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We looked at the 40,000 residential eviction proceedings for non-payment of rent that were brought in 2014 in Essex County and found, remarkably, that only 80 of those cases - or 0.0002 percent of all residential eviction actions - had tenants asserting the defense that the premises they inhabited were substandard. (Dan Ivers | NJ Advance Media for NJ.com)
By Paula A. Franzese
Esperanza Menendez-Jackson is a single working mother who lived with her three children in a government subsidized apartment building in Newark. Early into the lease, she discovered that the apartment was infested with bed bugs and was without heat, hot water and a working oven. The one bathroom suffered from a serious mold problem.
She and her children wore layers of heavy clothing and on the coldest nights sought shelter with family and friends. To avoid the spread of bed bugs, the family endured the daily ritual of shedding, bagging and changing their clothes in the hallway each time they exited their home.
Over the course of that tortured year, the landlord did little to address the significant problems and health hazards on site. When Menendez-Jackson finally withheld rent in an attempt to correct the problems herself, the landlord moved to evict her. Throughout the protracted court proceedings, she was ordered to deposit her portion of the rent into court to show her good faith.
Astonishingly, however, during those many months, the landlord continued to receive the lion's share of the $1,800 monthly rent payment from the New Jersey Department of Community Affairs.
In that way, Menendez-Jackson became voiceless. She could continue to protest and assert her claims in court but still the landlord's principal cash flow was not at risk.
For the past year my colleague Abbott Gorin, law student David Guzik and I chronicled the experiences of low-income tenants like Menendez-Jackson in Essex County. Our study will be published this month in the Rutgers Law Review.
We looked at the 40,000 residential eviction proceedings for nonpayment of rent that were brought in 2014 in Essex County and found, remarkably, that only 80 of those cases - or 0.0002 percent of all residential eviction actions -- had tenants asserting the defense that the premises they inhabited were substandard.
That figure is startling, particularly given the far greater statistical likelihood that serious housing code violations exist in rental units in Newark and its vicinity.
That defense to nonpayment of rent, known as "breach of the implied warranty of habitability," is supposed to guarantee residential tenants that the apartments they rent are livable and in good condition.
It was created to give aggrieved tenants who are for example without heat or running water or who are suffering from rodent, bug or mold infestation the right to lawfully withhold rent until the landlord makes the necessary repairs. It is meant to be a defense to an eviction action. Yet, in most cases that guarantee goes unheeded.
Even when represented by counsel, the system is stacked against tenants and the larger aim of improving stocks of affordable housing.
Today the most egregiously derelict landlord is assured a steady and uninterrupted governmental cash flow no matter the tenant's assertion in court. To add insult to injury, every residential tenant named in a nonpayment of rent action faces the very real likelihood that he or she will show up on a "tenant blacklist" or central registry maintained by private agencies that is the equivalent of a miserable credit rating. Tenants placed on that list find themselves denied future renting opportunities.
It is time for significant statutory reform of the landlord-tenant laws in New Jersey.
* A mechanism must be established to allow coordination between housing courts, housing inspectors and state and federal rent subsidizing agencies to stop government cash flow to derelict landlords and instead allow those sums to be applied to preserving and increasing stocks of inhabitable, affordable housing.
* Judges need quick computerized access to the given apartment's rental history and housing inspection reports and the means to alert government subsidizing agencies to landlord noncompliance with housing code standards.
* The practice of "tenant blacklisting" must be hemmed. Tenants identified in reports should also be afforded the opportunity to clear their names.
This is an important moment for needed reform, as the plight of the working poor and those left out of the promise of decent housing come into sharper focus.
Paula Franzese, the Peter W. Rodino professor of law at Seton Hall School of Law, is one of the country's leading experts in property law as well as government ethics.