PENNY POINT PARK APARTMENTS v. BERNICE BARNES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2754-06T52754-06T5

PENNY POINT PARK APARTMENTS,

Plaintiff-Appellant,

v.

BERNICE BARNES,

Defendant-Respondent.

_________________________________

 

Argued October 22, 2007 - Decided

Before Judges Parrillo and Graves.

On appeal from the Superior Court of New Jersey,

Law Division, Special Civil Part, Atlantic County, Docket No. LT-5234-06.

Dale W. Keith argued the cause for appellant

(Grimes & Grimes, L.L.C., attorneys; Mr. Keith, on the brief).

James M. McClain argued the cause for respondent

(South Jersey Legal Services, Inc., attorney; Mr. McClain, of counsel and on the brief; Kenneth M. Goldman, on the brief).

PER CURIAM

Plaintiff Penny Point Park Apartments (plaintiff or landlord) appeals from the December 15, 2006 order of the Special Civil Part dismissing its summary dispossess action and granting defendant tenant, Bernice Barnes, a habitability credit retroactive from September 2006 until plaintiff provides proof from the municipal police or health department that the odor complained of no longer exists in defendant's apartment. As modified to allow competent proof from any independent third party source, we affirm the December 15, 2006 order as well as the subsequent order of March 2, 2007 denying plaintiff's motion to vacate the former.

Defendant is a tenant residing in a ground floor one-bedroom unit at plaintiff's privately owned, federally subsidized, multi-family apartment complex in Egg Harbor Township. She has lived in the development for the past fourteen years and her rent, after subsidy, is $248 per month, which represents thirty percent of her adjusted gross monthly income according to the United States Department of Housing and Urban Development (HUD) regulations.

Shortly after transferring from her two-bedroom unit in April 2005, defendant began experiencing problems in her new apartment with her upstairs neighbor. The most serious problem was a strong odor like plastic burning or smoking crack cocaine. The fumes coming into her apartment were "overpowering" and "every day," and in fact, defendant had to temporarily move out of her apartment and into a hotel for a few days in September 2006. Her sister, who had visited the apartment around the same time, also noticed the odor, which she described as a "horrible smell," even when the windows were opened.

When defendant first noticed the odor, she wrote a letter to plaintiff's representative in May 2005, and then complained to the site manager that her upstairs neighbor put trash in front of her front door. In a letter dated September 4, 2006, she informed plaintiff of fumes emanating from the upstairs apartment. When the situation remained unremedied, defendant withheld her rent for the months of September through December.

Consequently, in November 2006, plaintiff filed suit for eviction. Defendant asserted a habitability defense and upon her deposit of the disputed rent - $992 - the matter was scheduled for trial, which was held on December 15, 2006. At the conclusion of the evidence, the Special Civil Part judge credited defendant's testimony, finding that she notified plaintiff of the fumes prior to withholding rent and that this condition breached the implied warranty of habitability, meriting a rent abatement. The judge concluded:

The issue presented is whether from basically September 1st to the present there is a condition in the tenant's apartment which substantially affects the livability and/or the safety. The one issue is not an issue, and that is the point of notice. The landlord agrees that they received a letter and were on notice of the tenant's complaints, not to (indiscernible), but at least they were on notice.

. . . .

When I review the weight of the evidence, which is the testimony of the tenant as well as her sister . . . , it's clear to me that at least during that entire period when they were there which was obviously more than [the maintenance man] was there, there is some type of acid or plastic burning smell, which the Court can take judicial notice of is akin to the use of crack cocaine.

I find that there is a condition which substantially affects the livability of the unit. I find that the testimony of the plaintiff [sic] is credible as to the existence of the condition . . . . I find that she has given notice to the landlord

. . . [and] the one appearance in her apartment on a Wednesday most recently is not a sufficient response.

Accordingly, the judge ordered a reduction in defendant's rent to $100 per month, retroactive to September and continuing until plaintiff submits reports from either the police or health department verifying from at least two visits in one week that the condition has been corrected.

On appeal, plaintiff raises the following issues:

I. The defendant did not meet her obligation to notice the landlord of the defect and allow the landlord a reasonable period of time to make repairs.

