Plaintiff landlord instituted summary dispossess proceedings in the Essex County District Court claiming nonpayment of $220, representing two months rent. Defendant tenant sought an abatement alleging numerous defects, disrepairs and uninhabitable conditions of the demised premises, including the lack of heating facilities.
The subject apartment was a small four-room basement unit which defendant had rented for the past 2 I/2 years initially at a rental of $90 per month which was subsequently raised to $100 and then to $110 per month. At no time were there any heating fixtures or facilities in said basement apartment, the only source of heat being a gas range. The
trial judge disallowed any abatement with respect to the lack of heating facilities, but did allow an abatement of $30 per month, or a total of $60, for defective conditions relating to the gas range, kitchen sink, pipe leakage, broken window, cracked walls, hanging bathroom door, cracked and chipped plaster.
Defendant-appellant's main argument (in seeking a total abatement of rent) is that the trial judge erred in his conclusion that abatement of rent is not proper where certain conditions upon which such abatement is sought to be predicated existed at the inception of the letting and were observable by the tenant, notwithstanding the fact that such conditions violate a municipal housing ordinance.
Here, the municipal ordinance provides that no dwelling unit shall be rented or occupied unless such heating fixtures or apparatus are properly installed and conform to the municipal ordinances.
In support of total abatement, appellant urges: (1) that rental of the premises in violation of the municipal housing code constituted a violation of the covenant of habitability, the housing code constituting the standard by which to measure habitability; (2) that rental of the premises in violation of the housing code was an illegal contract unenforceable by the courts; and (3) that enforcement of the contract where there was a violation of the housing code would be against the State's public policy of protection of urban low-income tenants.
Our courts have not heretofore interpreted Marini v. Ireland , 56 N.J. 130 (1970), to mandate a complete rent abatement where conditions at the inception of the tenancy, of which the tenant has notice, violate local housing code regulations. Nor have they enunciated a policy of utilizing such codes as the standard by which to judge whether the landlord's implied covenant of habitability has been satisfied.
Marini imposed upon each landlord an implied covenant against latent defects, and explained such a covenant as follows:
Actually it is a covenant that at the inception of the lease, there are no latent defects in facilities vital to the use of the premises for residential purposes because of faulty original construction or deterioration from age or normal usage. And further it is a covenant that these facilities will remain in usable condition during the entire term of the lease. [56 N.J. at 144]
Latent defects were also involved in Reste Realty Corp. v. Cooper , 53 N.J. 444 (1969), and Academy Spires, Inc. v. Brown , 111 N.J. Super. 477 (Cty. Ct. 1970) (which pointed out that it was not a case where a housing code ...