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New Jersey Department of Community Affairs

Division of Codes and Standards

Landlord-Tenant Information Service

HABITABILITY BULLETIN

Updated September 2022

This bulletin provides basic information about the responsibilities of landlords and tenants for

maintaining rental units. Many citizens of the State reside in dwelling units that fail to meet

minimum standards of safety and sanitation. Tenants have a right to safe, sanitary and habitable

housing in New Jersey. This bulletin is for informational purposes only and should not be used

for legal interpretations or legal advice. Please consult an attorney for legal services and advice

when necessary.

Habitability

Tenants have the right to safe, sanitary and decent housing. Residential leases carry an “implied

warranty of habitability.” This means that a landlord has a duty to maintain the rental unit and

keep it fit for residential purposes throughout the entire term of the lease and that the landlord

must repair damage to vital facilities. The tenant is responsible for maintaining and returning the

property to the landlord in the same condition that the tenant received it, except for normal wear

and tear.

Note: Where damage has been caused by malicious or abnormal use by the tenant, the tenant

is responsible for the repair.

Reporting housing code violations

All buildings with three or more rental units must comply with the regulations for the

Maintenance of Hotels and Multiple Dwellings and must be registered with the Bureau of

Housing Inspection. The Bureau of Housing Inspection is the enforcement agency for housing

code violations in buildings with three or more rental units. To file a complaint contact

the Bureau of Housing Inspection at (609) 633-6227 or [email protected].

Multiple dwelling units are required to be inspected periodically. One and two unit buildings

do not fall under the jurisdiction of the Bureau of Housing Inspection. One and two unit

buildings that are not owner-occupied must comply with any applicable local ordinances and

must register with the Clerk in the municipality in which the residential property is located. No

registration is required for owner occupied two family houses. When the heating equipment in

a residential unit fails and the landlord does not take appropriate action after receiving proper

notice from the tenant, the local board of health may act as agent for the landlord and order

the repairs to fix the equipment. Evictions cannot be filed unless the rental property is

registered.

NOTE: THE LOCAL HEALTH AGENCY IN YOUR MUNICIPALITY SHOULD BE

CALLED FOR LACK OF HEAT AND HOT WATER. LOCAL AGENCIES RESPONSIBLE

FOR HOUSING INSPECTIONS SHOULD BE CALLED FOR UNINHABITABLE

STRUCTURAL CONDITIONS.

Remedies if the landlord fails to maintain the property in a habitable condition

If the landlord does not keep the premises in a habitable condition, a tenant may repair any vital

deficiencies and deduct the amount of the repair from the rent. The landlord’s failure to maintain

the property could also lead to what is called a constructive eviction by the tenant. (See below for

explanation) The tenant may seek rent abatement (a reduction in rent) or withhold the rent or a

portion of the rent.

Before applying the remedies of repair and deduct, constructive eviction, rent abatement or

withholding the rent or a portion of the rent, the following must apply:

1. The defect must be of a “vital facility.” Vital facilities are those things necessary to make

the rental unit habitable. Examples of defects to vital facilities include: broken toilets,

no hot or cold water, lack of heat or electricity or broken windows.

2. The tenant must not have caused the condition.

3. The tenant must have notified the landlord that the deficient condition existed and

allowed the landlord adequate time to fix the defect. Notice should be given in writing

and by certified mail, return receipt requested.

1. Repair and deduct

Marini v. Ireland, 56 N.J. 130 authorized the self-help remedy of repair and deduct. A

tenant may repair vital facilities deficiencies and deduct the amount of the repair from the

rent.

2. Constructive eviction

Constructive eviction means that a tenant may break the lease without penalties because

the landlord is guilty of neglect or default, which makes the premises unsafe, unfit or

unsuitable for occupancy. Reste Realty v. Cooper, 53 N.J. 446, established the

foundation for constructive eviction.

If a tenant invokes the remedy of constructive eviction, and the landlord is found to be

negligent in maintaining the rental unit, the tenant is entitled to the return of the security

deposit and is not responsible for the rent for the balance of the lease or the cost of re-

renting the property.

3. Rent abatement (reduction)

Upon entering into a lease, the tenant’s promise to pay rent and the landlord’s warranty of

habitability are dependent. In Berzito v. Gambino, 63 N.J. 460, the court held that a

tenant claiming that the landlord did not maintain the property in a habitable condition

may initiate an action to recover all or part of the deposit paid when the lease was

finalized or all of the rent paid. If the court finds that the landlord did not maintain the

property in a habitable condition, the tenant will be charged only with the reasonable

rental value of the property in its imperfect condition during the tenancy.

4. Withholding the rent or a portion of the rent

If the landlord breaches his obligation of maintaining the property at an adequate

standard of habitability, a tenant may withhold the rent or a portion of the rent to be used

as a set-off, because of the deficient condition. If the landlord institutes an eviction

proceeding for non-payment of rent, the tenant is entitled to use the landlord’s breach of

his obligation to provide a habitable residence as a defense and justification for the set-off

(deduction of rental payment).

