King, J.c.c., Temporarily Assigned.
[133 NJSuper Page 578] This is an action for summary dispossession brought pursuant to N.J.S.A. 2A:18-53 et seq. alleging a default in rental payments for the month of October 1974. The monthly rental is $285 for this 3-bedroom, 2 1/2-bath, 2-story garden apartment or townhouse in Lindenwold. Defendants withheld rent due for one month, depositing the funds in their attorney's escrow account. Thereafter the monthly rentals were deposited in escrow pending this court's decision. Defense counsel made application to the court for removal of the matter to the Superior Court, Law Division, pursuant to N.J.S.A. 2A:18-60, on the grounds that the issues raised were novel and
of sufficient importance to warrant an appeal. The court agrees. Plaintiff consented to this application and an order of removal was entered by the court. Both parties waived the right to jury trial and the matter was submitted to the court as trier of fact.
Defendants raise so-called habitability defenses and request an abatement of a portion of the rent. The questions are novel because the allegedly affected area is external to the actual leased premises. Tenants claim the area immediately surrounding his leased townhouse is very poorly maintained and is overflowed by mud and water most of the time, presenting a physically and aesthetically undesirable situation. They also request an abatement because a swimming pool and playground area which was promised to the tenants on initial leasing have never been furnished. This latter assertion of lack of habitability raises the problem of the right to relief where the landlord has failed to furnish certain amenities which are to be used in common with other tenants of the complex. (About 100 of the total 192 units are now completed and occupied).
Timber Ridge was designed as a family community. Of the 192 units ultimately to be constructed, about one-third are three-bedroom units and two-thirds are two-bedroom units. Of the 100 units presently occupied it was estimated that 80-85% include children among the tenants' families. The townhouse complex is located in Lindenwold, a town of about 23,000 residents, 16,000 of whom live in rental dwellings, located at the eastern terminus of the Philadelphia-Lindenwold High Speed Line. A brochure used in the rental of the properties was placed in evidence. Defendants leased the property in December 1973 in partial reliance upon the representations in the brochure. The brochure described the project as: "Quietly nestled in a gently rolling wooded glen * * * [offering] serene living in a beautiful country setting with on-site recreational facilities including a swimming pool and childrens' play area * * * and
individual patio facing a spacious landscaped court yard." The written lease agreement executed on December 1, 1973 for a term of one year refers to the premises as "the apartment consisting of 5 rooms and baths."
Tenants here seek to extend the doctrine of implied warranty of habitability beyond the actual physical structure. The court with the approval of the parties, inspected the premises exteriorly on the day following the final hearing, December 19, 1974. There is no doubt that the external conditions detract substantially from the tenants' living pleasure. Defendants' townhouse is immediately adjacent to the area where a large retaining wall is being constructed. Construction has been in progress for four months, and from the court's observation may continue for at least several more months. These defendant tenants are almost uniquely affected by the construction because of their proximity to the conditions. No other occupied unit is affected in such a severe manner. Their "individual patio facing a spacious landscaped court yard" is unusable, as it is surrounded and overflowed by mud and water. The mud flows over the walkway connecting defendants' main entranceway and the common parking area. The parking area itself, especially where defendants or their visitors would park their vehicles, is covered with mud. The "court yard" which these tenants could legitimately anticipate appreciating is nonexistent throughout the course of construction. The construction prevents use of the patio and affects ingress and egress, use of the parking area and any outdoor recreational use of the area adjacent to the premises for either the two adult tenants or their three children. The subject premises is the highest price townhouse or apartment available in this municipality (oriented to multifamily dwellings). Tenants had a reasonable expectancy of a decent exterior environment from the sales promotion, the initial condition of the premises, and the higher price of the apartment compared to others in the community,
whether the expectancy be characterized as one of amenity or necessity. They are deprived of a substantial attribute of the premises through no fault of their own and they have no control over any possible remedy to the situation. Plaintiff landlord and developer was required to install the new concrete retaining wall by the municipality after defendants took possession. The initial wooden railroad tie wall had become unsafe.
The landlord argues that the implied warranty of habitability should not be extended beyond the scope of the presently controlling cases so as to encompass conditions exterior to the premises. The evolution of the doctrine to date has not explicitly included exterior conditions within its scope. In Reste Realty Corp. v. Cooper, 53 N.J. 444 (1969), where exterior surface water was flooding the first floor of a leased office building, our Supreme Court first recognized the necessity for a more contractually oriented analysis of a lease agreement and announced the implied warranty of habitability doctrine in a commercial leasehold setting. The court upheld the tenant's right to vacate before the termination of the lease in such a situation.
The Supreme Court in Marini v. Ireland, 56 N.J. 130 (1970), applied the doctrine to a duplex-apartment rented for dwelling purposes. The tenant was permitted to pay the cost of toilet repair and offset this expense against current rental by way of abatement. Analyzing the Marini lease according to contract principles, the court examined the intention of the parties, i.e., the representations of the landlord as to what he had available and the reasonable expectations ...