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Berzito v. Gambino

Decided: July 26, 1973.


For reversal -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain and Judges Conford and Sullivan. For affirmance -- None. The opinion of the Court was delivered by Mountain, J.


This case arises as the result of a dispute between a landlord and a tenant. It presents issues not previously passed upon by this Court.

The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court, 114 N.J. Super. 124 (1971), but that decision was reversed by the Appellate Division, 119 N.J. Super. 332 (1972). We granted certification 62 N.J. 67 (1972).

The opinions in the courts below reveal the factual situation, which we will briefly summarize here. In September 1968 the plaintiff rented from the defendant the second-floor, four-room furnished apartment at 608 Montgomery Street in Elizabeth for occupancy for herself and three minor children. There was no written lease; the rental for the apartment was fixed at $35 a week, with all utilities supplied. Plaintiff testified that at the time the terms of the arrangement were agreed upon the apartment was in a deplorable condition but the defendant promised he would make the premises "livable" and agreed to make certain specific repairs. The trial court found that these representations were in fact made, 114 N.J. Super. at 129, and the Appellate Division accepted this finding, 119 N.J. Super. at 335, as do we.

Testimony was submitted to the trial court that, at the time of the letting, screens and storm windows were either broken or missing, a number of windows were boarded up where the panes had been broken, several radiators were not to be found, there were holes in the floors and wall, plaster was falling, several electric fixtures were inoperable, there was a sewage backup in the cellar and the premises were infested with roaches and rodents. Much of the furniture was found unfit for use and was relegated to the basement. Plaintiff herself replaced the furniture as became necessary. During winter months there was sometimes no heat and at all times insufficient heat.

In addition to concluding that these conditions did in fact exist, the trial court further determined that the efforts of the landlord to correct these inadequacies were feeble and dilatory, and made only when prodded by the court and municipal authorities. 114 N.J. Super. 128.

In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-payment of rent. The court found that there had been a breach of the landlord's express warranty of habitability and reduced the rent to

$75 a month retroactive to February 23, 1970, the date from which the tenant had paid no rent. This reduced sum was apparently forthcoming from the tenant at that time, but nothing was paid thereafter and on November 14, 1970 the tenant quit the premises.

In the present action plaintiff seeks to recover the difference between the rent actually paid and an amount calculated at the rate of $75 a month for the period from the commencement of the tenancy until February 23, 1970, pointing out that the landlord's default had continued throughout the entire term. The landlord counterclaimed for the rent remitted by the court. The trial judge determined that the landlord should fairly have been given one month from the date of the inception of the letting within which to undertake and complete the promised repairs. He rejected the defendant's contention that plaintiff had waived the failure to repair by continuing in possession and making full payment of the rent, pointing to the scarcity in the Elizabeth area of available housing for low-income families with children. The plaintiff had given testimony to the same effect. He further concluded that since the repairs had never been adequately made, plaintiff was in fact entitled to the relief sought. Calculating the fair rental value at $75 a month, the landlord would have received a total of $1,200 for the period from November 1968 through February 1970. Since he had in fact received $2,380 during this period, it was determined that he should now return $1,180 and judgment for this amount was entered in the plaintiff's favor. 114 N.J. Super. at 130. The judgment was subsequently reduced to $973.75 to reflect a credit in defendant's favor of $206.25 as rent for the period from August 27, the time of judgment, to November 14, 1970. 119 N.J. Super. at 333.

The Appellate Division found that some of the defects might properly be classified as "amenities," that the tenant could have quit the premises had she wished but that she made no real effort to find other accommodations. It concluded that the diminution in rent which had been granted

the tenant in the dispossess proceedings had achieved substantial justice between the parties and accordingly reversed the trial court judgment in plaintiff's favor.

We first consider the applicable law in this State. In Reste Realty Corporation v. Cooper, 53 N.J. 444 (1969) the lessor brought suit against the lessee for unpaid rent. The evidence disclosed that the demised premises -- the basement floor of a commercial building -- were periodically flooded with rain water due to the improper surfacing of an adjoining driveway. Following many complaints and after it had become apparent that the recurrent floodings rendered the property substantially useless for the lessee's intended purpose, she quit the premises and refused to make any further rental payments. This Court, reversing the Appellate Division, reinstated the judgment of the trial court in favor of the lessee. The failure of the landlord to remove the cause of the flooding was found to be a violation of the covenant of quiet enjoyment contained in the lease, thus constituting a constructive eviction justifying the action of the tenant in vacating the demised premises. During the course of the Court's opinion it was pointed out that historically a lease for a term of years carried with it no implied warranty of habitability or of fitness for the agreed purpose of the tenancy, that the doctrine of caveat emptor applied and that in the absence of an express covenant to repair or proven misrepresentation the tenant took the property "as is." 53 N.J. at 451. It was noted nevertheless that these doctrines were being widely and forcefully attacked as inadequate to meet modern conditions, and it was stated, by way of considered dictum, that

Reste is probably more important for what the opinion said and for what it forecast than for what it held. The doctrine

of constructive eviction, upon which the decision in the tenant's favor rested, was by no means novel, 1 American Law of Property (Casner ed. 1952) ยง 3.51, and as has often been pointed out, as a remedy it has serious drawbacks from a tenant's point of view. If the conduct of a landlord is later found by a court not to have justified the tenant in vacating the premises, he will remain liable for unpaid rent. Furthermore he may be unable to find other quarters that he ...

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