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Hurricane Sandy and the Warranty of Habitability

By Jennifer L. Alexander, Esq. May 7, 2013 Posted in Landlord/Tenant Law

An issue currently facing many landlords throughout New Jersey are the claims for rental abatement from their tenants for the days in which they were without power due to Hurricane Sandy. In these instances, tenants have claimed that because their electricity, heat and hot water were out for as many as 14 days or more due to Hurricane Sandy, that the landlord breached its warranty of habitability. These claims attempt to somehow purport that landlords were responsible for the second-costliest hurricane in United States history. Up until recently, there has been little to no guidance from the courts on this issue. This changed, however, earlier this month when Essex County Judge Mahlon L. Fast handed down the first published opinion on this issue.

In Gardens at Maplewood v. Fowlin, Judge Fast, the author of one of the most influential Landlord/Tenant law treatises in New Jersey, held that landlords cannot be held responsible for an Act of God. In Gardens at Maplewood, the landlord had sued its tenant seeking eviction based on non-payment of rent in the amount of $857.50. The tenant claimed that this amount represented one-half of their November 2012 rent which they purposely withheld on account that they were without heat, lights or hot water for two weeks.

Judge Fast found this argument to be unpersuasive given that the catalyst for such service interruptions was Hurricane Sandy, an undisputed Act of God, which Black’s Law Dictionary, sixth edition, defines as:

An act occasioned exclusively by forces of nature without the interference of any human agency[.] . . . and is of such a character that it could not have been prevented or escaped by any amount of foresight or prudence, or by any reasonable degree of care or diligence . . . Any accident produced by any physical cause which is irresistible, such as lightening, tempests, perils of the seas, tornados, earthquakes.

Judge Fast held that “tenants are not entitled to an abatement when the landlord repairs the defective condition within a reasonable time after learning of its existence. A ‘reasonable time,’ when the repair is solely in the control of a third party (PSE&G) over whom the landlord has no control, would be when the third party completes the repair.”

While this case is being seen, and should be seen, as a victory for landlords throughout the State, it’s important to keep this case in perspective. We are aware of other judges in New Jersey who disagree with this holding and instead believe that a tenant should not be responsible to pay for something he or she did not receive and Landlords should bear the brunt of a loss with respect to acts of God. Judge Fast himself, did make a distinction in his ruling indicating that his ruling would have been different had the property been a luxury rental where the reasonability of the tenant’s expectations are different.

While Judge Fast’s opinion may persuade these judges, courts are not generally bound to follow the published decision of a coordinate trial court. State ex rel. R.M., 343 N.J. Super 153, 156 (Ch. Div. 2001). In any event, this case is likely headed to the Appellate Division so that they may provide guidance to the lower courts on how to handle these claims.

So while landlords should not necessarily be jumping for joy just yet, they can certainly find solace in the fact that they won the first round in the issue of whether they should provide abatements for their tenants who were without heat or electricity due to Hurricane Sandy.

If you would like to talk to an attorney from Griffin Alexander, P.C. to learn how we can help develop an Ethics Resolution for your Association, please contact us at (973) 366-1188 or at

This posting is intended to provide general information and is not intended as specific legal advice or to establish an attorney-client relationship. Please contact Griffin Alexander, P.C. at (973) 366-1188 to assist you with both your Community Association law and Landlord-Tenant law needs.

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