Eviction defense for nonpayment of rent rarely used.
Paula Franzese, the Peter W. Rodino Professor of Law at Seton Hall University School of Law, along with co-authors Abbot Gorin, a staff attorney with Essex-Newark Legal Services and Seton Hall Law student David Guzik, have published a study which examined more than 40,000 residential eviction proceedings for nonpayment of rent in Essex County in 2014.
Surprisingly, the authors found that only 80 of those more than 40,000 cases (0.2%) had tenants asserting a breach of the implied warranty of habitability—an affirmative defense for nonpayment of rent available to tenants in substandard housing conditions. The study's authors found this failure to use the implied warranty of habitability as a defense against eviction to be "startling," particularly "in view of the far greater statistical likelihood that serious housing code violations exist in rental units in the more impoverished sections of Newark and its vicinity."
The implied warranty of habitability guarantees residential tenants that the apartments they rent are livable and in good condition. It is supposed to give aggrieved tenants who are, for example, without heat or running water or suffering from rodent, bug or mold infestation the right to lawfully withhold rent until the landlord makes the necessary repairs.
The authors found that when it is invoked the implied warranty of habitability can and does work to bring needed repair and improvement to otherwise substandard dwellings. In more than half of the cases where the defense was raised it was used successfully to cure housing code violations on leased premises. Moreover, irrespective of whether the defense succeeded or failed the majority of tenants who did assert it stated unequivocally that they would resort to it again if faced with significant on-site infirmities.
Given the success rate of the defense, the authors found it "surprising and disappointing" that it was used only 80 times in more than 40,000 cases or just 0.0002% of the time. The authors noted, however, that cause for even greater concern is their finding that landlords who lease decrepit and unsafe government-subsidized apartments continue to receive the overwhelming majority of the monthly rent obligation from government agencies, even when an aggrieved tenant demonstrates in court that the given apartment is largely uninhabitable. In that way, say the authors, "low-income tenants in subsidized housing become voiceless. They can assert their claims in court but still the landlord's principal cash flow is not at risk."
The authors conclude that "much more must be done by the organized bar to afford low—income tenants—who at present are so very seldom represented in court—the essential knowledge and means to vindicate their rights."
They recommend that tenants who do submit to court proceedings should be relieved of the duty to deposit withheld rent with the court when they can instead apply those withheld sums to abatement measures that could include making the necessary repairs themselves. Further, the authors call for government rental subsidies to stop flowing to derelict landlords and be applied instead to preserving and increasing stocks of decent, livable and affordable rental housing.
And finally, the authors assert that "the insidious practice of tenant blacklisting" must be reined in by statutory reform as they found that "every residential tenant named in a non-payment of rent action faces the very real likelihood that he or she will show up on a 'tenant blacklist' or central registry maintained by private agencies that is the equivalent of a miserable credit rating." The authors note that tenants placed on that list find themselves denied future renting opportunities and often find themselves facing other serious consequences.
Professor Franzese, who has spearheaded ethics reform initiatives on behalf of three governors in New Jersey, issued a call for both statutory and technological reform, "At present there is no mechanism in place for coordination between housing courts, housing inspectors and federal and state rent subsidizing agencies to stop governmental cash flow to derelict landlords. New Jersey needs a unified housing code enforcement system that would allow judges quick computerized access to the given apartment's rental history and housing inspection reports, give housing inspectors and judges the means to alert government subsidizing agencies to landlord noncompliance with housing standards and afford tenants quicker access to justice," she said. "The practice of tenant blacklisting must be must be hemmed in to at least require reporting services to omit from their registries any court proceedings resolved in tenants' favor and include the full and accurate context for all information that they do provide. Tenants identified in reports should be also be afforded the opportunity to clear their names."
The article, "The Implied Warranty of Habitability Lives: Making Real the Promise of Landlord/Tenant Reform," will be published later this month in the Rutgers Law Review.