II. Judge Kane erred when he required the plaintiff to prove there was no smell rather than the defendant prove the existence of a smell.

III. The granting of future rent abatements was not proper and should be reversed. (THIS POINT WAS NOT PRESENTED BELOW)

IV. The tenant is a Section 8 tenant who is required to pay 30% of her income towards her rent. A portion of rent abatement should be credited to the subsidizing agency and not to the tenant. (THIS POINT WAS NOT PRESENTED BELOW)

We are satisfied that these issues lack merit. R. 2:11-3(e)(1)(E). Suffice it to say, the trial judge's findings as to notice, habitability and extent of rent abatement are all supported by sufficient credible evidence in the record, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); C.F. Seabrook Co. v. Beck, 174 N.J. Super. 577, 596 (App. Div. 1980), and, because substantially influenced by his opportunity to assess the credibility of the witnesses who testified, deserving of our utmost deference. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). Indeed, plaintiff's counsel at trial acknowledged his client's awareness of the problems defendant was experiencing with her upstairs neighbor prior to this eviction lawsuit.

We are equally satisfied that the court's award of a continuing rent abatement until correction of the "fume" problem was an appropriate equitable remedy, Berzito v. Gambino, 63 N.J. 460, 469 (1973); Timber Ridge Town House v. Dietz, 133 N.J. Super. 577, 584 (Law Div. 1975), and a proper exercise of its inherent discretion. Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996); Goodyear Tire & Rubber Co. v. Kin Props., Inc., 276 N.J. Super. 96, 106 (App. Div.), certif. denied, 139 N.J. 290 (1994); Drew v. Pullen, 172 N.J. Super. 570, 577 (App. Div. 1980). Plaintiff's reliance on C.F. Seabrook Co. and Fargo Realty, Inc. v. Harris, 173 N.J. Super. 262 (App. Div. 1980), to suggest the contrary is misplaced inasmuch as those cases did not involve a prospective rent abatement, but rather a retroactive rate abatement for the months before any rent was unpaid. C.F. Seabrook Co., supra, 174 N.J. Super. at 589; Fargo Realty, Inc., supra, 173 N.J. Super. at 267.

With regard to plaintiff's agreement that any rent abatement should be credited to HUD, the subsidizing agency, we simply note that rent abatements for breaches of the implied warranty of habitability may be properly awarded to tenants of federally subsidized housing developments. See Hous. Auth. of Newark v. Scott, 137 N.J. Super. 110, 115 (App. Div. 1975). As we stated in Scott:

But to deprive a tenant of an offset to the extent that the habitability of the premises has been substantially diminished would result in a diminution of the subsidy intended to be furnished and a diminution of the housing authority's incentive to remedy defects and deficiencies. Accordingly, we conclude that an abatement in rent equal to the proportionate loss of habitability is an effective remedy which may be afforded to tenants of public housing.

[Ibid.]

This view accords with those of sister states. See, e.g., Anderson v. Abidoye, 824 A.2d 42, 44 (D.C. 2003); Cruz Mgmt. Co., Inc. v. Wideman, 633 N.E.2d 384, 388 (Mass. 1994); Committed Cmty. Assocs. v. Croswell, 659 N.Y.S.2d 691, 693 (N.Y. App. Term 1997), aff'd sub nom. In re Committed Cmty. Assocs. v. Croswell, 673 N.Y.S.2d 708 (N.Y. App. Div. 1998). Contrary to plaintiff's position, we see no reason to deprive federally-subsidized tenants in New Jersey of the same rights as tenants in market-rate apartments to effectively assert breaches of the implied warranty of habitability as a defense in eviction actions.

One final note. Although we find no error in the prospective nature of the remedy imposed, we do take issue with the method of verification dictated by the trial judge. On this score, we see no reason to limit the proofs corroborating correction of the fume problem to official reports of the police or health department twice within the same week. In our view, the requisite verification may be satisfied upon submission of a report from an appropriately credentialed independent third party source, acceptable to both parties, and, if not, selected by the court, verifying that the fume problem has been eliminated.

 
Except as modified on remand consistent with this opinion, the order of December 15, 2006 is affirmed in all other respects. We do not retain jurisdiction.

(continued)

(continued)

8

A-2754-06T5

November 8, 2007