent abatement, the judge will order that you shall pay a reduced amount of rent due to the conditions in your apartment that made it difficult or unsafe to live there.

Note: Even if the judge finds that you are entitled to a rent abatement, you will probably be required to deposit the money you owe before the rent abatement hearing is scheduled.

Procedure at a Rent Abatement Hearing

Presentation of Tenant’s Case

At this hearing you (the tenant) present your case first. You may testify and offer witnesses who will testify on your behalf.

Tenant’s Testimony

The tenant’s testimony should describe in detail the defective conditions in the apartment, such as a non-working toilet, no heat, cockroaches or other serious problems that make it impossible to live safely or comfortably in the apartment. It should also give the court the following information:

• You (the tenant) notified the landlord about the conditions in the apartment that need to be repaired.
  
  
• You gave the landlord a reasonable time to fix the conditions.
  
  
• Those defective conditions affected your ability to live in the apartment.
  
  
• The landlord did not fix the defective conditions.

The Testimony of Other Witnesses

It is important that you speak to all of the witnesses who testify on your behalf before you go to court in order to determine what they will have to say and whether their testimony will help your case. You should also tell the judge at the beginning of the hearing, how many witnesses you will be presenting before you begin to testify. If you have other witnesses besides yourself who will testify, the judge may ask them to stay outside of the courtroom when you are testifying so that they do not just repeat your testimony.

When a witness is called to testify about the same facts as the main witness, the testimony of that witness is called corroborating testimony. Corroborating testimony supports what you have already said and makes you seem more believable. A person who gives corroborating testimony is called a corroborating witness.

Written Documents

You can also prove your case by offering copies of reports or letters or other types of written documents from code enforcement officials, health inspectors or exterminators. These documents often contain a description of the conditions in the apartment.

The court will not consider reports or letters or other written documents as evidence unless the inspector or exterminator or person who prepared the report actually testifies about the report. The purpose of this requirement is to establish that the reports are reliable. To certify that the report is reliable enough to be received by the court as evidence you must ask the witness questions that allow you to show the court that:

• The report is relevant to the issues in this case. (It describes the conditions in the apartment)
  
  
• The report was prepared by a person with knowledge of the facts contained in the report.
  
  
• The report was made at or near the time of the inspection of the apartment.
  
  
• The report was made as a part of the regular business practice of the code enforcement agency, health department or extermination business.
  
  
• The report is the type of record that code inspection or the health department or the exterminator keeps as a part of its regularly conducted business.

Note: If the housing inspector or other official will not voluntarily come to court you will have to serve the head of the housing inspection department with a subpoena. There are special rules for how to get a subpoena to a witness.

View more information about how to get a subpoena to a witness.

Photographs or Video Tapes

You may also want to present photographs of the defective or bad conditions, if there are photographs available. In order to have the judge consider photographs or videotapes as evidence, you (or another witness, if another person is familiar with the pictures) must be able to tell the court.

1. When the picture(s) were taken.
2. Who took them, and
3. That the picture(s) are a fair and accurate representation of the conditions in the apartment at the time that they were taken.

Landlord’s Cross Examination of Witnesses

After you and your other witnesses have testified, the landlord will have a right to cross examine you and the other witnesses about what you have said. The purpose of the landlord’s cross examination questions is to try to point out the weaknesses in your testimony and the weaknesses in the testimony of your other witnesses. It is important that you listen carefully, answer only the questions asked and do not offer any additional information.

Presentation of Landlord’s Case

When you the tenant have finished presenting your case, the court will ask you if you have any other witnesses or evidence to present. If you have not requested that the items that you presented be moved into evidence you should do that now.

When you have “rested” (finished the presentation of your case) the landlord will present his or her case. The landlord will testify and present witnesses who will testify on his or her behalf. After the landlord or another witness has testified you will have a right to cross examine the landlord and the other witnesses about what they have said. It is important that you listen carefully to the answers that the witnesses give in order to develop your own cross examination questions. The purpose of your cross examination questions is to point out the weaknesses in the testimony of the landlord and his or her witnesses.

The landlord can also present evidence such as documents or letters to try to prove his/her case. You are entitled to look at the documents to make sure that they are what the landlord says they are. The landlord must follow the same rules that you had to follow in order to convince the court to accept documents or letters as evidence. You may ask the witness about who wrote the document or letter or how the document or letter was prepared.

The Judge’s Decision

After the hearing is concluded, the judge can order a rent abatement or reduction in rent for the months that you withheld the rent. A rent abatement order may give you several types of relief including but not limited to the following:

• A direction that the rent should be lowered for the months in which you withheld your rent,
  
  
• A list of all of the repairs that the landlord must make and directing that you are permitted to pay the lower rent in the future until the landlord makes all of those repairs,
  
  
• A direction that the rent be reduced to nothing and a statement that you do not have to pay rent until the landlord takes care of the problems. 
  
  Note: The amount that the judge lowers the rent depends on how bad the judge finds the conditions to be. Be aware that it is possible that the judge could decide that the conditions are not bad enough to justify allowing you to withhold all the rent money and may require that all the rent money deposited with the court be turned over to the landlord.

Settling Your Case Without a Hearing

Sometimes you will be able to settle your case even before you appear in court. Even if you do this, it is still important that you show up on the date of the hearing. You must appear in court to make certain that the landlord tells the judge that the case has been settled and asks that the case be dismissed.

If you do settle the case with the landlord without a hearing you will need to sign a Settlement Agreement. That agreement must:

1. Be in writing,
2. Be signed by all parties; (both you and the landlord) and 
3. Be presented to the judge for approval.

Note: If the settlement requires you, the tenant to leave the apartment it must be reviewed by the judge in person in open court.

All other settlements which allow the tenant to remain in the apartment can be reviewed by the judge at a later time.

Enforcing the Rent Abatement Order

If the landlord does not make the repairs that he is ordered to make (or that he has agreed to make if he has signed a settlement agreement) you can sue to enforce the agreement. This can be a difficult thing to do without an attorney. For that reason you should call the Legal Services of New Jersey statewide hotline for advice and information and perhaps a referral to an attorney who may be able to help you with this problem. (1-888-576-5529)