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Rent Abatements for Habitability Issues in Luxury Apartments

January 11, 2017 Posted in Landlord/Tenant Law

A rent abatement is a court ordered remedy for a "habitability" issue. Essentially a portion of the tenant's rent is written off by the court because it is determined that the leased premises did not meet certain standards of living for some period of time. 

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. Tenant replaced the furniture as became necessary. During winter months there was sometimes no heat and at all times insufficient heat. Berzito v. Gambino, 63 N.J. 460, 463, 308 A.2d 17, 18-19 (N.J. 1973).

  • Defective conditions relating to the gas range, kitchen sink, pipe leakage, broken windows, cracked walls, a defective bathroom door and chipped plaster. Samuelson v. Quinones, 119 N.J. Super 338 (App.Div.1972).
  • Substantial defects including lack of heat and hot water, falling plaster, water leaks and flooding. Newark Housing Auth. v. Scott, 137 N.J. Super. 110 (App.Div.1975).
  • Failures in the heat, hot water, elevator service and incinerator. Academy Spires, Inc. v. Brown, 111 N.J. Super. 477 (Cty.D.Ct.1970).
  • Serious mud and water problem affecting the tenant's yard and entranceways. Timber Ridge Town House v. Dietz, 133 N.J. Super. 577 (Law Div.1975).

The usual complaints that lead to habitability issues, and requests for a rent abatement by a tenant, are a lack of heat or air conditioning, a lack of hot water, foul odors, or noise. However, New Jersey courts have acknowledged that the standards are different for a luxury apartment. Essentially, a tenant who pays a high premium for a luxury apartment expects a higher quality of living. As a result, the standard needed to obtain a rent abatement is lowered.

 “The Court has a tremendous amount of discretion in the amount of the abatement . . . To some extent then, the result will depend on the court’s gut reaction. The impression the witnesses make and the attorney’s power of advocacy are also crucial factors.”

Diebold, Landlord-Tenant Practice, The New Jersey Institute for Continuing Legal Education (2007).

 In Berzito v. Gambino, 63 N.J. 460 (N.J. 1973, the Supreme Court of New Jersey stated that the amount of the rent that is paid by a tenant is one of the factors that a court may consider when determining whether there is an issue of habitability. In Terrace Condo. Ass'n v. Midlantic Nat. Bank, 268 N.J. Super. 488, 497-98, 633 A.2d 1060, 1065 (Super. Ct. 1993), a case involving a condominium unit rather than an apartment building, the court stated that

 “Freedom from exposure to the elements certainly is a matter of habitability. This is particularly so where, as here, the project purports to be a luxury condominium.”

A court may reduce the amount of rent owed by a tenant during the period of time when a habitability issue existed. Some examples of a reduction in a tenant’s rent can be found below:

However, the abatement examples do not mean that the Landlords do not have strong arguments when it comes to refuting rental abatements. A Landlord’s response time is crucial in reducing an abatement or having one offered at all. Tenants have a duty to notify Landlords when there is a habitability issue. Failure to do so can put the Tenant in a position of negligence and liability for damage to the Landlord’s property. The Landlord’s responsibility is to make repairs to the property within a reasonable amount of time, depending on the type of repair needed. Also, if during the time the repair was needed, if temporary housing was provided, an abatement may also not be justified.

The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances.  Each legal matter is unique, and prior results do not guarantee a similar outcome.


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