The Law Office of Michael D. Mirne Announces Information for New Jersey Landlords

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Landlords and tenants in an eviction action are often under a mistaken impression regarding the process of withholding rent when the tenant is experiencing a habitability problem. In this month’s article, we will discuss two scenarios in which tenants are permitted to withhold rent.

As a practical matter, a Court will not address a tenant’s Habitability concern absent an eviction complaint by the landlord. Therefore, tenants who want to take advantage of this remedy must first begin withholding their rent.

Landlords and tenants in an eviction action are often under a mistaken impression regarding the process of withholding rent when the tenant is experiencing a habitability problem. In this month’s article, we will discuss two scenarios in which tenants are permitted to withhold rent.

Method I – Repairing and Deducting
The matter of Marini v. Ireland involved a tenant whose toilet broke. When the tenant complained to the landlord that the toilet was no longer working, the landlord refused to fix it. The tenant then hired a plumber to fix the toilet, and he deducted the plumber’s bill from his rent. The landlord filed an eviction action based upon the unpaid portion of the rent. The Court ruled in favor of the tenant, stating that under some conditions, it may be acceptable for the tenant to make deductions from rent to make necessary repairs. Tenants electing to use this remedy should be forewarned, however, that it should only be used for vital repairs and the landlord must be given an opportunity to have the repair made before the tenant does so on behalf of the landlord.

Method II – Withholding All Rent and Requesting a Hearing
For many tenants, whose habitability problems are too expensive to resolve, the remedy of deducting and repairing is not a viable option. Therefore, the process of withholding all rents and requesting a Habitability Hearing has become much more common. While the process of withholding rent has its origins in the matter of Berzito v. Gambino, the Habitability Hearing that follows is generally referred to as a Marini Hearing.

As a practical matter, a Court will not address a tenant’s Habitability concern absent an eviction complaint by the landlord. Therefore, tenants who want to take advantage of this remedy must first begin withholding their rent. Soon thereafter, the Landlord will usually start an eviction action against the tenant. On the day of Court, the tenant will need to notify the Judge or the Court staff that he is requesting a Marini Hearing. In order to protect Landlords and to prevent tenants from filing false claims to avoid paying their rents, the Courts require tenants who are requesting a Marini Hearing to first post all unpaid rents with the Court. The tenant must also file with the Court a list of all Habitability Issues that will be addressed at trial. A copy of this list must also be served upon the landlord. The Marini Hearing is generally conducted a few weeks after the original Court date. In the event that additional rent becomes due prior to the Marini Hearing, the tenant must also post that amount with the Court. Failure to do so will result in a dismissal of the Marini Hearing and a Judgment for Possession in favor of the landlord. But in cases when the tenant posts all rents that are due and owing prior to the Marini Hearing, a Judgment for possession cannot be entered against the tenant following a Marini Hearing, regardless of the result of the Marini Hearing.

A tenant who is able to prove that habitability problems exist in the rented premises can expect to have a certain percentage of the posted funds returned back to him or her. However, absent extraordinary circumstances, the amount of rent returned to the tenant by the Court following a successful Marini Hearing is generally small (usually less that 25% of the total amount of rent posted). The Landlord will then be entitled to the balance of the rents that are posted. Courts very often make the return of this amount contingent upon the landlord first remedying the defects that have been found to exist within the rented premises. Please also note that for tenants who receive Section 8 housing assistance, the percentage of the abatement is based only upon the tenant’s portion of the rent, since only the tenant’s portion is posted with the Court.

Finally, all litigants should note that the Rules of Court do not permit Counterclaims by the tenant in Tenancy proceedings. As a result, tenants cannot assert any affirmative claims against the landlord, without filing a separate action against the landlord for money damages. Within the context of a Marini Hearing, this means that only issues affecting the habitability of the premises will be addressed in the Marini Hearing. Other claims by the tenant (e.g.; personal property damage) will not be heard at the Marini Hearing. Similarly, only the time period in which the tenant has posted rents will be considered for purposes of determining the abatement. Habitability issues that were in existence prior to the months for which rent has been posted will not be considered. This is the biggest area of misunderstanding for many tenants, landlords and lawyers.

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