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Gianesh v. Krolik

A-4049-97T5 (N.J. Super. App. Div. 1999) (Unpublished)

LANDLORD-TENANT; EVICTION—Even though a tenant raises a habitability defense in an eviction proceeding and loses, the tenant may still raise the issue as a defense in an action for collection of rent or as its own claim for return of rent.

A default eviction judgment was obtained by a landlord. Prior to the date specified in the warrant of removal, the tenant moved for an order vacating the judgment of possession and warrant of removal on the basis of lack of service. Alternatively, the tenant sought a hardship stay from execution of the warrant, it contending that its landlord breached the implied covenant of habitability. The tenant also sought a refund and suspension of its rental payments on the basis that the landlord failed to obtain a certificate of occupancy for the premises. The lower court did not rule on the merits of the tenant’s application, but entered an oral order staying execution of the warrant of removal for about two weeks, conditioned upon the tenant posting a sum with the landlord’s attorney. The lower court judge explained this would give the tenant “an opportunity to make arrangements” with its own attorney and to make further application to the court on the habitability issues. Instead of posting the monies or making an additional application to the lower court, the tenant filed a notice of appeal with the Appellate Division on an emergent basis. The application was denied. The tenant did not post the money and vacated the premises. On appeal, the tenant sought the return of all rental monies paid by it during times when the premises were uninhabitable and during those times when the landlord did not have a certificate of occupancy for the premises. The Court viewed the use of the “habitability defense” to entry of a judgment of possession as separate from the right of a tenant to proceed on a claim for return of rental monies. When the tenant elected to seek appellate review rather than posting the monies and litigating the issue of habitability, the judgment of possession was appropriate. However, according to the Court, the tenant’s right to seek return of rental monies was not dependent on the posting of the monies. Accordingly, the tenant was permitted to file suit within the applicable statute of limitations to seek return of the rental monies.


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