Tenants Who Don’t Act Quickly On Claims For Breach Of Implied Warranty of Habitability Risk Being Left Out In The Cold

by:  Gregory S. Ricciardi

On May 15, 2012, the Appellate Division handed down its decision in Vitiello v. Marques, a commercial landlord tenant dispute.  The case involved a claim for constructive eviction, wherein the Plaintiff alleged that the leased premises was “exceptionally cold” as a result of a failing heater and cracked window frames, all of which the Landlord allegedly refused to repair.  As a result of the cold, the Plaintiff declared that the premises were uninhabitable, except that the tenant waited until the summer to actually vacate the premises.   The trial judge ruled and the appellate division affirmed that Plaintiff failed to establish the “factual predicate for constructive eviction.”   Relying on Reste Realty Corp. v. Cooper, the benchmark New Jersey Supreme Court Case on constructive eviction, the court reasoned that the plaintiff failed to prove that the Landlord’s conduct substantially interfered with the tenant’s use and enjoyment of the premises, such that departure from the property was justified. The second element of a constructive eviction claim is that the tenant must actually vacate the premises within a reasonable time after the conditions rendering the property inhabitable arise.

The takeaway for tenants in this case is to act quickly and decisively  if constructive eviction is the basis for which the tenant withholds rent or seeks to terminate a lease.  Hollow complaints and chilly inconvenience are no match for a well drafted, landlord protective lease.  Although the failure of a HVAC system may be the basis for a constructive eviction claim, do not wait until the summer to vacate the premises because the heat is not working, unless of course you live in Alaska.