On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Sussex County, Docket No. LT-383-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and Kestin.
Plaintiff, Martorana Enterprises, the landlord in a commercial lease, appeals from a judgment dismissing its complaint for possession for nonpayment of rent and denying its claim for counsel fees. As the matter came before the trial court, defendants had withheld $1,019.71 from a monthly rental obligation to pay for the cost of repairing the heating, ventilation, and air-conditioning (HVAC) system for the premises, with its primary mechanism located on the roof of the structure.
The trial was held on stipulated facts. The focal issue involved construction and application of the second paragraph of the lease, which assigned to the tenant the responsibility for "tak[ing] good care of the premises" including making at its "own cost and expense . . . all repairs, including painting and decorating, and . . . maintain[ing] the premises in good condition and state of repair[.]" The issue on appeal, as posed to the trial court by the parties, was "which party is responsible to repair the HVAC system situated on the roof of the strip mall building."
We agree with the trial court's view, as expressed in the judge's written decision, "that it is the landlord's obligation to repair and maintain the HVAC system located on the roof, even if the HVAC system, as stipulated, was an individualized unit for the leasehold premises alone." Further, as the trial court held, failure by the landlord to provide a working HVAC system is indeed a physical interference with the tenant's use of the premises[.]
 Here the defendant could not use the premises for its intended purpose without heat and when the landlord refused to repair the HVAC system, the tenant had little alternative but to cause the repair itself and offset the amount of the repair against [the] rent obligation then due; or alternatively to remove itself from the premises as a constructive eviction.
These are full and ample bases for decision. It is unnecessary to address another argument posed both to the trial court and on appeal: whether the location of the HVAC system on the roof affected its consideration as part of the leasehold premises as a matter of law. The terms of the lease did not define the "premises" except by address. "[A]mbiguities in a lease which are reasonably susceptible of disparate interpretations should be resolved in favor of the tenant." Carteret Properties v. Variety Donuts, Inc., 49 N.J. 116, 127 (1967). Since the landlord has not prevailed in the matter, it has no claim for legal fees under the terms of the lease.
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