This controversy concerns the applicability of Marini v. Ireland , 56 N.J. 130 (1970); Reste Realty Corp. v. Cooper , 53 N.J. 444 (1969), and Academy Spires v. Jones , 108 N.J. Super. 395 (Law Div. 1970), to a multi-family dwelling in which tenant seeks an abatement in rent by reason of landlord's failure to supply services.
Landlord instituted a dispossess proceeding under N.J.S.A. 2A:18-53(b) for nonpayment of rent at the rate of $163.17, of which $156.17 is for the apartment and $7.00 for parking, for the months of December 1969 to March 1970, inclusive, plus a balance of $28.70 for the month of November 1969. Tenant deliberately withheld payment for three months because of alleged failure on the part of landlord to supply services, and denied that any additional rent was unpaid. I find as a fact that the rent for four months has not been paid, and that there is no balance due for November 1969.
Tenant asserts that the rental rate is $135 for the apartment, not $156.17. Landlord's position with relation thereto is that the $156.17 figure is the approved F.H.A.
rental for the five-room apartment in question, and I have no reason to question this fact. The evidence shows, however, that the agreement between tenant and landlord's superintendent was that the apartment would rent for $135 per month. The approved F.H.A. amount is merely the maximum permitted rental and the tenant is not bound thereby. 12 U.S.C.A. § 1747c.
Tenant did not move. However, I take judicial notice that there is a great shortage of housing accommodations in Essex County. Evidence Rule 9(1). Therefore, it would be unreasonable to require tenant to move as a prerequisite to abatement of rent. Marini, supra.
The apartment in question is on the ninth floor of a complex housing 400 tenants, with a large parking area.
Tenant's defenses fall into two categories: first, that landlord has failed to provide electric illumination in compliance with a Newark ordinance, for the parking lot, by reason of which the agreement for parking lot fee is illegal and unenforceable; and second, invoking Marini, supra , that landlord has failed, after notice, to supply essential services, rendering the premises uninhabitable, at least in part, entitling tenant to diminution in rent.
The first problem is determined easily. Factually, there is no evidence that landlord has failed to meet the standards set by section 7:424.6 of the Newark Building Code. Legally, the illegality specified affects only peripheral aspects of landlord's performance in supplying parking space. This is not a case where the agreement was made for the purpose of violating a statutory prohibition, as in Brooks v. Cooper , 50 N.J. Eq. 761 (E. & A. 1893). Nor is it a case where a housing code explicitly prohibited rental of premises in violation of the code, as in Brown v. Southall Realty Co. , 237 A.2d 834 (D.C. App. 1968), or where a zoning ordinance prohibited the use of the premises for which it was leased, as in Ober v. Metropolitan Life Ins. Co. , 157 Misc. 869, 284 N.Y.S. 966 (N.Y. City Ct. 1935); Becerra v. Hochberg , 193 Cal. App. 2d 431, 14 Cal. Rptr.
101 (D. Ct. App. 1961), and Howell v. City of Hamburg Co. , 165 Cal. 172, 131 P. 130 (Sup. Ct. 1913). Nor is it a case where plaintiff could not recover because he was not licensed for the pursuit for which he sought compensation, as in George H. Weinrott & Co. v. Burlington Housing Corp. , 22 N.J. Super. 91, (Ch. Div. 1952). Rather, the facts are that tenant could and did use the parking area, despite the code violation, if any. Indeed, the precise area allotted to tenant was probably well lighted. A more appropriate analogy is Associated Realties Corp. v. Million Dollar Pier Operating Co. , 6 N.J. Super. 369 (App. Div. 1950), in which the lease required tenant to use the premises seven days a week in violation of a "Sunday" law, and it was held that the fact that tenant could operate the premises six days a week overcame the defense of illegality. Accord: Stern Holding Co. v. O'Connor , 119 N.J.L. 291 (Sup. Ct. 1938). The illegality here was slight; tenant had already gotten the benefit of the parking area, and denial of recovery would amount to forfeiture. In such case landlord should not be denied its price. Restatement, Contracts , § 600, at 1115 (1932). See Rutkowsky v. Bozza , 77 N.J.L. 724 (Sup. Ct. 1909); Fox v. Rogers , 171 Mass. 546, 50 N.E. 1041 (Sup. Jud. Ct. 1898); Phend v. Midwest Engineering & Equipment Co. , 93 Ind. App. 165, 177 N.E. 879 (App. Ct. 1931).
Whether Marini is authority for tenant's position is more troublesome. Marini involved a two-family house in which tenant rented an apartment by a written lease specifying that the premises be used for no purpose other than a dwelling. There was no specific covenant to repair. The toilet bowl in tenant's apartment leaked. Tenant gave repeated notice to landlord, who failed to repair. Thereupon tenant engaged a plumber, who made the repair at a cost of $85.72. The question was whether tenant could credit this expenditure against the rent in a dispossess proceeding. The trial court held that he could not; the Supreme Court reversed and sent the case back for trial. The Supreme Court ruled:
1. Tenant could raise the issue of diminution in amount of rent due by reason of landlord's failure to supply services in a dispossess proceeding.
2. A covenant that the premises "were habitable and fit for living" was implied because "indispensable to carry into effect the ...