1. Wednesday, November 5 | 6:30-8:30 P.M.
Rutgers School of Law - Newark
the lgbt bar association
of greater new york
new
jersey
lgbtq pro bono
legal assistance project
kickoff training
and reception
2. New Jersey Statutes Annotated
New Jersey Rules of Court
Part VI. Rules Governing Practice in the Law Division, Special Civil Part
Rule 6:4. Proceedings Before Trial
R. 6:4-1
6:4-1. Transfer of Actions
Currentness
(a) Consolidation With Actions in Other Courts. An action pending in the Special Civil Part may be transferred to
another court for consolidation with an action pending in such other court in accordance with R. 4:38-1.
(b) Transfer When Recovery Will Exceed Monetary Limit. A plaintiff, after commencement of an action in the Special
Civil Part, but before the trial date, may apply for removal of the action to the Law Division, on the ground that it appears
likely that the recovery will exceed the Special Civil Part monetary limit by (1) filing and serving in the Special Civil Part
an affidavit or that of an authorized agent stating that the affiant believes that the amount of the claim, when established by
proof, will exceed the sum or value constituting the monetary limit of the Special Civil Part and that it is filed in good faith
and not for the purpose of delay; and (2) filing in the Law Division and serving a motion for transfer. The Law Division
shall order the transfer if it finds that there is reasonable cause to believe that the amended claim is founded on fact and that
it has reasonable chance for success upon the trial thereof.
(c) Transfer When Counterclaim Exceeds Monetary Limit. A defendant filing a counterclaim in excess of the Special
Civil Part monetary limit may apply for removal of the action to the Law Division by (1) filing and serving in the Special
Civil Part the counterclaim together with an affidavit or that of an authorized agent stating that the affiant believes that the
amount of such claim, when established by proof, will exceed the sum or value constituting the monetary limit of the
Special Civil Part and that it is filed in good faith and not for the purpose of delay; and (2) filing in the Law Division and
serving a motion for transfer. The Law Division shall order the transfer if it finds that there is reasonable cause to believe that
the counterclaim is founded on fact and that it has reasonable chance for success upon the trial thereof.
(d) Transmission of Record; Costs. Upon presentation of an order transferring an action to the Law Division, the clerk of
the Special Civil Part shall transmit the papers on file in the court, together with copies thereof, to the deputy clerk of the
Superior Court in the county of venue.
(e) Remand to Special Civil Part. Upon the settlement or dismissal of a Law Division action with which a Special Civil
Part action has been consolidated, the Law Division on its own motion or the motion of a party may remand the action for
trial in the Special Civil Part, provided, however, that no such action shall be remanded to a county other than that in which
the consolidated Law Division action would have been tried. If the plaintiff in a Special Civil Part action so transferred or
consolidated is the prevailing party, the Law Division on plaintiff’s or its own motion may remand the action to the Special
Civil Part for the county in which it was instituted for the entry of judgment and taxation of costs.
(f) Fees on Transfer to Special Civil Part. If the plaintiff in an action transferred to the Special Civil Part thereafter
prevails, $15.00 of the fee paid to the clerk of the court from which the action was transferred shall be taxed as part of the
costs whether the transfer was to the Special Civil Part of the same or another county.
1
8. New Jersey Statutes Annotated
Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)
Subtitle 6. Specific Civil Actions
Chapter 42. Landlord and Tenant; Rights and Remedies (Refs & Annos)
Article 3. Civil Action for Re-Entry (Refs & Annos)
N.J.S.A. 2A:42-10.10
2A:42-10.10. Reprisal as unlawful grounds for civil action for re-entry; action for damages or other appropriate
relief by tenant
Currentness
No landlord of premises or units to which this act is applicable shall serve a notice to quit upon any tenant or institute any
action against a tenant to recover possession of premises, whether by summary dispossess proceedings, civil action for the
possession of land, or otherwise:
a. As a reprisal for the tenant’s efforts to secure or enforce any rights under the lease or contract, or under the laws of the
State of New Jersey or its governmental subdivisions, or of the United States; or
b. As a reprisal for the tenant’s good faith complaint to a governmental authority of the landlord’s alleged violation of any
health or safety law, regulation, code or ordinance, or State law or regulation which has as its objective the regulation of
premises used for dwelling purposes; or
c. As a reprisal for the tenant’s being an organizer of, a member of, or involved in any activities of, any lawful organization;
or
d. On account of the tenant’s failure or refusal to comply with the terms of the tenancy as altered by the landlord, if the
landlord shall have altered substantially the terms of the tenancy as a reprisal for any actions of the tenant set forth in
subsection a, b, and c of section 1 of this act.1 Substantial alteration shall include the refusal to renew a lease or to continue
a tenancy of the tenant without cause.
Under subsection b of this section the tenant shall originally bring his good faith complaint to the attention of the landlord
or his agent and give the landlord a reasonable time to correct the violation before complaining to a governmental authority.
A landlord shall be subject to a civil action by the tenant for damages and other appropriate relief, including injunctive and
other equitable remedies, as may be determined by a court of competent jurisdiction in every case in which the landlord has
violated the provisions of this section.
Credits
L.1970, c. 210, § 1, eff. Sept. 30, 1970.
Notes of Decisions (29)
7
15. New Jersey Statutes Annotated
Title 46. Property (Refs & Annos)
Subtitle 2. Real Property Only (Refs & Annos)
Chapter 8. Leasehold Estates; Landlord and Tenant (Refs & Annos)
N.J.S.A. 46:8-21.1
46:8-21.1. Return of deposit; expiration of lease or displacement; resumption of occupancy; repayment of
deposit; penalty for failure to return
Effective: June 29, 2010
Currentness
Within 30 days after the termination of the tenant’s lease or licensee’s agreement, the owner or lessee shall return by personal
delivery, registered or certified mail the sum so deposited plus the tenant’s portion of the interest or earnings accumulated
thereon, less any charges expended in accordance with the terms of a contract, lease, or agreement, to the tenant or licensee,
or, in the case of a lease terminated pursuant to P.L.1971, c. 318 (C.46:8-9.1), the executor or administrator of the estate of
the tenant or licensee or the surviving spouse of the tenant or licensee so terminating the lease. The interest or earnings and
any such deductions shall be itemized and the tenant, licensee, executor, administrator or surviving spouse notified thereof
by personal delivery, registered or certified mail. Notwithstanding the provisions of this or any other section of law to the
contrary, no deductions shall be made from a security deposit of a tenant who remains in possession of the rental premises.
Within five business days after:
a. the tenant is caused to be displaced by fire, flood, condemnation, or evacuation, and
b. an authorized public official posts the premises with a notice prohibiting occupancy; or
c. any building inspector, in consultation with a relocation officer, where applicable, has certified within 48 hours that
displacement is expected to continue longer than seven days and has so notified the owner or lessee in writing, the owner or
lessee shall have available and return to the tenant or the tenant’s designated agent upon his demand the sum so deposited
plus the tenant’s portion of the interest or earnings accumulated thereon, less any charges expended in accordance with the
terms of the contract, lease or agreement and less any rent due and owing at the time of displacement.
Within 15 business days after a lease terminates as described in section 3 of P.L.2008, c. 111 (C.46:8-9.6),1
the owner or
lessee shall have available and return to the tenant or the tenant’s designated agent upon his demand any money or advance of
rent deposited as security plus the tenant’s portion of the interest or earnings accumulated thereon, including the portion of
any money or advance of rent due to a victim of domestic violence terminating a lease pursuant to section 3 of P.L.2008, c.
