The county district court consolidated three summary dispossess actions and following trial gave judgment of possession to respondent landlord. The warrants for possession were stayed pending this appeal.
The issues addressed to us now are whether air conditioning may constitute an element of habitability so as to allow for an abatement in rent payments where there is failure of it, and secondly, if such be the case, whether timely and reasonable efforts by a landlord to cure such a defect will defeat the claimed abatement.
Respondent landlord owns property located in the Borough of Fort Lee on which is situated an apartment house of approximately 100 residential dwellings. Central air conditioning is provided to tenants and is contemplated under written leases. (The form lease, however, provides that in the event that air conditioning, as well as heat and hot water, should cease for reasons beyond the control of the landlord, the tenants' obligations under the lease -- presumably including the payment of rent -- would not be affected, nor would the tenant have any other claim because of it. That lease provision is not advanced on this appeal.) The three defendant tenants, as well as 52 others, withheld a portion of their August 1975 rent, claiming the
total inoperability of the building's air conditioning system. Under plaintiff's complaint it was alleged that tenants Mitnick owed $60.50; Glennon owed $69.74 and Stoff owed $173.74; amounts the respective tenants withheld as being, in their judgment, fair rental abatements.
A former officer of the tenants' association testified that he wrote a letter in May 1975 to the management giving them reasonable time to have the air conditioning repaired for the summer of 1975. He had had many conversations with management concerning the system since the situation had been deteriorating since 1973.
On behalf of appellant Mitnick his wife testified that she had been a resident of the premises for about two years and that in prior summers the air conditioning had broken down. In June 1975 there were days in which the air conditioning failed. She notified the management. She testified that on 11 specific dates in July the air conditioning did not work at all and that as a result living conditions were unbearable. Her family could not sleep, she paced the floor at night and needed to take several showers each day to cool off. She left the apartment as early as possible each day. Her temperament was affected. She had to buy a fan. The temperature in the apartment reached 90 degrees on a few occasions and most of the time on the involved days was in the high eighties. She deducted 50% from her rent for those days of total inoperability of the air conditioning system.
The tenants Stoff had been lessees of the premises for five years. Mrs. Stoff testified that with the air conditioning off the apartments were unbearably hot. It was difficult to sleep and meals could not be cooked. Sandwiches and salads had to be eaten. She pointed out as an example of the discomfort that she would dress her four-month old infant for bed, anticipating a cool apartment, and that on the failure of the air conditioning it was necessary to redress her child and she had difficulty getting her back to sleep. At times the Stoffs could not sleep at all. On some occasions
Mr. Stoff would take meat to his mother's home, cook it and bring it back. They bought an individual air conditioning unit in July 1975. The Stoff's claimed abatement $173.74 was the sum of the purchase price of that unit and 50% of the daily rent for the days when the central system was inoperable.
As to appellant Glennon, counsel stipulated that she sent a letter detailing the days she was without air conditioning and it was agreed that her arrearages were in the amount of $77.84. It was further agreed that her testimony as to the failure of air conditioning and attendant circumstances would generally be the same as other appellant witnesses.
On behalf of respondent landlord it was testified that if the apartments did not have air conditioning they would have had rentals 20% less than those actually charged. In the past respondent had employed three different companies to work on the central air conditioning system, and in 1975 switched to the Central Absorption Company with which he had an annual service contract. Bills for the major repairs undertaken in the summer of 1975 were in ...