Tenants seeking a rent break for building services interrupted by Hurricane Sandy got bad news Monday as an Essex County judge ruled the outages were “unquestionably beyond the power of the landlord to have reasonably avoided or corrected.”
“Restoration of power was within the control of the power supplier, rather than the landlord,” Superior Court Judge Mahlon Fast said, denying a rent abatement in Gardens at Maplewood v. Fowlin, ESS LT 5240-13.
According to the opinion, Ronald Fowlin withheld half his $1,495 rent for last November, citing his lack of lights, heat and hot water for two weeks. The owner of the Gardens at Maplewood apartment complex, filed for eviction based on nonpayment of $857.50, which included a late charge, attorney fees and court costs.
Fowlin contended the implied covenant of habitability entitled him to an allowance for the apartment’s condition. He cited Marini v. Ireland, 56 N.J. 130 (1970), which held that a tenant may receive an allowance for certain conditions found to be the landlord’s fault or responsibility.
But Fast said the conditions in Fowlin’s case were not a result of a latent defect in the facilities or the landlord’s failure to make repairs.
Fowlin also cited Chess v. Muhammad, 179 N.J. Super. 75 (App. Div. 1981), which said that “even the most diligent landlord cannot prevent occasional interruptions in the livability of rented premises, whether due to the breakdown of mechanical facilities or sudden acts of nature.”
Fast said Chess also noted that tenants’ remedies are limited to cases in which the landlord failed to make repairs within a reasonable time.
“I know of no case allowing relief to a tenant because of a loss attributable to an act beyond the reasonable control of a landlord,” Fast wrote, ordering Fowlin to remit the unpaid amount by April 15 or face a judgment for possession.
Fowlin’s lawyer, South Orange solo Stanley Varon, says the case was wrongly decided.
The landlord’s lawyer, Angela Gurrera of Feinstein, Raiss, Kelin & Booker in West Orange, says that although many people lost power after Sandy, she is not aware of other tenants seeking a rent credit on that basis.
Bruce Gudin, counsel to the New Jersey Property Owners Association, says both sides presented compelling arguments but Fast drew from precedent in holding a landlord is not liable.
Gudin, who was not involved in the case, is with Ehrlich, Petriello, Gudin & Plaza in Newark.