111 (C.46:8-9.6), less any charges expended in accordance with the terms of the contract, lease or agreement and less any rent
due and owing at the time of the lease termination.
Such net sum shall continue to be available to be returned upon demand during normal business hours for a period of 30
days at a location in the same municipality in which the subject leased property is located and shall be accompanied by an
itemized statement of the interest or earnings and any deductions. The owner or lessee may, by mutual agreement with the
municipal clerk, have the municipal clerk of the municipality in which the subject leased property is located return said net
sum in the same manner. Within three business days after receiving notification of the displacement, the owner or lessee
shall provide written notice to a displaced tenant by personal delivery or mail to the tenant’s last known address. In the event
that a lease terminates as described in section 3 of P.L.2008, c. 111 (C.46:8-9.6), within three business days after the
termination, the owner or lessee shall provide written notice to the victim of domestic violence by personal delivery or mail
to the tenant’s last known address. Such notice shall include, but not be limited to, the location at which and the hours and
14
17. New Jersey Statutes Annotated
Title 46. Property (Refs & Annos)
Subtitle 2. Real Property Only (Refs & Annos)
Chapter 8. Leasehold Estates; Landlord and Tenant (Refs & Annos)
N.J.S.A. 46:8-19
46:8-19. Deposit to secure performance of lease; investment of deposit; interest rights; notice requirements;
failure to provide notice
Effective: January 1, 2004
Currentness
Whenever money or other form of security shall be deposited or advanced on a contract, lease or license agreement for the use
or rental of real property as security for performance of the contract, lease or agreement or to be applied to payments upon
such contract, lease or agreement when due, such money or other form of security, until repaid or so applied including the
tenant’s portion of the interest or earnings accumulated thereon as hereinafter provided, shall continue to be the property of
the person making such deposit or advance and shall be held in trust by the person with whom such deposit or advance shall
be made for the use in accordance with the terms of the contract, lease or agreement and shall not be mingled with the
personal property or become an asset of the person receiving the same.
The person receiving money so deposited or advanced shall:
a. (1) Invest that money in shares of an insured money market fund established by an investment company based in this
State and registered under the “Investment Company Act of 1940,” 54 Stat. 789 (15 U.S.C.s.80a-1 et seq.) whose shares are
registered under the “Securities Act of 1933,” 48 Stat. 74 (15 U.S.C.s.77a. et seq.) and the only investments of which fund
are instruments maturing in one year or less, or (2) deposit that money in a State or federally chartered bank, savings bank or
savings and loan association in this State insured by an agency of the federal government in an account bearing a variable rate
of interest, which shall be established at least quarterly, which is similar to the average rate of interest on active interest-
bearing money market transaction accounts paid by the bank or association , or equal to similar accounts of an investment
company described in paragraph (1) of this subsection.
This subsection shall not apply to persons receiving money for less than 10 rental units except where required by the
Commissioner of Banking and Insurance by rule or regulation. The commissioner shall apply the provisions of this
subsection to some or all persons receiving money for less than 10 rental units where the commissioner finds that it is
practicable to deposit or invest the money received with an investment company or State or federally chartered bank, savings
bank or savings and loan association in accordance with this subsection. Except as expressly provided herein, nothing in this
subsection shall affect or modify the rights or obligations of persons receiving money for rental premises or units, tenants,
licensees or contractees under any other law.
b. Persons not required to invest or deposit money in accordance with subsection a. of this section shall deposit such money
in a State or federally chartered bank, savings bank or savings and loan association in this State insured by an agency of the
federal government in an account bearing interest at the rate currently paid by such institutions and associations on time or
savings deposits.
c. The person investing the security deposit pursuant to subsection a. or b. of this section shall notify in writing each of the
persons making such security deposit or advance, giving the name and address of the investment company, State or federally
chartered bank, savings bank or savings and loan association in which the deposit or investment of security money is made,
the type of account in which the security deposit is deposited or invested, the current rate of interest for that account, and the
amount of such deposit or investment, in accordance with the following:
16
18. (1) within 30 days of the receipt of the security deposit from the tenant;
(2) within 30 days of moving the deposit from one depository institution or fund to another, except in the case of a merger
of institutions or funds, then within 30 days of the date the person investing the security deposit receives notice of that
merger, or from one account to another account, if the change in the account or institution occurs more than 60 days prior to
the annual interest payment;
(3) within 30 days after the effective date of P.L.2003, c. 188 (C.46: 8-21.4 et al.);
(4) at the time of each annual interest payment; and
(5) within 30 days after the transfer or conveyance of ownership or control of the property pursuant to section 2 of P.L.1967,
c. 265 (C.46:8-20).
All of the money so deposited or advanced may be deposited or invested by the person receiving the same in one interest-
bearing or dividend yielding account as long as he complies with all the other requirements of this act.
The interest or earnings paid thereon by the investment company, State or federally chartered bank, savings bank or savings
and loan association, shall belong to the person making the deposit or advance and shall be paid to the tenant in cash, or be
credited toward the payment of rent due on the renewal or anniversary of said tenant’s lease or on January 31, if the tenant
has been given written notice after the effective date of P.L.2003, c. 188 and before the next anniversary of the tenant’s lease,
that subsequent interest payments will be made on January 31 of each year.
If the person receiving a security deposit fails to invest or deposit the security money in the manner required under this
section or to provide the notice or pay the interest to the tenant as required under this subsection, the tenant may give written
notice to that person that such security money plus an amount representing interest at the rate of seven percent per annum be
applied on account of rent payment or payments due or to become due from the tenant, and thereafter the tenant shall be
without obligation to make any further security deposit and the person receiving the money so deposited shall not be entitled
to make further demand for a security deposit. However, in the case of a failure by the person receiving the security deposit
to pay the annual interest or to provide the annual notice at the time of the annual interest payment, if the annual notice is
not also serving as a notice of change of account or institution, before the tenant may apply the security deposit plus interest
on account of the rent payment or payments due or to become due on the part of the tenant, the tenant shall first give that
person a written notice of his failure and shall allow that person 30 days from the mailing date or hand delivery of this notice
to comply with the annual interest payment or annual notice, or both.
d. The provisions of this section requiring that the security advanced be deposited or invested in a money market fund, or in
an interest bearing account in a State or federally chartered bank, savings bank or savings and loan association shall not apply
to any security advanced on a contract, lease or license agreement for the seasonal use or rental of real property. For purposes
of this paragraph “seasonal use or rental” means use or rental for a term of not more than 125 consecutive days for residential
purposes by a person having a permanent place of residence elsewhere. “Seasonal use or rental” does not mean use or rental of
living quarters for seasonal, temporary or migrant farm workers in connection with any work or place where work is being
performed. The landlord shall have the burden of proving that the use or rental of the residential property is seasonal.
Credits
L.1967, c. 265, § 1, eff. Jan. 1, 1968. Amended by L.1971, c. 223, § 1, eff. June 21, 1971; L.1973, c. 195, § 1, eff. July 3,
17
19. 1973; L.1979, c. 28, § 1, eff. Feb. 22, 1979; L.1985, c. 42, § 1, eff. Aug. 1, 1985; L.1990, c. 100, § 1, eff. Oct. 18, 1990;
L.1997, c. 310, § 1, eff. Jan. 8, 1998; L.2003, c. 188, § 1, eff. Jan. 1, 2004.
