Plaintiff tenant entered into possession of an apartment with was no written lease and the rent was fixed monthly under the condition that the landlord would make certain repairs to render the premises ‘livable’. The landlord never did and tenant terminated rent payments. The landlord instituted a summary dispossess action against Berzito for nonpayment and the state district court held that the landlord was in violation of his express warranty of habitability and reduced the tenants rent but tenant still did not pay. The trial court ruled in the tenant's favor and rejected the landord's contention that by remaining in possession the tenant had waived the failure to repair. The appellate division reversed and tenant appealed. The NJ supreme court held that the landlord had breached his covenant of habitability' and that the tenant's covenant to pay rent depended upon the fulfillment of the warranty of habitability. Prior to this holding the NJ courts had only recognized two tenant remedies – caveat emptor by allowing the tenant to vacate the premises when constructively evicted and the common law belief that traditional common law relationships were ill suited to modern living conditions and should be relaxed. This latter remedy, the warranty of habitability, gave relief to the tenant when his landlord failed to maintain the premises in a habitable condition.'" This case does not present a fact pattern fitting New Jersey's available remedies since "the tenant did not vacate the premises nor did she undertake the needed repairs herself and then seek to offset the expense so incurred against her obligation to pay rent." Due to this court’s holding, the tenant is no longer limited to the establishment of defenses in a landlord's action and can take the initiative establishing a new remedy for tenants. The trend in legislation and court decisions has been for the tenant's benefit and landlords’ duty has changed dramatically over a relatively short period of time, gaining equality in the landlord-tenant relationship.
LANDLORD-TENANT LAW-Dependency of Lease Covenants-Covenant to Pay Rent is Dependent upon Landlord's Warranty of Habitability,
2 Fordham Urb. L.J. 433
Available at: http://ir.lawnet.fordham.edu/ulj/vol2/iss2/12