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Westrich v. McBride

Decided: July 10, 1984.

JACK WESTRICH, PLAINTIFF,
v.
Y. D. MCBRIDE, DEFENDANT



Peter B. Cooper, J.s.c.

Cooper

The main issue presented for determination in this case is whether a tenant of leased professional offices may be granted an abatement of rent because of the landlord's failure to supply adequate heat, a breach of an express provision of the written lease between the parties. This Court holds that in limited commercial lease situations rent abatements may be available to a tenant whose use of the leased premises has been adversely affected to a significant degree by the landlord's breach.

This matter originated as an action for Summary Dispossess in the Superior Court, Law Division, Essex County, Special Civil Part. Plaintiff (hereinafter "landlord"), owner of a commercial premises in Newark sought judgment for possession based upon defendant's (hereinafter "tenant") non-payment of rent. Tenant's Motion to transfer the case to the Superior Court, Law Division, Essex County, pursuant to N.J.S.A. 2A:18-60 and R.6:4-1(g) was granted. Thereafter, tenant filed an Answer seeking an abatement in rent and a Counterclaim seeking damages and landlord amended the Complaint to include a demand for rents due.

The facts are as follows:

The parties had entered into a written lease agreement whereby the tenant rented second floor offices for a period of one year commencing July 1, 1983 at a monthly rental of $375.00. Tenant, an optometrist, had purchased the practice of another optometrist, who had practiced out of the same office premises. Tenant asserted that her combined use of the same offices was necessary to retain the patronage of the Seller's patients. The lease provided that the premises were to be used for no other purpose than that of an optometrist's office. The lease contained an express agreement that heat was to be provided by the landlord.

Tenant raised the equitable defense that landlord breached the lease by failing to provide heat in the offices during the fall and winter of 1983-84. After written demands to landlord that adequate heat be provided and notice that further rents would be adjusted to reflect increased expenses incurred in attempting to obtain adequate heat, tenant, commencing December 1983, began deducting an amount from the rent and paid the reduced rent together with the amount deducted into her attorney's trust account. The payments were made as follows:

Paid

Month Rent Due into Trust Deduction

December 1983 $375 $358 $17

January 1984 375 375 -0-

February 1984 375 349 25

March 1984 375 319 ...


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