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Mishal v. Westbound Homes, Inc.

A-5499-97T1 (N.J. Super. App. Div. 1999) (Unpublished)

LANDLORD-TENANT; WARRANTY OF HABITABILITY—Not every defect or inconvenience will be deemed to constitute a breach of the covenant of habitability; the defect must render the premises uninhabitable in the eyes of a reasonable person.

A residential tenant alleged that its landlord had breached the warranty of habitability and quiet enjoyment and sought a rent abatement. Upon the tenant’s claim that its landlord failed to resolve a continuous noise problem caused by the tenant’s neighbor, the lower court awarded monies amounting to a twenty percent rent abatement for five years. It also awarded a twenty-five percent rent abatement for eighteen months, based upon the landlord’s failure to eradicate a racoon problem in the attic above the tenant’s apartment. It further awarded a ten percent rent abatement for two years and six months, based upon the landlord’s failure to enforce regulations concerning children playing in certain areas, and a five percent rent abatement for a six year period, based upon the landlord’s failure to enforce parking regulations. The landlord appealed, claiming, among other things, that, as to each of the awards, the evidence was either insufficient to support the award or, alternatively, that the landlord’s breach was not significant enough to affect the habitability or quiet enjoyment of the premises. The Appellate Division upheld the awards with respect to noise and the racoons, but reversed the awards granted on the basis of the landlord’s failure to enforce its parking and playground rules. The evidence with respect to the noise was that the offending neighbor was, indeed, very noisy; that the police had been called on occasion; and that the tenant and other tenants had complained to the landlord on numerous occasions. The only action taken by the landlord appeared to have been to telephone the offending tenant to report that a complaint had been made and once to issue a notice to cease. Having found that the landlord did not take reasonable steps to cure the noise problem, the Court was “satisfied that there is nothing more fundamental to a tenant’s quiet enjoyment of premises than to be free from unreasonable and excessive noise over a protracted period of time.” Finding that the lower court had concluded that the racoon infestation complaints were justified, the Court held that “the nesting of these animals in the attic over plaintiff’s apartment and the discharge of their wastes created a ‘potential’ safety and sanitation concern justifying a finding that the covenant of habitability and quiet enjoyment was breached.”

One of the regulations attached to the tenant’s lease was that the tenant could not permit its children to play in the hallways, stairways, elevators or cellars or on the sidewalk or lawn. The tenant’s children were only permitted to play in the children playground areas provided for such use. This particular tenant and many neighboring tenants complained regularly about the conduct of the children in the parking lot, on the sidewalks, and on the lawn. The Appellate Division agreed with the lower court that the failure to enforce such regulations impacted adversely on all of the tenants. “On the other hand, we are cognizant of the fact that ‘[n]ot every defect or inconvenience will be deemed to constitute a breach of the covenant of habitability.’ The condition complained of must be such as to render the premises uninhabitable in the eyes of a reasonable person.” The concept is that tenants who live in a heavily populated area with little open space should reasonably expect to accommodate certain annoyances as a part of every day living. Inasmuch as the breach of this regulation did not violate any law and did not have a potential or actual effect upon safety and sanitation, the premises were not rendered “uninhabitable in the eyes of a reasonable person.” With respect to the complaint about parking, the tenant agreed, in its testimony, that it was willing to tolerate certain tenants parking in a way as to block its own car, but thought that the landlord should enforce the parking regulations against those tenants that were uncooperative in the way in which they employed “piggyback” parking. According to the Court, “[o]ne wonders in such circumstances how a landlord is expected to respond to such a situation and anticipate it when a tenant will not accommodate another’s request to move a vehicle.” In essence, to the Court, violation of the regulation merely constituted an annoyance to the tenant for which the landlord was not responsible.


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