Healthy at Home: What Tenants Should Do When Their Housing is No Longer Habitable
August 28, 2024
Authored by: Nina DePalma
This article is made possible by the generous support from Taylor Tobey and Sarah Brodsky at 9Sail.
Nina DePalma
Healthy at Home: What Tenants Should Do When Their Housing is No Longer Habitable
Many tenants we speak with at Volunteer Lawyers for Justice (VLJ), and many tenants across New Jersey, struggle with poor conditions in their rental units, creating stressful, frustrating, and at times, dangerous living situations. These issues range from infestations to mold, leaks to nonfunctioning appliances, broken locks, lack of heat, and more. It often feels like complaints or requests for repairs are not heard and issues remain unrepaired. If this sounds familiar to you or a friend or family member, please read on to learn what steps you should take as a tenant in New Jersey and what your rights are when it comes to “habitability.”
Understanding Habitability Issues in New Jersey
In New Jersey, landlords are required to maintain rental units so they are in safe and decent shape for people to be residing there. This is referred to as “the warranty of habitability” and landlords are all bound to this, whether you have a written lease or not. When a landlord breaches, or violates the warranty of habitability, it means they have failed to maintain something in the rental unit that would make the unit safe or decent for tenants to live there.
Not every issue in a rental unit will rise to the level of a breach of the warranty of habitability. The most common example of this is cosmetic issues. If a carpet is stained or a non-vital appliance isn’t working, like a doorbell for example, these are not things the landlord is required to repair, because the rental unit is still safe to reside in.
What Housing Conditions Are Considered Uninhabitable?
Issues that do count as a breach include lack of heat or hot water, infestations, lead poisoning, or broken vital facilities, such as a toilet, locks on doors, or lack of electricity. Infestations can include bedbugs, cockroaches, ants, mice, rats, or any other unwanted pests. For heat, between October 1 and May 1, landlords are required by state law to provide enough heat to a unit so that the temperature is at minimum of 68 degrees between the hours of 6:00 AM to 11:00 PM, and a minimum of 65 degrees from 11:00 PM to 6:00 AM. Air conditioning can be tricky, because in general, landlords are not required to provide air conditioning. However, if you had functioning air conditioning in your apartment and it stopped working, your landlord would be required to repair this.
Habitability issues can also be violations of state or local codes. When dealing with habitability issues, many tenants will request inspections from their city or town code enforcement offices. For buildings with three or more units, the New Jersey Department of Community Affairs will do inspections as well. Any violations of these codes will be noted in reports, which tenants can access by requesting them by using their city or town Open Public Records Act (OPRA) request form or by finding them on DCA’s website.
What Are Your Rights as a Tenant?
All tenants in New Jersey are entitled to safe and decent housing. This is true regardless of whether you have a formal written lease or simply a verbal agreement with your landlord. This is also something that New Jersey landlords cannot waive, meaning they cannot state in the lease that they are not responsible for making repairs.
If your landlord has breached the warranty of habitability, you have options as a tenant. The two main options that tenants use are repair and deduct and withholding of rent. As long as you are encountering an issue that is an actual breach of the warranty of habitability and you did not cause the issue, you are legally entitled to do both of these things after giving your landlord notice of the issues. We’ll discuss them in the next section.
What to Do if Your Housing is No Longer Habitable
Whenever there is a habitability issue that is impacting the safety and decency of the rental unit, tenants should take the following steps.
The first thing to do is put your landlord on notice of the issues in writing. This can be done via text, email, through your online portal (if you have one), but we always suggest doing this via a formal written letter that you mail to your landlord with tracking information so you can be sure about when the landlord receives the notice. You should include your information, like your name and your address, and explain the issues in your apartment in detail. It can also be helpful to include photos if you have them. After you have described all of the issues in your unit, you should then demand your landlord makes repairs by a certain date. The law in New Jersey does not specify how much time to give exactly, but it must be a reasonable amount of time.
Once you specify the date you expect repairs to be made by, you should tell the landlord what you are planning to do in the case repairs have not been made by that date. You have two options for your next step, you can either repair and deduct or withhold rent.
Repair and Deduct
Repair and deduct is a helpful option if the repair you need is small or relatively inexpensive in comparison to your rent. For example, if the handle is broken on your toilet. You may purchase a new handle, have a professional install the new handle, and pay for this out of pocket. Make sure you keep all receipts, and when it is time to pay the next month’s rent, you would deduct the amount you paid from your rent and attach the receipts. For example, if your rent is $1,500 and it costs you $20 for the handle and $150 for the repair, you would pay the landlord $1,330 and attach the receipts as proof of what you paid. This is a helpful option, but for a lot of tenants, the issues in their apartment would cost far more than the rent to repair. This brings us to option 2, withholding.
Withholding
Withholding of rent is your second option and is exactly what it sounds like! You would be withholding the entirety of your rent payment until repairs are made. Withholding rent is a powerful tool, but it comes with risk as well. If you choose to withhold your rent after giving notice of the issues in your rental, you need to save ALL of the rent you withhold (every single dollar!). The landlord will file an eviction case based on nonpayment of rent, and in order to establish the defense of habitability, you will need to deposit the entire amount that is due and owed to the court on your trial date. If your rent is $1,500 and you begin withholding rent in May and you get a trial date in August, you would be required to deposit the full $6,000 to the court. If you do not have every dollar of the rent you withheld, the court will enter a judgment of possession against you for nonpayment of rent, meaning you will face the possibility of being evicted.
If you have all of the rent to deposit to the court, the court will schedule a “Marini” or habitability hearing. You would have to produce evidence of the conditions in your apartment at this hearing, such as the notice you gave the landlord, photographs of the issues, inspection reports, and any other proof you have. The court can make decisions about whether you should get an “abatement” or essentially a discount on your rent for the months you were dealing with the issues in your apartment, and they can also order the landlord to make repairs.
It may also be helpful when you begin to experience habitability issues to request an inspection of your rental unit. To do this, you should contact your town/city/municipality’s office of code enforcement, give them your information and address, and request an inspection. Once the inspection is completed, you should ask for copies of the report(s). You can also obtain copies of these reports by submitting an OPRA request to your town/city/municipality.
How VLJ Can Help New Jersey Tenants
If you are facing an eviction action and dealing with unsafe conditions in your apartment, please contact VLJ’s tenancy team and apply for services. VLJ holds a weekly virtual tenant advisory clinic on Wednesdays for Essex County tenants facing eviction; use this link to register. VLJ also has a tenancy hotline that is open on Mondays and Tuesdays between 10:00 AM - 12:30 PM and 1:30 - 4:00 PM Eastern; the phone number for the hotline is (973) 943-4754. You can find more information on applying for civil legal help on our website here.
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