Editors’ Notes
ASSEMBLY CONSUMER AFFAIRS COMMITTEE STATEMENT
Assembly, No. 2595--L.1990, c. 100
The Assembly Consumer Affairs Committee favorably reports Assembly Bill No. 2595 with committee
amendments.
Assembly Bill No. 2595 amends section 1 of P.L.1967, c. 265 (C. 46:8-19) to exempt landlords of seasonal
rentals from the current statutory requirement that they deposit each tenant’s security deposit in an interest bearing
account.
Under current law, every landlord, except the landlords of owner-occupied properties having two or less rental units
where the tenant has failed to give the landlord a 30 day notice invoking the provisions of this security deposit
law, is required to deposit each tenant’s security deposit in an interest bearing account.
This bill, as amended by the committee, exempts the landlords of seasonal rental properties from that requirement.
For the purposes of this exemption, the bill defines “seasonal use or rental” as the use or rental of a unit for
residential purposes for a term of not more than 60 consecutive days by a person having a permanent place of
residence elsewhere. Specifically excluded from that exemption, however, are the rentals of living quarters by
seasonal, temporary or migrant farm workers. Landlords renting living quarters to such workers would continue to
be required to deposit their security deposits in interest bearing accounts.
The committee amended the bill to change the definition of “seasonal rental or use,” reducing the required term of
the rental in order to qualify for the exemption from 110 consecutive days to 60 consecutive days. In discussing
the bill, the committee concurred with the sponsor’s primary objective of relieving the landlords of seasonal
properties of the administrative headache of attempting to deposit the security deposits of short-term renters in
interest bearing accounts. The committee also understood that the service fees charged by institutions holding such
short-term deposits, in many instances, exceed the amount of interest generated by the deposit. The committee did
believe, however, that in those instances involving leases of 60 or more days, the current requirement that the
landlord deposit a renter’s security deposit in an interest bearing account imposed no undue administrative burden
on the landlord. The committee further believed that the security deposits of renters entering into seasonal leases of
more than 60 days would generate noticeable interest and that those individuals deserved to be paid that interest.
A spokesperson for the New Jersey Tenants’ Organization opposed the bill in concept, arguing that all renters are
entitled to the interest generated from their security deposits.
The committee also adopted technical amendments to the bill.
This bill was prefiled for introduction in the 1990 session pending technical review. As reported, the bill includes
the changes required by technical review which has been performed.
GOVERNOR’S RECONSIDERATION AND RECOMMENDATION STATEMENT
Assembly, No. 1245--L.1985, c. 42
To the General Assembly:
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22. New Jersey Statutes Annotated
Title 46. Property (Refs & Annos)
Subtitle 2. Real Property Only (Refs & Annos)
Chapter 8. Leasehold Estates; Landlord and Tenant (Refs & Annos)
N.J.S.A. 46:8-28
46:8-28. Certificate of registration; filing; contents
Effective: September 1, 2003
Currentness
Every landlord shall, within 30 days following the effective date of this act, or at the time of the creation of the first tenancy
in any newly constructed or reconstructed building, file with the clerk of the municipality, or with such other municipal
official as is designated by the clerk, in which the residential property is situated, in the case of a one-dwelling unit rental or
a two-dwelling unit non-owner occupied premises, or with the Bureau of Housing Inspection in the Department of
Community Affairs in the case of a multiple dwelling as defined in section 3 of the “Hotel and Multiple Dwelling Law” (C.
55:13A-3), a certificate of registration on forms prescribed by the Commissioner of Community Affairs, which shall contain
the following information:
a. The name and address of the record owner or owners of the premises and the record owner or owners of the rental business
if not the same persons. In the case of a partnership the names of all general partners shall be provided;
b. If the record owner is a corporation, the name and address of the registered agent and corporate officers of said corporation;
c. If the address of any record owner is not located in the county in which the premises are located, the name and address of a
person who resides in the county in which the premises are located and is authorized to accept notices from a tenant and to
issue receipts therefor and to accept service of process on behalf of the record owner;
d. The name and address of the managing agent of the premises, if any;
e. The name and address, including the dwelling unit, apartment or room number of the superintendent, janitor, custodian or
other individual employed by the record owner or managing agent to provide regular maintenance service, if any;
f. The name, address and telephone number of an individual representative of the record owner or managing agent who may
be reached or contacted at any time in the event of an emergency affecting the premises or any unit of dwelling space therein,
including such emergencies as the failure of any essential service or system, and who has the authority to make emergency
decisions concerning the building and any repair thereto or expenditure in connection therewith and shall, at all times, have
access to a current list of building tenants that shall be made available to emergency personnel as required in the event of an
emergency;
g. The name and address of every holder of a recorded mortgage on the premises;
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24. New Jersey Statutes Annotated
Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)
Subtitle 4. Civil Actions
Chapter 18. Civil Actions in County District Courts (Refs & Annos)
Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)
C. Residential Tenants
N.J.S.A. 2A:18-61.3
2A:18-61.3. Residential lease; eviction or failure to renew by landlord or by owner’s or landlord’s successor in
ownership or possession; necessity for good cause or other grounds
Currentness
a. No landlord may evict or fail to renew any lease of any premises covered by section 2 of this act1 except for good cause as
defined in section 2.
b. A person who was a tenant of a landlord in premises covered by section 2 of P.L.1974, c. 49 (C.2A:18-61.1) may not be
removed by any order or judgment for possession from the premises by the owner’s or landlord’s successor in ownership or
possession except:
(1) For good cause in accordance with the requirements which apply to premises covered pursuant to P.L.1974, c. 49 (C.2A:
18-61.1 et al.); or
(2) For proceedings in premises where federal law supersedes applicable State law governing removal of occupants; or
(3) For proceedings where removal of occupants is sought by an authorized State or local agency pursuant to eminent domain
or code or zoning enforcement laws and which comply with applicable relocation laws pursuant to the “Relocation Assistance
Law of 1967,” P.L.1967, c. 79 (C.52:31B-1 et seq.), the “Relocation Assistance Act,” P.L.1971, c. 362 (C.20:4-1 et seq.)
or section 3 of P.L.1993, c. 342 (C.2A:18-61.1g).
Where the owner’s or landlord’s successor in ownership or possession is not bound by the lease entered into with the former
tenant and may offer a different lease to the former tenant, nothing in P.L.1986, c. 138 shall limit that right.
Credits
L.1974, c. 49, § 4, eff. June 25, 1974. Amended by L.1986, c. 138, § 7, eff. Oct. 29, 1986; L.1993, c. 342, § 2, eff. Dec.
27, 1993.
Notes of Decisions (4)
Footnotes
1
N.J.S.A. § 2A:18-61.1.
