Academy Spires, Inc. v. Brown

• Citation: 268 A.2d 556,111 N.J.Super. 477
• Parties: ACADEMY SPIRES, INC., Plaintiff, v. Walter BROWN, Defendant.
• Decision Date: 13 July 1970
• Court: New Jersey District Court

Page 477

111 N.J.Super. 477

268 A.2d 556

ACADEMY SPIRES, INC., Plaintiff, v. Walter BROWN, Defendant.

District Court, Essex County,

New Jersey.

July 13, 1970.

Norman Malzberg, Jersey City, for plaintiff.

Nadine Taub, Newark, for defendant.

YANOFF, J.D.C.

This controversy concerns the applicability of Marini v. Ireland, 56 N.J. 130, 265 A.2d 526 (1970); Reste Realty Corp. v. Cooper, 53 N.J. 444, 251 A.2d 268 (1969), and Academy Spires v. Jones, 108 N.J.Super. 395, 261 A.2d 413 (Law Div.1970), to a multi-family dwelling in which tenant seeks an abatement in rent by reason of landlord's failure to supply services.

Landlord instituted a dispossess proceeding under N.J.S.A. 2A:18--53(b) for nonpayment of rent at the rate of $163.17, of which $156.17 is for the apartment and.$7.00 for parking, for the months of December 1969 to March 1970, inclusive, plus a balance of $28.70 for the month of November 1969. Tenant deliberately withheld payment for three months because of alleged failure on the part of landlord to supply services, and denied that any additional rent was unpaid. I find as a fact that the rent for four months has not been paid, and that there is no balance due for November 1969.

Tenant asserts that the rental rate is $135 for the apartment, not $156.17. Landlord's position with relation thereto is that the $156.17 figure is the approved F.H.A rental for the five-room apartment in question, and I have no reason to question this fact. The evidence shows, however, that the agreement between tenant and landlord's superintendant was that the apartment would rent for $135 per month. The approved F.H.A. amount is merely the maximum permitted rental and the tenant is not bound thereby. 12 U.S.C.A. § 1747c.

Tenant did not move. However, I take judicial notice that there is a great shortage of housing accommodations in Essex County. Evidence Rule 9(1). Therefore, it would be unreasonable to require tenant to move as a prerequisite to abatement of rent. Marini, supra.

The apartment in question is on the ninth floor of a complex housing 400 tenants, with a large parking area.

Tenant's defenses fall into two categories: first, that landord has failed to provide electric illumination in compliance with a Newark ordinance, for the parking lot, by reason of which the agreement for parking lot fee is illegal and unenforceable; and second, invoking Marini, supra, that landlord has failed, after notice, to supply essential services, rendering the premises uninhabitable, at least in part, entitling tenant to diminution in rent.

The first problem is determined easily. Factually, there is no evidence that landlord has failed to meet the standards set by section 7:424.6 of the Newark Building Code. Legally, the illegality specified affects only peripheral aspects of landlord's performance in supplying parking space. This is not a case where the agreement was made for the purpose of violating a statutory prohibition, as in Brooks v. Cooper, 50 N.J.Eq. 761, 26 A. 978 (E. & A. 1893). Nor is it a case where a housing code explicitly prohibited rental of premises in violation of the code, as in Brown v. Southall Realty Co., 237 A.2d 834 (D.C.App.1968), or where a zoning ordinance prohibited the use of the premises for which it was leased, as in Ober v. Metropolitan Life Ins. Co., 157 Misc. 869, 284 N.Y.S. 966 (N.Y.City Ct.1935); Becerra v. Hochberg, 193 Cal.App.2d 431, 14 Cal.Rptr 101 (D.Ct.App.1961), and Howell v. City of Hamburg Co., 165 Cal. 172, 131 P. 130 (Sup.Ct.1913). Nor is it a case where plaintiff could not recover because he was not licensed for the pursuit for which he sought compensation, as in George H. Weinrott & Co. v. Burlington Housing Corp., 22 N.J.Super. 91, 91 A.2d 660 (Ch.Div.1952). Rather, the facts are that tenant could and did use the parking area, despite the code violation, if any. Indeed, the precise area allotted to tenant was probably well lighted. A more appropriate analogy is Associated Realties Corp. v. Million Dollar Pier Operating Co., 6 N.J.Super. 369, 71 A.2d 545 (App.Div.1950), in which the lease required tenant to use the premises seven days a week in violation of a 'Sunday' law, and it was held that the fact that tenant could operate the premises six days a week overcame the defense of illegality. Accord: Stern Holding Co. v. O'Connor, 119 N.J.L. 291, 196 A. 432 (Sup.Ct.1938). The illegality here was slight; tenant had already gotten the benefit of the parking area, and denial of recovery would amount to forfeiture. In such case landlord should not be denied its price. Restatement, Contracts, § 600, at 1115 (1932). See Rutkowsky v. Bozza, 77 N.J.L. 724, 73 A. 502 (Sup.Ct.1909); Fox v. Rogers, 171 Mass. 546, 50 N.E. 1041 (Sup.Jud.Ct.1898); Phend v. Midwest Engineering & Equipment Co., 93 Ind.App. 165, 177 N.E. 879 (App.Ct.1931).

