ASSEMBLY, No. 2857
STATE OF NEW JERSEY
211th LEGISLATURE
INTRODUCED MAY 17, 2004
Sponsored by:
Assemblyman ANTHONY CHIAPPONE
District 31 (Hudson)
SYNOPSIS
Provides statutory tenants' right to repair and deduct.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning tenants' rights and supplementing chapter 18 of Title 2A of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. The Legislature finds and declares:
a. In Marini v. Ireland, 56 N.J. 130 (1970), the New Jersey Supreme Court recognized an implied covenant of habitability and livability fitness for residential dwellings. In performance of this covenant a landlord is required to maintain rental facilities in a condition which renders the property livable.
b. The court also found that the covenant bestows upon a tenant an additional remedy for a breach. The added remedy permits the tenant to remain in possession, make reasonable repairs, and deduct the cost of the repairs from future rents. A tenant's recourse to self-help has been extended by the court in Berzito v. Gambino, 63 N.J. 460 (1973) to permit a reduction in the rent until repairs are made.
c. Under current statutory law, a tenant who avails himself of the repair and deduct remedy specified in the cases above may still be taken to court by a landlord for non-payment of rent through eviction proceedings. In addition, the tenant may be subject to constructive eviction, when the removal of the tenant is deemed necessary to correct a construction code violation.
d. Many tenants are not aware of their right to repair and deduct under the common law and could benefit from specific statutory guidelines to aid them in obtaining such a remedy.
e. In addition, setting specific statutory guidelines and establishing procedures and escrowing mechanisms to be employed for the repair and deduct remedy will serve to aid landlords as well as tenants, because it will eliminate the necessity to initiate eviction proceedings for court oversight of the repair and deduct process, and will help to ensure that a tenant is properly entitled to the remedy.
2. a. Whenever a landlord fails to make the repairs and replacements of vital facilities necessary to maintain the residential rental premises in a livable condition, or otherwise fails to make the repairs necessary to correct housing code violations, after written notification by a tenant of the premises of the need for the repairs, and within a reasonable period of time adequate to accomplish the repairs and replacements, a tenant of the premises may cause the repairs to be done and deduct the cost thereof from future rents when authorized to do so by the code enforcement officer of the municipality in which the property is located.
b. A tenant shall exercise the remedy of repair and deduct pursuant to subsection a. of this section only if the tenant notifies the landlord of the necessary repairs or replacements, in writing, and allows the landlord a reasonable amount of time under the circumstances to make the necessary repairs or replacements. If the tenant is unable to give the required notice after a reasonable attempt, the tenant may nonetheless proceed to make the necessary repairs or replacements, provided that the provisions of subsection c. of this section are met. The provisions of this section shall not relieve a tenant from the payment of rent during the period that the landlord fails to repair. The tenant shall only have the alternative remedies of making the repairs or removing from the premises upon constructive eviction.
Notification by a tenant to the landlord shall not be required pursuant to this subsection when the landlord has been cited for a violation of local or State codes concerning the repairs but has failed to correct the conditions within a reasonable time, and the code official has determined that it is feasible to correct the conditions without removal of the tenant.
c. (1) Prior to exercising the remedy of repair and deduct, the tenant shall also notify, in writing, the code enforcement official of the municipality in which the rental premises is located of the fact that the tenant is exercising the remedy of repair and deduct. The notice shall include: proof that the landlord was properly notified, if required under subsection b. of this section; details of the condition of the vital facility involved; and the repairs contemplated. The tenant shall also include an estimate of the cost of the repairs, and a projected time frame for the repairs.
(2) The code enforcement official shall determine: if the repairs proposed in fact involve a vital facility, if there is a hazardous condition threatening the safety of residents, if the repairs proposed would correct a local or State code violation, and whether it is feasible to correct the conditions without removal of the tenant.
When the code enforcement official determines that the proposed repairs either do not involve a vital facility, would not correct a hazardous condition threatening the safety of residents, or would not correct a local or State code violation, the code official shall so notify the tenant, and the repair and deduct remedy shall not be available to the tenant.