23
26. New Jersey Statutes Annotated
Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)
Subtitle 4. Civil Actions
Chapter 18. Civil Actions in County District Courts (Refs & Annos)
Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)
C. Residential Tenants
N.J.S.A. 2A:18-61.2
2A:18-61.2. Removal of residential tenants; required notice; contents; service
Effective: July 1, 2013
Currentness
No judgment of possession shall be entered for any premises covered by section 2 of this act,1
except in the nonpayment of
rent under subsection a. or f. of section 2, unless the landlord has made written demand and given written notice for delivery
of possession of the premises. The following notice shall be required:
a. For an action alleging disorderly conduct under subsection b. of section 2, or injury to the premises under subsection c. of
section 2, or any grounds under subsection m., n., o. , p., q., or r. of section 2, three days’ notice prior to the institution of
the action for possession;
b. For an action alleging continued violation of rules and regulations under subsection d. of section 2, or substantial breach
of covenant under subsection e. of section 2, or habitual failure to pay rent, one month’s notice prior to the institution of the
action for possession;
c. For an action alleging any grounds under subsection g. of section 2, three months’ notice prior to the institution of the
action;
d. For an action alleging permanent retirement under subsection h. of section 2, 18 months’ notice prior to the institution of
the action and, provided that, where there is a lease in effect, no action may be instituted until the lease expires;
e. For an action alleging refusal of acceptance of reasonable lease changes under subsection i. of section 2, one month’s
notice prior to institution of action;
f. For an action alleging any grounds under subsection l. of section 2, two months’ notice prior to the institution of the
action and, provided that where there is a written lease in effect no action shall be instituted until the lease expires;
g. For an action alleging any grounds under subsection k. of section 2, three years’ notice prior to the institution of action,
and provided that where there is a written lease in effect, no action shall be instituted until the lease expires;
h. In public housing under the control of a public housing authority or redevelopment agency, for an action alleging
substantial breach of contract under paragraph (2) of subsection e. of section 2, the period of notice required prior to the
25
28. New Jersey Statutes Annotated
Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)
Subtitle 4. Civil Actions
Chapter 18. Civil Actions in County District Courts (Refs & Annos)
Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)
C. Residential Tenants
N.J.S.A. 2A:18-61.1
2A:18-61.1. Removal of residential tenants; grounds
Effective: July 1, 2013
Currentness
No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the
Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential
purposes, other than (1) owner-occupied premises with not more than two rental units or a hotel, motel or other guest house
or part thereof rented to a transient guest or seasonal tenant; (2) a dwelling unit which is held in trust on behalf of a member
of the immediate family of the person or persons establishing the trust, provided that the member of the immediate family
on whose behalf the trust is established permanently occupies the unit; and (3) a dwelling unit which is permanently
occupied by a member of the immediate family of the owner of that unit, provided, however, that exception (2) or (3) shall
apply only in cases in which the member of the immediate family has a developmental disability, except upon establishment
of one of the following grounds as good cause:
a. The person fails to pay rent due and owing under the lease whether the same be oral or written; provided that, for the
purposes of this section, any portion of rent unpaid by a tenant to a landlord but utilized by the tenant to continue utility
service to the rental premises after receiving notice from an electric, gas, water or sewer public utility that such service was in
danger of discontinuance based on nonpayment by the landlord, shall not be deemed to be unpaid rent.
b. The person has continued to be, after written notice to cease, so disorderly as to destroy the peace and quiet of the
occupants or other tenants living in said house or neighborhood.
c. The person has willfully or by reason of gross negligence caused or allowed destruction, damage or injury to the premises.
d. The person has continued, after written notice to cease, to substantially violate or breach any of the landlord’s rules and
regulations governing said premises, provided such rules and regulations are reasonable and have been accepted in writing by
the tenant or made a part of the lease at the beginning of the lease term.
e. (1) The person has continued, after written notice to cease, to substantially violate or breach any of the covenants or
agreements contained in the lease for the premises where a right of reentry is reserved to the landlord in the lease for a
violation of such covenant or agreement, provided that such covenant or agreement is reasonable and was contained in the
lease at the beginning of the lease term.
(2) In public housing under the control of a public housing authority or redevelopment agency, the person has substantially
violated or breached any of the covenants or agreements contained in the lease for the premises pertaining to illegal uses of
controlled dangerous substances, or other illegal activities, whether or not a right of reentry is reserved to the landlord in the
27
29. lease for a violation of such covenant or agreement, provided that such covenant or agreement conforms to federal guidelines
regarding such lease provisions and was contained in the lease at the beginning of the lease term.
f. The person has failed to pay rent after a valid notice to quit and notice of increase of said rent, provided the increase in rent
is not unconscionable and complies with any and all other laws or municipal ordinances governing rent increases.
g. The landlord or owner (1) seeks to permanently board up or demolish the premises because he has been cited by local or
State housing inspectors for substantial violations affecting the health and safety of tenants and it is economically unfeasible
for the owner to eliminate the violations; (2) seeks to comply with local or State housing inspectors who have cited him for
substantial violations affecting the health and safety of tenants and it is unfeasible to so comply without removing the
tenant; simultaneously with service of notice of eviction pursuant to this clause, the landlord shall notify the Department of
Community Affairs of the intention to institute proceedings and shall provide the department with such other information as
it may require pursuant to rules and regulations. The department shall inform all parties and the court of its view with respect
to the feasibility of compliance without removal of the tenant and may in its discretion appear and present evidence; (3) seeks
to correct an illegal occupancy because he has been cited by local or State housing inspectors or zoning officers and it is
unfeasible to correct such illegal occupancy without removing the tenant; or (4) is a governmental agency which seeks to
permanently retire the premises from the rental market pursuant to a redevelopment or land clearance plan in a blighted area.
In those cases where the tenant is being removed for any reason specified in this subsection, no warrant for possession shall
be issued until P.L.1967, c. 79 (C.52:31B-1 et seq.) and P.L.1971, c. 362 (C.20:4-1 et seq.) have been complied with.
h. The owner seeks to retire permanently the residential building or the mobile home park from residential use or use as a
mobile home park, provided this subsection shall not apply to circumstances covered under subsection g. of this section.
i. The landlord or owner proposes, at the termination of a lease, reasonable changes of substance in the terms and conditions
of the lease, including specifically any change in the term thereof, which the tenant, after written notice, refuses to accept;
provided that in cases where a tenant has received a notice of termination pursuant to subsection g. of section 3 of P.L.1974,
c. 49 (C.2A:18-61.2), or has a protected tenancy status pursuant to the “Senior Citizens and Disabled Protected Tenancy
Act,” P.L.1981, c. 226 (C.2A:18-61.22 et al.), or pursuant to the “Tenant Protection Act of 1992,” P.L.1991, c. 509 (C.2A:
18-61.40 et al.), the landlord or owner shall have the burden of proving that any change in the terms and conditions of the
lease, rental or regulations both is reasonable and does not substantially reduce the rights and privileges to which the tenant
was entitled prior to the conversion.
j. The person, after written notice to cease, has habitually and without legal justification failed to pay rent which is due and
owing.
k. The landlord or owner of the building or mobile home park is converting from the rental market to a condominium,
cooperative or fee simple ownership of two or more dwelling units or park sites, except as hereinafter provided in subsection
l. of this section. Where the tenant is being removed pursuant to this subsection, no warrant for possession shall be issued
until this act has been complied with. No action for possession shall be brought pursuant to this subsection against a senior
citizen tenant or disabled tenant with protected tenancy status pursuant to the “Senior Citizens and Disabled Protected
Tenancy Act,” P.L.1981, c. 226 (C.2A:18-61.22 et al.), or against a qualified tenant under the “Tenant Protection Act of
1992,” P.L.1991, c. 509 (C.2A:18-61.40 et al.), as long as the agency has not terminated the protected tenancy status or the
protected tenancy period has not expired.
l. (1) The owner of a building or mobile home park, which is constructed as or being converted to a condominium,
cooperative or fee simple ownership, seeks to evict a tenant or sublessee whose initial tenancy began after the master deed,
agreement establishing the cooperative or subdivision plat was recorded, because the owner has contracted to sell the unit to a
buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing.