Whether Marini is authority for tenant's position is more troublesome. Marini involved a two-family house in which tenant rented an apartment by a written lease specifying that the premises be used for no purpose other than a dwelling. There was no specific covenant to repair. The toilet bowl in tenant's apartment leaked. Tenant gave repeated notice to landlord, who failed to repair. Thereupon tenant engaged a plumber, who made the repair at a cost of $85.72. The question was whether tenant could credit this expenditure against the rent in a dispossess proceeding. The trial court held that he could not; the Supreme Court reversed and sent the case back for trial. The Supreme Court ruled:

1. Tenant could raise the issue of diminution in amount of rent due by reason of landlord's failure to supply services in a dispossess proceeding.

2. A covenant that the premises 'were habitable and fit for living' was implied because 'indispensable to carry into effect the purpose of the lease' (56 N.J. at 143, 265 A.2d at 533).

3. Tenant's covenant to pay rent and landlord's covenant of habitability were not necessarily independent, and could be construed as dependent, 'according to the intention of the parties and the good sense of the case' (at 145, 265 A.2d at 534), in the context of a dispossess case. It thus followed the logic of Reste Realty Corp. v. Cooper, 53 N.J. 444, 251 A.2d 268 (1969), where contract concepts of dependency of obligation and failure of consideration were applied in a case in which tenant had been forced to vacate the premises by landlord's failure to perform an implied covenant of habitability.

In my judgment, these basic principles control this case.

Although there is no written agreement, there was an agreement under which the premises were rented, in which the covenant of habitability was implied.

Tenant asserts this was broken because landlord failed to supply heat and water service to a ninth-story apartment; the incinerator did not function, impairing garbage disposal; the hot water supply failed; water leaked into the bathroom; there were defects in venetian blinds; the plaster in the walls was cracked, and the apartment was unpainted. Some of these clearly go to bare living requirements. In a modern society one cannot be expected to live in a multi-storied apartment building without heat, hot water, garbage disposal or elevator service. Failure to supply such things is a breach of the implied covenant of habitability. Malfunction of venetian blinds, water leaks, wall cracks, lack of painting, at least of the magnitude presented here, go to what may be called 'amenities.' Living with lack of painting, water leaks and defective venetian blinds may be unpleasant, aesthetically unsatisfying, but does not come within the category of uninhabitability. Such things will not be considered in diminution of the rent.

It is argued that Marini is restricted to its facts, and is applicable only when tenant has made the repairs; that tenant's choice is to repair or move out. The court's language in Marini is cited:

If, therefore, a landlord fails to make the repairs and replacements of vital facilities necessary to maintain the premises in a livable condition for a period of time adequate to accomplish such repair and replacements, the tenant may cause the same to be done and deduct the cost thereof from future rents. The tenant's recourse to such self-help must be preceded by timely and adequate notice to the landlord of the faulty condition in order to accord him the opportunity to make the necessary replacement or repair. If the tenant is unable to give such notice after a reasonable attempt, he may nonetheless proceed to repair or replace. This does not mean that the tenant is relieved from the payment of rent so long as the landlord fails to repair. The tenant has only the alternative remedies of making the repairs or removing from the premises upon such a constructive eviction. (56 N.J. at 146, 265 A.2d at 535)

This language, however, must be considered in the light of the facts before the court in Marini. On those facts the court granted relief to the tenant. To conclude that on other facts coming within the broad principles enunciated, not only in Marini but in Reste, the tenant may not have relief, would be to place an emphasis on form, technicality and fiction which has long been foreign to this State. Yannuzzi v. United States Casualty Co., 19 N.J. 201, 212, 115 A.2d 557 (1955); Edelstein v. City of Asbury Park, 51 N.J.Super. 368, 143 A.2d 860 (App.Div.1958); Hackensack v. Rubinstein, 37 N.J. 39, 51, 178 A.2d 625 (1962), and many other cases, make that clear in matters of procedure. Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69 (1960); Unico v. Owen, 50 N.J. 101, 232 A.2d 405 (1967); Newmark v. Gimbel's Inc., 54 N.J. 585, 258 A.2d 697 (1969), apply the same principles as to issues of substance.

There was conflicting evidence on the question of notice of defect to landlord, but I find this fact in favor of tenant. The superintendent admitted knowledge of nonfunction of heating system, hot water, elevator...