J.S.
Properties, L.L.C. v. Brown and Filson, Inc., 2006 WL 3780560
(N.J. Super.
App. Div. 2006); December 27, 2006.
Tenant
complained that
the roof over its premises leaked repeatedly. It and its landlord
entered
into a settlement agreement whereby Tenant was permitted to deduct, from
the
rent owed, the cost of its repairs and lost merchandise due to the
leaks.
When the lease expired, the parties entered into a new lease that
incorporated
the terms of the prior settlement with respect to roof leaks.
After the
roof continued to leak, the landlord replaced the roof and sued Tenant
for
unpaid rent. The amount of unpaid rent represented the amount of
Tenant=s
deductions for leak-related damages. The matter was removed from
landlord-tenant court to the Law Division on Tenants motion,
and Tenant filed
an answer and counterclaim.
Six months
later, Tenant vacated the premises, returned the keys, and amended its
counterclaim to add a claim that the landlord deprived it of its right
of quiet
enjoyment and that the premises unsuitability for the purposes
for which it was
leased constituted Tenants construction eviction from the
premises. The
lower court dismissed Tenants constructive eviction claim,
noting that
the roof repairs had been completed more than a year before Tenant
vacated the
premises, and that Tenants decision to vacate after the roof
was replaced, and
not during the many times the roof leaked prior to its replacement, was
unreasonable. The lower court did not address Tenants
claim that it was
constructively evicted based on the landlords filing of the
eviction
suit.
On appeal,
the Appellate Division agreed that Tenant=s decision to vacate
more than one
year after the roof was replaced was unreasonable, but the Court did not
decide
whether a tenant can claim constructive eviction based on the
landlords filing
of an eviction suit. The Court noted that in jurisdictions that
recognize
such a claim, it is generally understood that the mere filing of the
eviction
suit is not sufficient, and that there must be substantial and repeated
acts of
bad faith and malice by the landlord in order for a tenant to
prevail.
The Court
found that even if New Jersey common law should recognize a claim for
constructive eviction based on a landlord=s malicious filing of =
an eviction
suit, such a claim would not succeed in this case based on the
tenant=s
actions. It noted that the tenant did not leave when the suit was
filed,
but rather fought the eviction for more than six months before
leaving. To
the Court, that delay was unreasonable. It held that even if the
tenant
could file a claim for constructive eviction, its case failed due to the
tenant=s unreasonable occupation of the premises for more than
six months after
the eviction suit was filed.
Comment 1:
What would have happened if the landlord had wrongfully demanded that
the tenant
leave the premises for nonpayment of rent, and the tenant did leave, but
then
thought better of its decision and claimed that the landlord had no
right to
demand possession? Here, very likely, wed have an actual
eviction.
Dont need to call it =E2=80=9Cconstructive,=E2=80=9D and
presumably the tenant would have
damages? Or would it be denied damages on the grounds that it
should have
resisted the landlords demands in the first instance?
Hmmmmm.
Comment 2:
There have been a few cases in which a tenant has been able to raise a
commercial retaliatory eviction claim based upon the tenant=s
public objection
to aspects of the landlords conduct pertaining to the
lease. See,
e.g. Port of Longview v. International Raw Materials, Ltd., 979
P.2d 917
(Wash. App. 1999) (DIRT DD for1/ 26/00) (Tenant of government-operated
port
facility can raise, as an affirmative defense to eviction, argument that
port
authority was evicting it in retaliation for exercise of right to free
speech.)
Also see Windward Partners v. Santos, 577 P.2d 326 (Haw. 1978)
(retaliation for
participating in a zoning hearing contrary to landlords
interest).
The doctrine is discussed generally in the Randolph Edition of Friedman
on
Leases at Section 14.7.1. In 1266 Apartment Corp. v. New
Horizon
Deli, Inc., 368 N.J. Super. 456, 847 A.2d 9 (App. Div. 2004) (the DIRT
DD for
9/28/04), a New Jersey court found that the concept was not quite ready
for
prime tim
e in New Jersey. It held that the claim is not available where the landlord allegedly retaliated against a tenant who filed a personal injury action against the landlord.
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