However, no action shall be brought against a tenant under paragraph (1) of this subsection unless the tenant was given a
statement in accordance with section 6 of P.L.1975, c. 311 (C.2A:18-61.9);
28
30. (2) The owner of three or less condominium or cooperative units seeks to evict a tenant whose initial tenancy began by rental
from an owner of three or less units after the master deed or agreement establishing the cooperative was recorded, because the
owner seeks to personally occupy the unit, or has contracted to sell the unit to a buyer who seeks to personally occupy it and
the contract for sale calls for the unit to be vacant at the time of closing;
(3) The owner of a building of three residential units or less seeks to personally occupy a unit, or has contracted to sell the
residential unit to a buyer who wishes to personally occupy it and the contract for sale calls for the unit to be vacant at the
time of closing.
m. The landlord or owner conditioned the tenancy upon and in consideration for the tenant’s employment by the landlord or
owner as superintendent, janitor or in some other capacity and such employment is being terminated.
n. The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an
act which if committed by an adult would constitute an offense under the “Comprehensive Drug Reform Act of 1987,”
N.J.S.2C:35-1 et al., involving the use, possession, manufacture, dispensing or distribution of a controlled dangerous
substance, controlled dangerous substance analog or drug paraphernalia within the meaning of that act within or upon the
leased premises or the building or complex of buildings and land appurtenant thereto, or the mobile home park, in which
those premises are located, and has not in connection with his sentence for that offense either (1) successfully completed or
(2) been admitted to and continued upon probation while completing, a drug rehabilitation program pursuant to N.J.S.2C:
35-14; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who has been
so convicted or has so pleaded, or otherwise permits or permitted such a person to occupy those premises for residential
purposes, whether continuously or intermittently, except that this subsection shall not apply to a person harboring or
permitting a juvenile to occupy the premises if the juvenile has been adjudicated delinquent upon the basis of an act which if
committed by an adult would constitute the offense of use or possession under the said act. No action for removal may be
brought pursuant to this subsection more than two years after the date of the adjudication or conviction or more than two
years after the person’s release from incarceration whichever is the later.
o. The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an
act which if committed by an adult would constitute an offense under N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault, or
terroristic threats against the landlord, a member of the landlord’s family or an employee of the landlord; or, being the tenant
or lessee of such leased premises, knowingly harbors or harbored therein a person who has been so convicted or has so
pleaded, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether
continuously or intermittently. No action for removal may be brought pursuant to this subsection more than two years after
the adjudication or conviction or more than two years after the person’s release from incarceration whichever is the later.
p. The person has been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this
act for an offense under N.J.S.2C:20-1 et al. involving theft of property located on the leased premises from the landlord, the
leased premises or other tenants residing in the leased premises, or N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault or
terroristic threats against the landlord, a member of the landlord’s family or an employee of the landlord, or under the
“Comprehensive Drug Reform Act of 1987,” N.J.S.2C:35-1 et al., involving the use, possession, manufacture, dispensing or
distribution of a controlled dangerous substance, controlled dangerous substance analog or drug paraphernalia within the
meaning of that act within or upon the leased premises or the building or complex of buildings and land appurtenant thereto,
or the mobile home park, in which those premises are located, and has not in connection with his sentence for that offense
either (1) successfully completed or (2) been admitted to and continued upon probation while completing a drug
rehabilitation program pursuant to N.J.S.2C:35-14; or, being the tenant or lessee of such leased premises, knowingly harbors
or harbored therein a person who committed such an offense, or otherwise permits or permitted such a person to occupy those
premises for residential purposes, whether continuously or intermittently, except that this subsection shall not apply to a
person who harbors or permits a juvenile to occupy the premises if the juvenile has been adjudicated delinquent upon the
basis of an act which if committed by an adult would constitute the offense of use or possession under the said
“Comprehensive Drug Reform Act of 1987.”
29
31. q. The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an
act which if committed by an adult would constitute an offense under N.J.S.2C:20-1 et al. involving theft of property from
the landlord, the leased premises or other tenants residing in the same building or complex; or, being the tenant or lessee of
such leased premises, knowingly harbors therein a person who has been so convicted or has so pleaded, or otherwise permits
such a person to occupy those premises for residential purposes, whether continuously or intermittently.
r. The person is found in a civil action, by a preponderance of the evidence, to have committed a violation of the human
trafficking provisions set forth in section 1 of P.L.2005, c. 77 (C.2C:13-8) within or upon the leased premises or the
building or complex of buildings and land appurtenant thereto, or the mobile home park, in which those premises are
located; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who has been
engaged in human trafficking, or otherwise permits or permitted such a person to occupy those premises for residential
purposes, whether continuously or intermittently. No action for removal may be brought pursuant to this subsection more
than two years after the alleged violation has terminated. A criminal conviction or a guilty plea to a crime of human
trafficking under section 1 of P.L.2005, c. 77 (C.2C:13-8) shall be considered prima facie evidence of civil liability under
this subsection.
For purposes of this section, (1) “developmental disability” means any disability which is defined as such pursuant to
section 3 of P.L.1977, c. 82 (C.30:6D-3); (2) “member of the immediate family” means a person’s spouse, parent, child or
sibling, or a spouse, parent, child or sibling of any of them; and (3) “permanently” occupies or occupied means that the
occupant maintains no other domicile at which the occupant votes, pays rent or property taxes or at which rent or property
taxes are paid on the occupant’s behalf.
Credits
L.1974, c. 49, § 2, eff. June 25, 1974. Amended by L.1975, c. 311, § 1, eff. Feb. 19, 1976; L.1981, c. 8, § 1, eff. Jan. 26,
1981; L.1981, c. 226, § 13, eff. July 27, 1981; L.1989, c. 294, § 1, eff. Jan. 12, 1990; L.1991, c. 91, § 68, eff. April 9,
1991; L.1991, c. 307, § 1, eff. Nov. 7, 1991; L.1991, c. 509, § 19, eff. June 1, 1992; L.1993, c. 342, § 1, eff. Dec. 27,
1993; L.1995, c. 269, § 1, eff. Dec. 8, 1995; L.1996, c. 131, § 1, eff. Dec. 5, 1996; L.1997, c. 228, § 1, eff. Dec. 1, 1997;
L.2000, c. 113, § 3, eff. Sept. 8, 2000; L.2013, c. 51, § 7, eff. July 1, 2013.
Editors’ Notes
SENATE COUNTY AND MUNICIPAL GOVERNMENT COMMITTEE STATEMENT
Assembly, No. 3251--L.1991, c. 307
The Senate County and Municipal Government Committee reports favorably Assembly Bill No. 3251 with Senate
committee amendments.
Assembly Bill No. 3251, as amended by the committee, expands the definition of who may evict under the State’s
“anti-eviction law” (P.L.1974, c. 49; C.2A:18-61.1 et al.) to address a specific situation which has arisen with
regard to developmentally disabled persons.
Section 2 of P.L.1974, c. 49 (C.2A:18-61.1) establishes the grounds for eviction and the residents of any
dwellings that are exempted from its provisions may be subject to eviction without regard for the good cause
provisions listed therein. That section of law currently exempts from its application “owner-occupied premises with
not more than two rental units.” To qualify for this exemption, however, the actual “owner” (i.e., holder of title) to
the premises must reside there.