When the code enforcement official determines that the proposed repairs in fact involve a vital facility, would correct a hazardous condition threatening the safety of residents, or would correct a local or State code violation, but determines it is not feasible to make the repairs without the removal of the tenant, then the code enforcement official shall so notify the tenant and shall supply the tenant with information concerning relocation assistance if it appears that constructive eviction of the tenant is imminent.
When the code enforcement official determines that the proposed repairs in fact involve a vital facility, would correct a hazardous condition threatening the safety of residents, or would correct a local or State code violation, and that it is feasible to make the repairs without the removal of the tenants, then the code enforcement official shall, in consultation with the tenant, establish a timetable for the repairs, monitor the progress of the repairs, and require an accounting from the tenant as to the deduction from rent for the payment of the repairs.
d. The accounting required pursuant to paragraph (2) of subsection c. of this section shall be viewable by the landlord of the premises on a reasonable basis by appointment with the code enforcement official.
3. The Commissioner of Community Affairs shall promulgate the necessary rules to effectuate this act pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
4. In any action for possession instituted by a landlord, no judgment for possession shall be entered if a tenant of the rental premises has exercised the right of repair and deduct in accordance with the provisions of P.L. , c. (C. ) (now before the Legislature as this bill), until such time as the repairs have been completed as monitored by a code enforcement official, and the grounds for eviction is otherwise based on good cause.
5. The provisions of P.L. , c. (C. ) (now before the Legislature as this bill) shall not affect the rights of a tenant to any remedy available under common law to make repairs to rental premises and deduct the costs from rental payments, or the rights of a landlord to institute proceedings for return of possession if no rights have been exercised by a tenant pursuant to P.L. , c. (C. ) (now before the Legislature as this bill).
6. This act shall take effect immediately.
STATEMENT
This bill establishes a statutory right for a residential tenant to make necessary repairs on the rental property and deduct the cost of the repairs from the rent, in order to maintain the rental premises in livable condition. Although the remedy of repair and deduct currently exists under common law, a tenant is still subject to eviction by a landlord for nonpayment of rent, and must endure court proceedings to uphold the remedy. In addition, many tenants are not aware of the remedy of repair and deduct. As a result, habitability conditions on the rental property are allowed to worsen until the tenant is constructively evicted, when the repairs to the property are so significant that they cannot be done without removing the tenant from the premises.
This bill establishes a method for tenants to utilize the remedy without the necessity of court proceedings, while also providing safeguards for a landlord, as the remedy would be authorized by the code enforcement official of the municipality in which the property is located, only when appropriate and, when authorized, the process will be monitored by the code official. In this manner, tenants will not be permitted to withhold money from rent payments for items which are not truly necessary for the habitability of the property, or which do not violate local or State housing codes. This bill does not eliminate the common law right to repair and deduct, nor the rights of a landlord to institute eviction proceedings if the statutory remedy is not invoked by a tenant.
Specifically, the bill requires that the tenant notify the landlord of the faulty conditions, in writing, and allow the landlord a reasonable amount of time to make the necessary repairs, unless the landlord has been cited for a violation of local or State codes concerning the repairs but has failed to correct the conditions within a reasonable time, and the code official has determined that the repairs can be done without removing the tenant.
This bill also requires that the tenant notify the code official of the municipality in which the rental premises is located that the tenant is seeking to repair and deduct. The tenant is to provide proof that the landlord was properly notified, if required, along with a description of the condition of the vital facility involved, the repairs contemplated, an estimate of the cost of the repairs, and a projected time frame for the repairs.
To authorize a tenant to repair and deduct, the code official must find either that the repairs proposed involve a vital facility, that there is a hazardous condition threatening the safety of residents, or that the repairs would correct a local or State housing code violation. The code official is to establish a timetable for the repairs in consultation with the tenant, monitor the progress of the repairs, and require the tenant to account for the cost of repairs and the deductions from the rent. The code official is also required to make this accounting available to the landlord on a reasonable basis.
In cases when the code official determines it is not feasible to correct the conditions without the removal of the tenant, and that constructive eviction is imminent, the bill requires the code official to so notify the tenant, and to provide relocation assistance information.