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McNamee v. Paxton

A-2551-02T3 (N.J. Super. App. Div. 2003) (Unpublished)

LANDLORD-TENANT—Even though a landlord yielding exclusive possession and control of leased premises to its tenant is not liable for failure to correct patent defects in the premises, it may still be liable for failure to repair a pre-existing defect if the lease requires the landlord to make repairs and prohibits the tenant from doing so.

A residential tenant was injured in a fall down a flight of stairs within her townhouse. The light switch was defective, apparently from the beginning of the tenancy. The tenant was prohibited under the lease from making electrical changes. Allegedly, she reported the problem to the Landlord, although that fact was disputed. The landlord argued that under New Jersey law, it was “not responsible for defects when the entire premises is leased to the tenant.” The lower court agreed and found in favor of the landlord. On appeal, the tenant argued that the landlord was obligated to make all repairs “that were not caused by the tenant’s act or neglect.” Pursuant to the lease, the tenant was only responsible to make “repairs and replacements whenever the need results from Tenant’s act or neglect.” With that in mind, the Appellate Division agreed “that when an entire property is leased to the tenant without a covenant obligating the landlord to undertake repairs, the landlord should not held liable for injuries resulting from an obvious defect or dangerous condition existing on the premises when the lessee took possession.” On the other hand, where there is a covenant to repair, “the landlord has a duty to make repairs when he or she is aware of a defect.” Consequently, the landlord could be held liable, in tort, for “failure to perform a covenant to repair.” In addition, the Court rejected the landlord’s argument that once the tenant renewed the lease, the tenant should have been “deemed to have accepted the premises with the express knowledge of the existing defect or dangerous condition.” The Court refused to endorse that argument, saying that to do so “could allow the defect to continue indefinitely without recourse.”

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