Assembly Bill 3251 Sca extends the right of eviction to cover the following accommodations: (1) a dwelling unit
which is held in trust on behalf of a member of the immediate family of the person or persons establishing the
30
34. New Jersey Statutes Annotated
Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)
Subtitle 4. Civil Actions
Chapter 18. Civil Actions in County District Courts (Refs & Annos)
Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)
B. Summary Actions for Recovery of Premises (Refs & Annos)
N.J.S.A. 2A:18-53
2A:18-53. Removal of tenant in certain cases; jurisdiction
Currentness
Except for residential lessees and tenants included in section 2 of this act,1
any lessee or tenant at will or at sufferance, or for
a part of a year, or for one or more years, of any houses, buildings, lands or tenements, and the assigns, undertenants or legal
representatives of such tenant or lessee, may be removed from such premises by the Superior Court, Law Division, Special
Civil Part in an action in the following cases:
a. Where such person holds over and continues in possession of all or any part of the demised premises after the expiration of
his term, and after demand made and written notice given by the landlord or his agent, for delivery of possession thereof.
The notice shall be served either personally upon the tenant or such person in possession by giving him a copy thereof or by
leaving a copy of the same at his usual place of abode with a member of his family above the age of 14 years.
b. Where such person shall hold over after a default in the payment of rent, pursuant to the agreement under which the
premises are held.
c. Where such person (1) shall be so disorderly as to destroy the peace and quiet of the landlord or the other tenants or
occupants living in said house or the neighborhood, or (2) shall willfully destroy, damage or injure the premises, or (3) shall
constantly violate the landlord’s rules and regulations governing said premises, provided, such rules have been accepted in
writing by the tenant or are made a part of the lease; or (4) shall commit any breach or violation of any of the covenants or
agreements in the nature thereof contained in the lease for the premises where a right of re-entry is reserved in the lease for a
violation of such covenants or agreements, and shall hold over and continue in possession of the demised premises or any
part thereof, after the landlord or his agent for that purpose has caused a written notice of the termination of said tenancy to
be served upon said tenant, and a demand that said tenant remove from said premises within three days from the service of
such notice. The notice shall specify the cause of the termination of the tenancy, and shall be served either personally upon
the tenant or such person in possession by giving him a copy thereof, or by leaving a copy thereof at his usual place of abode
with some member of his family above the age of 14 years.
Credits
Amended by L.1966, c. 319, § 1, eff. Jan. 5, 1967; L.1974, c. 49, § 1, eff. June 25, 1974; L.1991, c. 91, § 64, eff. April 9,
1991.
Notes of Decisions (155)
Footnotes
1
N.J.S.A. § 2A:18-61.1.
33
36. 63 N.J. 460
Supreme Court of New Jersey.
Lillias BERZITO, Plaintiff-Appellant.
v.
Vincent GAMBINO, Defendant-Respondent.
Argued Feb. 21, 1973. | Decided July 26, 1973.
Action by tenant to recover portion of rent paid, wherein landlord counterclaimed for amount of rent which had been remitted
to tenant in a prior summary dispossess proceeding. The Union County District Court, 114 N.J.Super. 124, 274 A.2d 865,
entered judgment for plaintiff, and defendant appealed. The Superior Court, Appellate Division, 119 N.J.Super. 332, 291 A.
2d 577, reversed, and plaintiff appealed. The Supreme Court, Mountain, J., held that landlord’s covenant of habitability and
tenant’s covenant to pay rent will be treated as mutually dependent, set forth remedies available to landlord claiming breach
of covenant of habitability, and also set forth steps that must be taken by tenant as a prerequisite to seeking relief.
Judgment of the Appellate Division reversed, and judgment of trial court, as amended, reinstated.
West Headnotes (7)
[1]
Landlord and Tenant
Warranty of habitability
Landlord and Tenant
Covenants and Agreements to Pay Rent
Covenant on part of a tenant to pay rent, and
covenant, whether express or implied, on part of
a landlord to maintain demised premises in a
habitable condition are for all purposes mutually
dependent.
8 Cases that cite this headnote
[2]
Landlord and Tenant
Condition of Premises
Landlord and Tenant
Claims which may be subject of set-off,
counterclaim, or recoupment in general
In an action by a landlord for unpaid rent, a
tenant may plead, by way of defense and setoff, a
breach by landlord of his continuing obligation
to maintain an adequate standard of habitability.
3 Cases that cite this headnote
35
37. [3] Landlord and Tenant
Defenses
A breach by landlord of his continuing obligation
to maintain an adequate standard of habitability
may be availed of by way of defense in a
summary dispossess proceeding.
3 Cases that cite this headnote
[4]
Landlord and Tenant
Actions
Landlord and Tenant
Recovery of payments
A tenant, claiming that landlord has broken his
covenant to maintain premises in a habitable
condition, may initiate an action against his
landlord to recover either part or all of a deposit
paid upon execution and delivery of lease or part
or all of the rent thereafter paid during the term;
and in such an action, if the alleged breach on
part of landlord is proven, the tenant will be
charged only with the reasonable rental value of
the property in its imperfect condition during his
period of occupancy.
16 Cases that cite this headnote
[5]
Landlord and Tenant
Actions
Landlord and Tenant
Recovery of payments
As a prerequisite to maintaining action against
landlord to recover either part or all of a deposit
paid upon execution and delivery of lease or part
or all of rent thereafter paid during term, tenant
must give landlord positive and seasonable notice
of alleged defect, must request its correction and
must allow landlord a reasonable period of time
to effect repair or replacement.
7 Cases that cite this headnote
[6] Landlord and Tenant
Warranty of habitability
Not every defect or inconvenience will be deemed
to constitute a breach of covenant of habitability;
condition complained of must be such as truly to
render the premises uninhabitable in the eyes of a
reasonable person.
7 Cases that cite this headnote
36
38. [6] Landlord and Tenant
Warranty of habitability
Not every defect or inconvenience will be deemed
to constitute a breach of covenant of habitability;
condition complained of must be such as truly to
render the premises uninhabitable in the eyes of a
reasonable person.
7 Cases that cite this headnote
[7]
Landlord and Tenant
Warranty of habitability
Landlord and Tenant
Covenants and Agreements to Pay Rent
In any residential lease, not only will there be
implied on part of landlord a covenant of
habitability to extend during term of demise, but
also this covenant and tenant’s covenant to pay
rent will be treated as mutually dependent.
16 Cases that cite this headnote
Attorneys and Law Firms
*462 **18 Nicholas J. Schuldt, Elizabeth, for plaintiff-appellant (David Einhorn, Passaic, Union County Legal Services
Corp., attorney, Nicholas J. Schuldt, of counsel; David Einhorn, on the brief).
Joseph J. Triarsi, Roselle Park, for defendant-respondent (Pisano & Triarsi, Roselle Park, attorneys; Joseph J. Triarsi, of
counsel).
Richard E. Blumberg, Newark, Newark-Essex Joint Law Reform Project, on the brief for amicus curiae, N.J. Tenants
Organization.
Opinion
The opinion of the Court was delivered by
MOUNTAIN, J.
This case arises as the result of a dispute between a landlord and a tenant. It presents issues not previously passed upon by
this Court.
