Defense Allows Tenants in Substandard Living Conditions to Withhold Rent
On October 10, 2016, NJ Advance Media reported that a recent Seton Hall University School of Law study finds that “Most tenants living without heat or hot water, with mold or rodent infestations, or in other substandard conditions are overwhelmingly unaware of their legal rights.”
The principal author of the study Paula Franzese wrote an op-ed in the Star-Ledger on October 18, 2016, entitled “Less than 1% of N.J. tenants know their rights. Fix it this way.”
Less than one percent, 0.002%, of tenants studied knew about the “implied warranty of habitatability” defense under which it is legal for tenants to withhold their rent if their rental housing is substandard. The study surveyed 40,000 cases of which the warranty was only used 80 times.
Imagine paying rent, that you often can’t afford, for substandard housing? The “implied warranty” 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 study is titled “The Implied Warranty of Habitatability Lives: Making Real the Promise of Landlord/Tenant Reform” and was co-authored by Paula Franzese, a Seton Hall law professor, Abbot Gorin, a staff attorney with Essex-Newark Legal Services and Seton Hall student David Guzik.
“Our difficulty (in finding information about the rental housing stock) is a testament to the lack of…access to hard and fast data,” Franzese said.
The study makes the following policy changes including creating a database to track affordable housing stock and landlord violations, new policies that would cut violating landlords off from government rental subsidies, the end of “blacklisting” clients who have been late on rent payments, and for lawyers to represent low-income tenants.
“In landlord-tenant cases, about 99 percent of landlords are represented by lawyers, according to Franzese. But, only 1 percent of tenants are, she said.” This finding echoes author and academic Matthew Desmond’s findings in his book Evicted.
“This (study) began with the desire to give a voice to the many tenants…(who have) the system stacked against them,” the professor said.
Evictions force households into homelessness and if unnecessary evictions due to failure of rent for substandard housing can be prevented therefore decreasing homelessness.
As a next step, the reports’ authors are going to urge lawmakers to make the policy changes that they recommend.