New Jersey Landlord-Tenant 101: Evictions -- Defenses


One last post concerning the issue of residential evictions in New Jersey.  So far, we’ve covered the grounds for eviction of a residential tenant and the various noticesthat are required in connection with same.  Those posts turned out to be lengthier than originally anticipated, which just go to show that there are numerous “moving parts” to the landlord-tenant relationship, especially when it comes to evictions.  In this post, we’ll touch on some of the standard defenses to an eviction action and in the next, and last, post in this series, we’ll highlight some post-eviction issues.

Here’s the question I get a lot from residential landlords, when I tell them that eviction might not be possible: “The tenant did or did not do “X.” What do you mean I can’t evict them?”  This question usually comes after we’ve walked through the entire case.  Unfortunately, sometimes, even when a tenant is “behaving badly” under the lease, there may be one or more things the tenant can point to which enables them to avoid eviction.  Here are some of the defenses available to residential tenants:

  • Bankruptcy: the filing of a bankruptcy petition stays an eviction case unless judgment for possession was already awarded or the eviction filing is based on recent “endangerment” or “illegal use of controlled substances” in or about the premises. Even if those circumstances apply, a landlord still has to seek permission from the bankruptcy court to move forward.
  • Non-compliance with the Landlord Registration Actif the landlord has not complied with this Act, the Court has no jurisdiction and no judgment for possession can be entered against the tenant.
  • Non-compliance with the Security Deposit Actfailure to comply with the notice requirements of this Act could allow a tenant to apply the security deposit to rent owed and thereby defeat a “non-payment” case.
  • Habitability: the issue of habitability can be raised as a defense to a “non-payment” case by showing that the tenant is entitled to an abatement or offset of rent for landlord’s breach of the warranty of habitability.  All leases of residential premises in New Jersey include an implied warranty of habitability.  The landlord warrants in part that there are no latent defects to the premises’ “vital facilities” and that the vital facilities will remain in usable condition during the entire lease term.  To advance this defense, the tenant must have provided the landlord with timely and adequate notice with an opportunity to repair and the item of disrepair must directly affect the habitability of the premises.  If the repairs are not done after notice to the landlord, the tenant may make the repairs and deduct expenses from future rents.  If the landlord then pursues eviction based on non-payment of rent, the tenant in response can argue that s/he is entitled to offset, abatement or rebate. (This is generally referred to as a “Marini defense” based on the 1970 case from which it originated.)
  • Waiver: allowing a lease to renew and/or acceptance of rent by a landlord withknowledge of a breach of the lease may constitute waiver of all past breaches.
  • Retaliation: generally, N.J.S.A. 2A: 42-10.10 prohibits a landlord subject to the Anti-Eviction Act from filing for eviction or substantially altering a tenant’s lease in retaliation for any of the following tenant activity: seeking to enforce rights under the lease or the laws of New Jersey or the U.S.; seeking to remedy a landlord’s alleged violation of any health or safety law or regulation; or seeking to organize a lawful organization, e.g., a tenant organization.  If any such actions are taken w/in 90 days of tenant activity, a rebuttable presumption that the landlord’s action is retaliatory is established.
  • Unconscionability: this defense usually comes up in connection w/ a rent increase.  If the premises is subject to a rent control ordinance make sure any rent increase is done in compliance with same.
  • Failure to provide relocation assistance under N.J.S.A. 2A:18-61.1(g): if alandlord is forced to permanently board up or demolish the premises due to housing code violations which are economically unfeasible to correct, relocation assistance under N.J.S.A. 52:31B-1 must be provided before any Warrant for Possession will be issued.
  • Absence of timely or adequate notice to the tenant: as discussed at length in an earlier post, virtually all but one grounds for eviction (non-payment of rent) require some form of advance notice to the tenant before filing for eviction.  If a landlord fails to comply with the applicable notice requirements, than the court has no jurisdiction and eviction will not be granted.
  • Payment of Rent: last, but certainly not least, payment of rent due and owing is a “defense” to an eviction case which is oftentimes welcome by a landlord.  Payment of rent will result in dismissal of the case.

The next post and last post in this current series will discuss certain post-eviction issues faced by landlords. 

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