The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court, 114 N.J.Super. 124,
274 A.2d 865 (1971), but that decision was reversed by the Appellate Division, 119 N.J.Super. 332, 291 A.2d 577 (1972).
We granted certification 62 N.J. 67, 299 A.2d 67 (1972).
*463 The opinions in the courts below reveal the factual situation, which we will briefly summarize here. In September 1968
the plaintiff rented from the defendant the second-floor, four-room furnished apartment at 608 Montgomery Street in
Elizabeth for occupancy for herself and three minor children. There was no written lease; the rental for the apartment was
fixed at $35 a week, with all utilities supplied. Plaintiff testified that at the time the terms of the arrangement were agreed
upon the apartment was in a deplorable condition but the defendant promised he would make the premises ‘livable’ and
agreed to make certain specific repairs. The trial court found that these representations were in fact made, 114 N.J.Super. at
129, 274 A.2d 865, and the Appellate Division accepted this finding, 119 N.J.Super. at 335, 291 A.2d 577, as do we.
37
39. Testimony was submitted to the trial court that, at the time of the letting, screens and storm windows were either broken or
missing, a number of windows were boarded up where the panes had been broken, several radiators were not to be found,
there were holes in the floors and wall, plaster was falling, several electric fixtures were inoperable, there was a sewage
backup in the cellar and the premises were infested with roaches and rodents. Much of the furniture was found unfit for use
and was relegated to the basement. Plaintiff herself replaced the furniture as became necessary. During winter months **19
there was sometimes no heat and at all times insufficient heat.
In addition to concluding that these conditions did in fact exist, the trial court further determined that the efforts of the
landlord to correct these inadequacies were feeble and dilatory, and made only when prodded by the court and municipal
authorities. 114 N.J.Super. 128, 274 A.2d 865.
In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-payment of rent. The court
found that there had been a breach of the landlord’s express warranty of habitability and reduced the rent to *464 $75 a
month retroactive to February 23, 1970, the date from which the tenant had paid no rent. This reduced sum was apparently
forthcoming from the tenant at that time, but nothing was paid thereafter and on November 14, 1970 the tenant quite the
premises.
In the present action the plaintiff seeks to recover the difference between the rent actually paid and an amount calculated at the
rate of $75 a month for the period from the commencemant of the tenancy until February 23, 1970, pointing out that the
landlord’s default had continued throughout the entire term. The landlord counterclaimed for the rent remitted by the court.
The trial judge determined that the landlord should fairly have been given one month from the date of the inception of the
letting within which to undertake and complete the promised repairs. He rejected the defendant’s contention that plaintiff had
waived the failure to repair by continuing in possession and making full payment of the rent, pointing to the scarcity in the
Elizabeth area of available housing for low-income families with children. The plaintiff had given testimony to the same
effect. He further concluded that since the repairs had never been adequately made, plaintiff was in fact entitled to the relief
sought. Calculating the fair rental value at $75 a month, the landlord would have received a total of $1,200 for the period
from November 1968 through February 1970. Since he had in fact received $2,380 during this period, it was determined that
he should now return $1,180 and judgment for this amount was entered in the plaintiff’s favor. 114 N.J.Super. at 130, 274
A.2d 865. The judgment was subsequently reduced to $973.75 to reflect a credit in defendant’s favor of $206.25 as rent for
the period from August 27, the time of judgment, to November 14, 1970. 119 N.J.Super. at 333, 291 A.2d 577.
The Appellate Division found that some of the defects might properly be classified as ‘amenities,’ that the tenant could have
quit the premises had she wished but that she made no real effort to find other accommodations. It concluded that the
diminution in rent which had been granted *465 the tenant in the dispossess proceedings had achieved substantial justice
between the parties and accordingly reversed the trial court judgment in plaintiff’s favor.
We first consider the applicable law in this State. In Reste Realty Corporation v. Cooper, 53 N.J. 444, 251 A.2d 268 (1969)
the lessor brought suit against the lessee for unpaid rent. The evidence disclosed that the demised premises—the basement
floor of a commercial building—were periodically flooded with rain water due to the improper surfacing of an adjoining
driveway. Following many complaints and after it had become apparent that the recurrent floodings rendered the property
substantially useless for the lessee’s intended purpose, she quit the premises and refused to make any further rental payments.
This Court, reversing the Appellate Division, reinstated the judgment of the trial court in favor of the lessee. The failure of
the landlord to remove the cause of the flooding was found to be a violation of the covenant of quiet enjoyment contained in
the lease, thus constituting a constructive eviction justifying the action of the tenant in vacating the demised premises.
During the course of the Court’s opinion it was pointed out that historically a lease for a term of years carried with it no
implied **20 warranty of habitability or of fitness for the agreed purpose of the tenancy, that the doctrine of Caveat emptor
applied and that in the absence of an express covenant to repair or proven misrepresentation the tenant took the property ‘as
is.’ 53 N.J. at 451, 251 A.2d 268. It was noted nevertheless that these doctrines were being widely and forcefully attacked as
inadequate to meet modern conditions, and it was stated, by way of considered Dictum, that
. . . present day demands of fair treatment for tenants with respect to latent defects remediable by the
landlord, either within the demised premises or outside the demised premises, require imposition on him
of an implied warranty against such defects. (53 N.J. at 454, 251 A.2d at 273)
Reste is probably more important for what the opinion said and for what it forecast than for what it held. The doctrine *466
of constructive eviction, upon which the decision in the tenant’s favor rested, was by no means novel, 1 American Law of
Property (Casner ed. 1952) s 3.51, and as has often been pointed out, as a remedy it has serious drawbacks from a tenant’s
point of view. If the conduct of a landlord is later found by a court not to have justified the tenant in vacating the premises,
he will remain liable for unpaid rent. Furthermore he may be unable to find other quarters that he can afford and that he
wishes to rent and in any event he will be saddled with the not inconsiderable expenses of moving.
The decision of this Court in Marini v. Ireland, 56 N.J. 130, 265 A.2d 526 (1970) went much further toward improving a
tenant’s position vis-a-vis a recalcitrant landlord. That action originated as a summary dispossess proceeding. We there held,
Inter alia, that a residential lease carries with it an implied warranty or covenant of habitability. In explaining this holding
38
40. Justice Haneman said,
Actually it is a covenant that at the inception of the lease, there are no latent defects in facilities vital to
the use of the premises for residential purposes because of faulty original construction or deterioration
from age or normal usage. And further it is a covenant that these facilities will remain in usable
condition during the entire term of the lease. In performance of this covenant the landlord is required to
maintain those facilities in a condition which renders the property livable. (56 N.J. at 144, 265 A.2d at
534)
Having determined that a continuing covenant of habitability was to be implied, the Court went on to consider the respective
rights and liabilities to which the covenant gave rise as between leessor and lessee. In that case a toilet had cracked and water
was leaking onto the bathroom floor. Repeated attempts to inform the landlord were of no avail. The tenant had the toilet
repaired at a cost of $85.72 and sent the landlord a receipted bill in that amount together with a check for $9.28. Her
monthly rental was $95. We found that this constituted a payment in full of the rent then due, concluding that where a vital
facility is in need of repair, this work *467 may be done by the tenant who may then offset the expense against his rental
obligation. It was carefully pointed out, however, that the tenant’s recourse to this form of self-help must be preceded by
timely and adequate notice to the landlord to afford him an opportunity to make the necessary replacement or repair himself.