5. Rent Receivership

The law promoting safe and sanitary housing for tenants of substandard dwellings

(N.J.S.A. 2A:42-85, et seq.) was enacted after the Berzito decision. The law authorizes

tenants in substandard dwelling units to deposit their rents with a court-appointed

administrator for use in remedying defective conditions. If there is a difference in the

market value of the premises in its defective condition and the amount of rent that the

tenant paid to the court administrator, the tenant may be entitled to a rent abatement and

may only be charged the reasonable rental value of the property in its imperfect

condition. To use this remedy, a tenant or housing inspector may file a complaint in the

court of the municipality in which the property is located.

In the case of Park Hill Terrace v. Glennon, Mitnick, and Stoff, 146 N.J. Super. 68, the court

held that air conditioning was a part of the original tenancy and that its failure affected the

habitability of the premises.

Note: Not every defect or inconvenience is considered a breach of the warranty of habitability.

Each case must be judged on it own facts. To avoid eviction, any rent withheld by the tenant

should be saved and accessible in case the court requires the tenant to pay the outstanding

rent.

In emergency situations created by the landlord or resulting from his negligence, the landlord

may be responsible to bear a tenant’s expenses in obtaining alternative housing during the

emergency. Expenses may be deducted from the rent. However, the expenses must be

reasonable.

Utility requirements

From October 1st to May 15th, the rental premises shall be maintained at a temperature of at

least 68 degrees Fahrenheit between the hours of 6:00 a.m. and 11:00 p.m.; between the hours

of 11:00 p.m. and 6:00 a.m. the rental premises shall be maintained at a temperature of at least

65 degrees Fahrenheit. The hot water temperature should be maintained at a minimum of 120

degrees and a maximum of a 160 degrees Fahrenheit.

Utility companies are prohibited from shutting off utilities in tenant-occupied buildings whose

owners have failed to make payments, without first notifying the tenant of the impending

disconnection. Before disconnecting utility services, the utility company must give the tenant an

opportunity to agree to make future payments.

Paint requirements

Interior walls, ceilings and other exposed surfaces in rental units must be kept smooth, clean, free

of flaking, loose or peeling paint, plaster or paper and maintained in a sanitary condition.

Painting or other protective coatings are the responsibility of the occupant, not the landlord when

required more than once every three years, as a result of acts or omissions of the tenant. (Rental

units are not required to be painted between tenants.)

Landlords of certain types of buildings must notify prospective tenants of lead-based paint

hazards in the dwelling they wish to rent and provide them with information about the

identification and control of such hazards. If the dwelling was built before 1978, contains

bedrooms and is to be rented for more than 100 days, the landlord must provide tenants with an

information pamphlet entitled “Protect Your Family from Lead in Your Home”. Also, the lease

agreement must include a federal disclosure form about lead-based paint or lead based hazards in

the property and any lead evaluation reports must be attached to the form. The landlord may be

unaware of a lead hazard, however, that does not mean that one does not exist. A local board of

health has the authority to order the removal of lead paint from the interior of a dwelling unit

when it causes a danger to occupants.

Housing for the elderly or persons with disabilities are exempt from this disclosure requirement

unless a child under the age of six resides with such persons. For additional information and to

order a copy of the pamphlet, contact the National Lead Information Center at (800) 424-

5323(LEAD) or (800) 526-5456 for the hearing impaired. For bulk copies call (202) 512-1800.

Requests can be faxed to (202) 659-1192. Information can also be found on the HUD Office of

Healthy Homes and Lead Hazard Control website, which is:

http://www.hud.gov/offices/lead/index.cfm.

Screens and window guards

Screens suited to protect the interior of the building against insects must be provided and kept in

good repair for each exterior door, except exterior doors which do not provide ventilation.

Screens shall also be provided, maintained and installed for each openable window in living and

common areas. Screens are not required for units or common areas on the 6

floor or above.

Screens shall be provided from at least May 1 to October 1 of each year, where required.

The Hotel and Multiple Dwelling regulations provide that upon written request by a tenant of a

unit in which a child 10 years of age or younger resides, the landlord must provide, install and

maintain approved child protection window guards on the windows of the dwelling unit and on

any accessible windows in the public halls. This requirement does not apply to windows which

give access to a fire escape or which are located on the first floor. Nor does this requirement

apply to owner-occupied units, condominiums or cooperatives.

Leases must contain a notice advising tenants that, upon written request by the tenant, the owner

is required to provide, install and maintain window guards in dwelling units with children 10

years of age or younger. In addition, yearly written notices must be given to tenants informing

them of the window guard regulation. Landlords are not required to offer window guards for

first floor units.

The regulations for the Maintenance of Hotels and Multiple Dwellings are available for

download from the Bureau of Housing Inspection website at:

(https://www.nj.gov/dca/divisions/codes/offices/housinginspection.html)

HUD or subsidized housing

Housing code violations in federally subsidized housing fall under the jurisdiction of the

Department of Housing and Urban Development, New Jersey State Office, 1 Newark Center

Street, 12

floor, Newark, New Jersey 07102-5260 or call (973) 622-7900.