On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, Docket No. LT-5234-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Graves.
Plaintiff Penny Point Park Apartments (plaintiff or landlord) appeals from the December 15, 2006 order of the Special Civil Part dismissing its summary dispossess action and granting defendant tenant, Bernice Barnes, a habitability credit retroactive from September 2006 until plaintiff provides proof from the municipal police or health department that the odor complained of no longer exists in defendant's apartment. As modified to allow competent proof from any independent third party source, we affirm the December 15, 2006 order as well as the subsequent order of March 2, 2007 denying plaintiff's motion to vacate the former.
Defendant is a tenant residing in a ground floor one-bedroom unit at plaintiff's privately owned, federally subsidized, multi-family apartment complex in Egg Harbor Township. She has lived in the development for the past fourteen years and her rent, after subsidy, is $248 per month, which represents thirty percent of her adjusted gross monthly income according to the United States Department of Housing and Urban Development (HUD) regulations.
Shortly after transferring from her two-bedroom unit in April 2005, defendant began experiencing problems in her new apartment with her upstairs neighbor. The most serious problem was a strong odor like plastic burning or smoking crack cocaine. The fumes coming into her apartment were "overpowering" and "every day," and in fact, defendant had to temporarily move out of her apartment and into a hotel for a few days in September 2006. Her sister, who had visited the apartment around the same time, also noticed the odor, which she described as a "horrible smell," even when the windows were opened.
When defendant first noticed the odor, she wrote a letter to plaintiff's representative in May 2005, and then complained to the site manager that her upstairs neighbor put trash in front of her front door. In a letter dated September 4, 2006, she informed plaintiff of fumes emanating from the upstairs apartment. When the situation remained unremedied, defendant withheld her rent for the months of September through December.
Consequently, in November 2006, plaintiff filed suit for eviction. Defendant asserted a habitability defense and upon her deposit of the disputed rent -- $992 -- the matter was scheduled for trial, which was held on December 15, 2006. At the conclusion of the evidence, the Special Civil Part judge credited defendant's testimony, finding that she notified plaintiff of the fumes prior to withholding rent and that this condition breached the implied warranty of habitability, meriting a rent abatement. The judge concluded:
The issue presented is whether from basically September 1st to the present there is a condition in the tenant's apartment which substantially affects the livability and/or the safety. The one issue is not an issue, and that is the point of notice. The landlord agrees that they received a letter and were on notice of the tenant's complaints, not to (indiscernible), but at least they were on notice.
When I review the weight of the evidence, which is the testimony of the tenant as well as her sister . . ., it's clear to me that at least during that entire period when they were there which was obviously more than [the maintenance man] was there, there is some type of acid or plastic burning smell, which the Court can take judicial notice of is akin to the use of crack cocaine.
I find that there is a condition which substantially affects the livability of the unit. I find that the testimony of the plaintiff [sic] is credible as to the existence of the condition . . . . I find that she has given notice to the landlord . . . [and] the one appearance in her apartment on a Wednesday most recently is not a sufficient response.
Accordingly, the judge ordered a reduction in defendant's rent to $100 per month, retroactive to September and continuing until plaintiff submits reports from either the police or health department verifying from at least two ...