A landlord recently prevailed in an unpublished case involving non-payment of rent during superstorm Sandy.  In Gardens at Maplewood v. Fowlin, ESS, LT 5240-13, the tenant withheld one-half of the rent because he had no lights, heat or hot water as a result of Sandy and claimed that he had no obligation to pay the balance of the rent. 

The issue before Essex County Court Judge Mahlon Fast, was whether the tenant was entitled to a rent abatement.  The tenant’s position was that he should not have to pay for something that he did not receive.  Judge Fast disagreed and concluded that the tenant must pay the unpaid rent by April 15 or a judgment of possession would be entered.

Judge Fast considered three legal issues.  First, the Judge found that the defense of a lack of habitability was not applicable and said, “the power outage was not the fault of the landlord; the landlord was not responsible to restore power; nor was the landlord able to have power restored.”  Judge Fast did not believe “that the landlord would have agreed to have been responsible for the results of a situation such as Sandy” and the Judge found that the conditions in this case were “not the result of any latent defects in facilities nor the result of a fault by the landlord (to maintain or repair) but rather a (hopefully) unique situation unquestionably beyond the power of the landlord to have reasonably avoided or corrected.”

Judge Fast distinguished cases in which landlords have failed to make necessary repairs within a reasonable time, such as Marini v. Ireland, 56 N.J. 130 (1970).  The Judge also cited Chess v. Muhammad, 179 N.J. Super 75 (App. Div. 1981) for the proposition 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.”  And Judge Fast said, “restoration of power …was within the control of the power supplier…rather than the landlord…and I find it unreasonable to expect landlords to have generators installed for unforeseen events, such as Sandy, except, perhaps, in a luxury rental with a corresponding rent.”

Second, Judge Fast found that the concept of impossibility of performance was not applicable and said, “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.”

Third, Judge Fast found that, “there is no legal requirement (and no contractual requirement in this case) that would have compelled plaintiff to have maintained insurance for the benefit of the tenant, to cover the loss sustained as a result of Sandy.”

Although the landlord prevailed in this case, Judge Fast warned, “I can easily conceive of conditions that would justify an abatement because the conditions would substantially and negatively affect the reasonable use and enjoyment of an apartment and because elimination of those conditions would be within the reasonable control of the landlord.”  Additionally, although this case involved a residential lease, all landlords should be aware of this case and carefully review their individual circumstances with experienced counsel in the wake of superstorm Sandy, especially in circumstances where courts may be more apt to apply principles of equity to abate rent.