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Zaklama v. Banobe

A-1780-03T3 (N.J. Super. App. Div. 2005) (Unpublished)

LANDLORD-TENANT; MARINI DEFENSE—A tenant with a valid Marini defense who asserts constructive eviction need only have given his or her landlord oral notice of the unhabitable conditions and a reasonable time within which to cure them and need not give the landlord the 30 day notice normally required to terminate a month-to-month lease.

A landlord sued to evict its tenant for non-payment of rent. The tenant “asserted a Marini defense” in which he claimed that because the landlord breached its implied warranty of habitability, he was entitled to a defense to the “summary action for possession premised upon nonpayment of rent.” The issue was first heard by “a court mediator, who found repairs to the premises to be required” and required that “the total of [the tenant’s] June, July and August rents be paid into court.” Thereafter, the tenant duly deposited the required rent amount and informed the landlord “that he would be moving from the premises at the end of the month because the conditions were ‘unbearable.’” Shortly thereafter, the landlord “filed a complaint in the Special Civil Part . . . seeking an allegedly past-due rental payment for the month of September and the release of rents paid into court for June, July and August as the result of the Marini claim.”

Based on “photographs and other testimony,” the Special Civil Part found that the tenant had proven his habitability defense and that the apartment’s monthly rent “should be abated.” The lower court specifically found” exposed wiring, doors off their hinges, and peeling paint.” The landlord thereafter appealed the ruling, arguing that: 1) “the court lacked jurisdiction to find a rent abatement under Marini because of [the tenant’s] failure to pay September’s rent and because of [his] failure to provide written notice of defects in the dwelling;” 2) “the security deposit should not have been applied to [the tenant’s] rent obligation; 4) the tenant did not “prove his case; and” 5) the landlord “was deprived of legal counsel when the court insisted on trial on the scheduled day, despite the fact that [the landlord’s] attorney could not be located.”

The Appellate Division found “no error in the” lower court’s refusal to adjourn the trial in order to permit the landlord to find his lawyer since the landlord effectively waived the lawyer’s presence when he initially told the court that he would proceed if his attorney did not show up “[a]t the conclusion of the” judge’s calendar. Additionally, the Court found that the tenant “was entitled to an abatement of his rent as the result of [the landlord’s] breach of his warranty of habitability” and that the tenant had given the landlord “adequate notice of the defects ... and that a reasonable period of time elapsed during which cure could have occurred, but did not.” The court additionally found that the tenant was not required to put the notice in writing.

Further, the Court found that “[a]lthough the notice [the tenant] provided ... was less than the thirty days required to terminate a month-to-month lease, ... the notice [was] more than adequate in the circumstances that constituted a constructive eviction, as [the tenant] testified it to be – a claim that [the Court] found [was] supported by the evidence.” Finally, the Court ruled that the landlord’s failure to obey “statutory requirements regarding the deposit of a tenant’s security payment was appropriately remedied” by the lower court “by permitting [the tenant] to offset that payment against any rent due.


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