Repair & Deduct and Rent Withholding — When Are These Unjustified?
March 23, 2018 Posted in Landlord/Tenant Law Share
In New Jersey, residential landlords have a duty to maintain their units in such a way that they are fit for residential purposes through the term of the lease. Any damage caused to “vital facilities” that influence the habitability of the unit must be reasonably repaired in a timely manner.
If your tenant believes that you have breached the “implied warranty of habitability” and failed to maintain their residential unit so that it is fit for its purposes, then they may engage in a number of self-help remedies pursuant to New Jersey law, including the repair and deduct remedy, and the rent withholding remedy.
Repair and Deduct
Repair and deduct is a remedy created by the New Jersey Supreme Court. Essentially, the tenant may repair the defect in their residential unit (and related facilities) and then deduct the cost of the repair from their rent payments. Critically, however, the tenant must first notify you — the landlord — of the purported defect and give you a reasonable time period to address the issue, by either repairing or replacing the defect, or otherwise correcting the issue.
Rent withholding is also a remedy created by the New Jersey Supreme Court. As a fundamental matter, the tenant’s obligation to pay their rent is tied to the landlord’s obligation to maintain the premises in a manner that is fit for its residential purposes. If the habitability of the unit is compromised, then the tenant does not have to pay rent. The tenant may therefore withhold rent until you sue to recover damages (whereupon the tenant will attempt to show that repairs are necessary and that you failed to make such repairs), or until you correct the defects.
Tenants are not always justified in deducting from the rent payment, or withholding rent altogether. Tenants are only entitled to engage in such remedies if:
- the defect at-issue relates to a vital facility, such as heating, air conditioning, electricity, water, sewage, etc.;
- the tenant is not responsible for having created the defect; and
- the tenant properly notified you — the landlord — of the defect and gave you a reasonable amount of time to respond to the defect.
Suppose, for example, that the water is not running properly in the tenant’s unit. The tenant begins to withhold rent for several months without properly notifying you as to the existence of the defect, however. When you finally confront the tenant about the nonpayment of rent, they assert that they notified you as to the existence of the defect — they left a voicemail on your phone. You did not receive the voicemail (perhaps it was deleted). Regardless, leaving a voicemail would not constitute sufficient notice. In New Jersey, the tenant must give written notice by certified mail. As such, you would likely be entitled to recover the unpaid rent.
If you are having difficulties dealing with tenants who are making repairs and subsequently deducting such repairs from their rental payments, or who are otherwise withholding rent from you on an unjustified basis, then you should consult with an attorney who has experience handling New Jersey landlord tenant law. You may be entitled to sue and recover damages for the losses imposed on you by such tenants.
Let the skilled attorneys at Griffin Alexander, P.C. assist you!