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 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.
HOUSING AND PROPERTY MAINTENANCE CODES
There are several codes adopted by the state or local governments that establish standards for maintaining rental property. There are trained personnel who inspect rental properties to enforce the codes and who are available to take complaints about code violations from individual tenants.
Multiple dwelling code
Landlords of buildings with three or more units must meet the standards in the New Jersey Hotel and Multiple Dwelling Health and Safety Code, or “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, or you can call the Department of Community Affairs, Bureau of Housing Inspection, in Trenton at (609) 633-6210 to purchase a copy.
Local property maintenance code
Most towns and cities also have their own housing 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 building inspector or housing inspector if you have any questions or problems, or would just like to see a copy of the local housing code.
If your lease requires the landlord to provide heat, the landlord must give you the amount of heat required by the state codes and the local town or city ordinance. Under the state housing codes, from October 1 to May 1, the landlord must provide enough heat so that the temperature in the apartment is at least 68 degrees from 6 a.m. to 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. and N.J.A.C. 5:28-1.12(m). Local health codes cover parts of the year not covered by housing codes.
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 PAINT AND 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.
Poisoning by lead paint
A person can be poisoned by eating lead or breathing lead dust. Tenants—especially children under 6—are frequently poisoned by the 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 window sills 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 6 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.
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 for low-income landlords
Legislation passed in 2004 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. (This legislation also created a fund to relocate lead-poisoned children and established a registry of lead-safe housing in the state.)
For more information about lead contamination, see Has Your Child Been Tested for Lead Poisoning?.
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
Tenants frequently complain that their landlord will not repair such things as windows, locks, toilets, faucets, and heating systems when these break from normal wear and tear. Tenants also complain that their landlords do not do routine maintenance, such as pest extermination. You have a right as a tenant to live in housing that is safe, clean, and decent. This section explains this right and the laws that place a duty upon your landlord to maintain your rental unit in good condition. This section also explains the different steps you can take to have your landlord make needed repairs and do routine maintenance.
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.
The tenant must first give the landlord proper notice stating that repairs are needed and then give the landlord a reasonable amount of time to make the repairs. The notice should be in writing and sent by certified mail, return receipt requested.
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.
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:
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.
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
Landlords need the rent money to pay bills and make a profit. Rent withholding denies the landlord this money each month. Some landlords will decide to make all of the repairs or make an agreement with tenants to make repairs in return for paying over the withheld rent and starting to pay rent again. If you reach such an agreement with your landlord, make sure that it is in writing.
Some landlords will try to scare tenants by sending letters and notices threatening eviction instead of making the repairs. If your landlord does this, you should expect that sooner or later the landlord will bring a complaint in court for your eviction for not paying rent. (See the Causes for Eviction section.)
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.
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, tenants 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.
The law also allows tenants 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.
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.
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.
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. The law requires landlords to give tenants an annual notice that tells tenants that they can make a written request to have window guards installed. This notice must also be contained in the 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. 55:13A7.13b. 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- 7.13b(2). 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.
Under rules adopted in 2006, 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.
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.