Should the tenant be unable to give such notice after making a reasonable effort to do so, as had there been the case, he
might nonetheless go forward with the work of repair.
In the case now before us the tenant did not vacate the premises claiming constructive eviction, nor did she undertake the
needed repairs herself and then seek to offset the expense so incurred against her obligation to pay rent. Thus she did not seek
either of the particular remedies afforded in Reste or in Marini. The latter case held, however, as we have just noted, that in
any residential lease, be it oral or **21 written, there will be implied a covenant or warranty of habitability for the duration
of the term. In this case the warranty happens to have been express, but for present purposes this makes no difference. A
lessor becomes liable to a lessee for any breach of this covenant. Such a breach having occurred here, the question we are thus
called upon to consider is what remedies are then available to a lessee. Are there remedies other than those granted in Reste
and Marini? Were this an ordinary breach of contract, the most obvious remedy would be to award the tenant damages in an
amount equal to the difference between the rent actually paid in accordance with the lease agreement and what would have
been the fair rental value of the premises in their defective condition. The objection is made that, should we adopt this rule,
it would drastically change the law, since traditionally most covenants in a lease—as opposed to those in an ordinary
contract—are treated as being independent of one another so that while a tenant may have an action for damages against his
landlord for the breach of the latter’s express or implied covenant to repair, this right of the tenant in no *468 way lessens
his own obligation to make full and punctual payment of rent to the landlord.
This doctrine of independent covenants in leasehold arrangements is probably the most important single consequence of the
traditional insistence of the law that because a lease may be said to convey an interest in property, most incidents of the
landlord-tenant relationship are to be derived from principles drawn from the law of real property rather than from those to be
found in the law of contracts. It has been persuasively argued that while the doctrine of independent covenants, and the strict
application of the rule of Caveat emptor historically so typical of leasing arrangements, may have resulted in fulfilling the
reasonable needs and expectations of landlords and tenants in the agrarian society of medieval England, this is no longer true
in modern urban and suburban society. Today the tenant needs and expects more than the mere land itself. He generally needs
and expects adequate shelter, heat, light, water, sanitation and maintenance. It is obviously unsatisfactory to tell him that he
may sue his landlord for any failure to supply these necessities, but that at the same time he must make recurring rental
payments as they fall due. Marini allowed the tenant, in effect, to apply rent monies to the making of necessary repairs. This
was a clear departure from the traditional rule of independent covenants. But the opinion did go on to say that
(t)he tenant has only the alternative remedies of making the repairs or removing from the premises upon
such a constructive eviction. (56 N.J. at 147, 265 A.2d at 535)
The defendant here insists that this constituted a holding that no other remedy is available to a tenant, where the landlord is
at fault, other than the two that are mentioned. This restrictive reading of Marini has been accepted elsewhere as well. See
Restatement of the Law of Property, Second (Tent. draft No. 1, March 23, 1973) s 5.4, page 213. Admittedly the *469
sentence, read literally and apart from context, seems to support this position. But of course a casual Dictum will not shackle
the Court to prevent a later exercise of its creative powers in fashioning new remedies as need and occasion demand.
[1] [2] We now hold that the covenant on the part of a tenant to pay rent, and the covenant—whether express or implied—on
the part of a landlord to maintain the demised premises in a habitable condition are for all purposes mutually dependent.
Accordingly in an action by a landlord for unpaid rent a tenant may plead, by way of defense and set off, a breach by the
landlord of his continuing obligation to maintain an adequate standard of habitability.
[3]
That such a breach may be availed of by way of defense in a summary dispossess proceeding has already been settled.
**22 Marini v. Ireland, Supra, 56 N.J. at 140, 265 A.2d 526.
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41. [4] [5] [6]
Furthermore a tenant may initiate an action against his landlord to recover either part or all of a deposit paid upon
the execution and delivery of the lease or part or all of the rent thereafter paid during the term, where he alleges that the lessor
has broken his covenant to maintain the premises in a habitable condition. In such an action, if the alleged breach on the part
of the landlord is proven, the tenant will be charged only with the reasonable rental value of the property in its imperfect
condition during his period of occupancy. As a prerequisite to maintaining such a suit, the tenant must give the landlord
positive and seasonable notice of the alleged defect, must request its correction and must allow the landlord a reasonable
period of time to effect the repair or replacement. Not every defect or inconvenience will be deemed to constitute a breach of
the covenant of habitability. The condition complained of must be such as truly to render the premises uninhabitable in the
eyes of a reasonable person. In Mease v. Fox, 200 N.W.2d 791 (1973) the Supreme Court of Iowa considered the same
question that is now before us, in a case involving substantially *470 identical facts. That opinion set forth the following
factors—which we here paraphrase—as meriting consideration in determining whether in there has been a breach of the
covenant of habitability on the part of the lessor.
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?
This list is intended to be suggestive rather than exhaustive. Each case must be governed by its own facts. The result must
be just and fair to the landlord as well as the tenant.
[7] The following authorities support the proposition, to which we adhere, that in any residential lease, not only will there be
implied on the part of the landlord a covenant of habitability to extend during the term of the demise, but also this covenant
and the tenant’s covenant to pay rent will be treated as mutually dependent. Pines v. Perssion, 14 Wis.2d 590, 111 N.W.2d
409 (1961); Brown v. Southall Realty Co., 237 A.2d 834 (D.C.App.1968); Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470
(1969); Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071 (1970), cert. den. 400 U.S. 925, 91
S.Ct. 186, 27 L.Ed.2d 185 (1970); Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971); Jack Spring, Inc. v. Little, 50 Ill.2d
351, 280 N.E.2d 208 (1972); Hinson v. Delis, 26 Cal.App.3d 62, 102 Cal.Rptr. 661 (1972); Mease v. Fox, Supra, 200
N.W.2d 791 (Iowa 1972); Glyco v. Schultz, 289 N.E.2d 919 (Mun.Ct.Ohio 1972); *471 Boston Housing Authority v.
Hemingway, Mass., 293 N.E.2d 831 (1973); Restatement of the Law of Property, Second, (Tent. draft No. 1, March 23,
1973) Supra, ch. 5.1 In adopting the foregoing rule these courts deliberately rejected the rule of independent **23 covenants
and the doctrine of Caveat emptor as applying to leases.
Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view. In 1971 the Legislature
enacted a statute designed to meet the problem we are considering. (L.1971, c. 224; now N.J.S.A. 2A:42—85 et seq.)2
Since
it did not become effective until June 21, 1971 it is not directly applicable to this case. But as was recently pointed out by
Justice Sullivan, speaking for this Court in Shell Oil Co. v. Marinello, 63 N.J. 402, 307 A.2d 598 (1973), a statute often
reflects legislative concern over a longstanding abuse, and to that extent may be fairly understood as articulating a public
policy pre-existing the date of the statutory enactment. Such is clearly the case here. The introductory section of this statute
is entitled, ‘Legislative findings,’ and reads as follows:
The Legislature finds:
a. Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meet minimum standards of
safety and sanitation;
b. It is essential to the health, safety and general welfare of the people of the State that owners of substandard dwelling units
be *472 encouraged to provide safe and sanitary housing accommodations for the public to whom such accommodations are
offered;
c. It is necessary, in order to insure the improvements of substandard dwelling units, to authorize the tenants dwelling
therein to deposit their rents with a court appointed administrator until such dwelling units satisfy minimum standards of
safety and sanitation. (N.J.S.A. 2A:42—85)
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