Written by attorney Thomas J Major

Storm Damage & Tenants' Right: New Jersey Tenants Are Protected by the Warranty of Habitability


In the wake of Hurricane Sandy, landlords and tenants should understand their rights and obligations concerning damaged apartments. Many apartments across the state are flooded and damaged. Flooding and other damage poses a difficult problem for landlords and tenants. New Jersey tenants are protected from certain defects and conditions in an apartment under the warranty (think of it as a promise) of habitability. The New Jersey Supreme Court developed the doctrine of the warranty of habitability through a series of cases in the early 1970s. One of these foundational cases is Marini v. Ireland, 56 N.J. 130 (1970). Marini explained that in all tenancies a landlord promises to provide habitable/livable spaces. When the warranty of habitability is violated, tenants' have a variety of remedies to pursue. This guide outlines the rights and obligations under the warranty of habitability and remedies when that warranty is breached.


Marini describes a landlord's warranty as existing in two components. The first part is that at the start of a lease there are no latent defects "vital to the use of the premises for residential purposes because of faulty original construction or deterioration from normal age or normal usage." Essentially, a landlord promises a tenant that there is no hidden problem or impending problem that would make the apartment unlivable. These problems usually include hot water defects, issues with the heat, plumbing, etc. The bottom line is that when a landlord rents a space to a tenant, that space must be free from problems that would deprive the tenant of essential living components.

In the context of storm damage, the second component is more important. The warranty of habitability also requires landlords to maintain all those vital facilities in a condition which "renders the property livable." This duty is ongoing. Accordingly, under Marini, a landlord must repair or otherwise ensure that all problems which affect the livability of an apartment are fixed.

In the context of storm damage, problems that tend to affect the livability of an apartment include cleaning or removing flooded carpets, clearing flood damage, cleaning/preventing the growth of mold, shattered windows, and ongoing leaks. Fixing problems like these fits into a landlord's ongoing obligation to provide tenant a livable apartment. If the problems continue or get worse, a landlord may have breached the warranty of habitability, thereby triggering a range of tenant remedies.


Before describing the remedies available under the habitability cases, tenants should understand what factors courts may use to determine if a problem with an apartment affects the habitability. The New Jersey Supreme Court, in Berzito v. Gambino, 63 N.J. 460 (1973), listed some of the factors courts can consider.

  1. Has there been a violation of any applicable housing code or building or sanitary regulations?

  2. Is the nature of the deficiency or defect such as to affect a vital facility?

  3. What is its potential or actual effect upon safety and sanitation?

  4. For what length of time has it persisted?

  5. What is the age of the structure?

  6. What is the amount of the rent?

  7. Can the tenant be said to have waived the defect or be estopped to complain?

  8. Was the tenant in any way responsible for the defective condition?

The eight factors listed above are not exclusive. In fact, courts are free to evaluate all of the facts in a case in order to arrive at a result that is "just and fair to the landlord as well as the tenant." Only if a defect or problem goes to the livability will a tenant’s remedy be triggered. It’s important to keep this in mind before choosing any remedy.

The most extreme option, only applicable in certain fact specific situations, is to declare a constructive eviction and vacate the apartment. The New Jersey Supreme Court explained the doctrine of constructive eviction in Reste Realty Co. v. Cooper, 53 N.J. 444 (1969). Reste sets forth the circumstances that give rise to a constructive eviction as:

“…any actor omissionof the landlord or of anyone who acts under authority or legal right from the landlord, or of someone having superior title to that of the landlord, which renders the premisessubstantially unsuitablefor the purpose for which they are leased, or which seriously interferes with the beneficial enjoyment of the premises…" (Emphasis added)

Essentially, the doctrine requires that have an affirmative duty to act and to refrain from acts that would cause the premises to be unlivable. In the context of storm damage, landlords have an obligation to ensure that the property is suitable for living. This means that if the property is damaged, it must be repaired. Failing to repair the property can be an omission which would ultimately render the property uninhabitable.

Constructive eviction (and all habitability defenses) should only be invoked when the failure to make repairs directly affects the livability in the apartment. Conditions that affect livability generally include running water, heat, shelter from the elements and the availability of utilities (the utilities must be available, not necessarily free). If a hurricane, storm or other natural disaster affects one of those conditions and goes unrepaired, a constructive eviction can be declared.

After the right to declare a constructive eviction exists, the tenant must vacate the property within a reasonable amount of time. How long the tenant has to vacate is highly fact specific and almost turns entirely on the circumstances. One general principle should be followed: If a tenant tells a landlord that an apartment is totally unlivable, remaining in the unlivable apartment for a length of time does nothing to help the tenant’s case.

Invoking the doctrine of constructive eviction is not without risk. If a tenant declares constructive eviction and vacates, there is always a chance that the tenant will be held liable for the balance of rent payments on the lease. If a landlord disagrees with the tenant’s assertion that the apartment is unlivable, he/she can sue the tenant for the collection of the money owed under the lease. For this reason, the decision to vacate should not be taken lightly.

A less drastic remedy is commonly referred to as “repair and deduct." Repair and deduct stems from Marini. When a landlord fails to make repairs that are “necessary to maintain the premises in a livable condition" the tenant can make the repairs and deduct the cost from future rent. Tenants should maintain good records before deducting costs. If the landlord sues for unpaid rent, the tenant must be able to show how much was deducted and for what purpose; third party invoices are usually best.

Before a tenant can pursue the remedy of repair and deduct, the tenant must provide “timely and adequate notice" to the landlord. It is important that the notice be specific and detailed so that is fairly appraises the landlord of the condition to the remedied. Although the notice is not required in every circumstance, the best course of action is to provide it.

Finally, a tenant can raise the landlord’s failure to make repairs as a defense in an eviction for nonpayment of rent case. The remedy in this case, is not the accomplishment of repairs, rather the abatement (a proportional reduction) of rent until the repairs are made. This remedy comes from Berzito. Under Berzito, when a landlord attempts to evict a tenant for failure to pay rent, the tenant may ask the court for an abatement of the rent owed while the need for repairs exists. The tenant must show that there is a need for repairs and explain the amount of the deduction he/she is seeking. If the tenant prevails, the rent will be reduced retroactively and going forward until repairs are made.

Although tenants have powerful remedies when the warranty of habitability is breached, it is important to keep in mind that most disputes can be resolved amicably. Many times a reasonable conversation between a landlord and a tenant can iron out problems without the need for litigation. If an agreement can’t be reached, tenants should know that they have options.New Jersey landlord-tenant law provides tenants valuable tools for ensuring that landlords maintain habitable apartments.

Since the facts of each circumstance vary, a landlord or tenant should consult an attorney with his/her specific circumstances. The Major Law Firm practices landlord tenant law throughoutNew YorkandNew Jerseyassisting tenants in avoiding unnecessary and costly delays. The firm's geographic practice area includes:New York City (Manhattan,New York County, Brooklyn, Kings County, Queens, Queens County, Bronx County, Staten Island, Richmond County) and New Jersey(Jersey City, Hoboken, Bayonne, Hudson County, Newark, Essex County, Woodbridge, Middlesex County, Paterson, Passaic County).

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer