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What Can A Landlord Do If A Tenant Who Owes Rent Claims Constructive Eviction?

By Jennifer L. Alexander, Esq. June 30, 2014 Posted in Landlord/Tenant Law

Landlords are often faced with a variety of tenant-related issues, some of which might land them in a courtroom.  A common issue that leads to litigation for many landlords concerns constructive eviction based upon a tenant’s claim that the apartment is uninhabitable.  Such claims can arise when a tenant seeks to break his or her lease months prior to its expiration, and without penalty, because the tenant considers the dwelling to be uninhabitable.

Here's a scenario: Let's say a tenant rents a housing unit from a landlord for a period of one year. The rent is $1750 per month, which is due at the beginning of each month. Everything is going along smoothly for the first four months, but in month five, the tenant informs the landlord of a leaky pipe in the bathroom. The landlord, for whatever reason, never responds to the tenant's notification and by the end of the month, the tenant notices an issue with mold which has caused additional property damage to the tenant. The tenant makes the decision not to pay the next month's rent.

The landlord still has not fixed the leak, and in addition to that issue, the heat does not work in the unit. So now the tenant has a leak, mold and failing heat. The landlord is reminded of the leak/mold issues and advised that the heat is not working, but the landlord still fails to act. The tenant deems the unit to be unlivable and refuses to pay rent again. Two months of rent have not been paid, so the landlord decides to serve the tenant with court documents that seek to evict the tenant for non-payment of rent. Can the landlord do that? Let's take a look at how the law works.

Landlords should keep in mind that there are certain instances in which tenants who have considerable habitability issues can claim a "constructive eviction" and cancel their leases without penalty or liability for the remaining lease term. Still, the tenant must be able to demonstrate that those issues are so substantial that they render the unit unsuitable for the purpose for which it was leased. Additionally, the tenant will need to provide the landlord with a reasonable amount of time in which to fix the issue (except in very extreme instances). The tenant will bear the burden of proving their case and will be required to follow the Rules of Evidence, whether or not they hire an attorney to represent them.

Generally, most tenants only claim habitability violations as a defense to a landlord’s eviction action against them for non-payment of rent. To combat using habitability as a stall tactic, courts in New Jersey require that tenants post all base rent monies owed to the court on the day of trial before a habitability hearing (referred to as a Marini hearing) will be scheduled. If the tenant cannot post the money in court, a judgment for possession in favor of the landlord will typically enter.

Many tenants who try to use the constructive eviction defense do not have legitimate arguments and the defects alleged are simply an excuse to attempt to cancel their leases or not pay their rent. Nevertheless, landlords should remember that when tenants move out, they are still obligated to try to mitigate their damages by finding someone else to rent the unit. And unless the constructive eviction claim is successful, the current tenant would still be held responsible for rent due to the landlord until the expiration of the lease.

If you have questions or concerns about the possibility of your tenants claiming constructive eviction and your options under the law, contact the New Jersey attorneys at Griffin Alexander, PC today.

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