Monday, May 16, 2011

Taking a dump in a dump is not as fun as you'd think



Many tenants in New Jersey find themselves living in rental units with unacceptable problems. The most common problem I see is mold, but there are all kinds of issues, ranging from insufficient heat to sewage bubbling through the front lawn. I swear that some areas like Browns [sic] Mills in Burlington County were built on top of underground shit springs, waiting to spew little fecal eruptions. Browns Mills also has more mold per inch than Roquefort cheese. In fact, Browns Mills is a place I would probably avoid. In any event, problems that affect living conditions are called "habitability issues," and New Jersey tenants have the right to have those problems corrected.

Unfortunately, most tenants do not know what to do. I am hoping that maybe by sticking this out there on the Internets (all of them), people can locate this guide through one of several tubes that connect to their computer. I'm not here to advise people what to do, but hopefully the information can warn people if they are about to do something damaging rather than helpful.

Traditionally, tenants decide not to pay the rent because they are tired of living in a craphole. The landlord responds by filing a Complaint for Eviction on the grounds of non-payment of rent, and the tenants are flabbergasted when the landlord is successful. "Doesn't anyone care?," they wonder. "I had to live in terrible conditions!"

The Judge would care...had they followed the right procedures.

The first thing tenants need to do is notify the landlord. Invariably, the landlord will not adequately address the problem if they even attempt to fix it at all. The next step is to send a letter to the landlord.

The traditional way to send a letter is to type something and mail it. If you've ever seen a professional letter before, it has such things as letterhead, the date, names, a signature, etc. The letter to the landlord should also have these things. It should have the tenant's name and address, the landlord's name and address, the (correct) date the tenant sent the letter, and an actual signature. The tenant's signature.

The next step is to make a photocopy of the signed letter. The tenant should keep this letter.

The third step is to send the original letter via certified mail, return receipt requested. The tenant should keep the certified mail receipt (with the date stamp) stapled or paper clipped to the photocopied letter. When the green return receipt is sent back to the tenant, that should be put with the letter and the first receipt. The tenant should keep these. These are important. DO NOT LOSE THESE. If a tenant was thinking of losing them, that would be a bad idea.

I imagine that if someone is reading this, they may make a query. "Can I send an email in lieu of a letter?" Sure, the tenant could send an electronic message via Yahoo or Gmail or other email service, and it will save the tenant a few of the above steps, but the tenant will still need to print a copy of the email. The tenant also runs the risk of the landlord claiming he or she never got the email (spam filters can be voracious, you know). If it was me, I would send an actual letter. I know it can cost around five dollars to send a certified letter with return receipt requested, but as Edward Topsell wrote, "if by covetousnesse or negligence, one [doesn't cough up five bucks], he shall be penny wise, and pound foolish."

As for the content of the letter, the tenant needs to specify what the problems are and that the tenant would like them fixed as soon as possible. Keep in mind this is not a manifesto. This is also not a declaration of all the harms the tenant has suffered at the hands of the landlord, real or imagined. The tenant is just describing the problems and asking that they be corrected. Proper spelling and grammar are beneficial but not required. However, poor writing makes people sound like idiots. It also may hurt credibility.

After a reasonable amount of time (1-2 weeks unless the problem is severe and a major detriment to health), if the landlord still has not fixed the problem, the tenant is facing three options. The first is to let the issue drop and live in the company of squirrels or take a shower that sprays brown water. The second is for the tenant to make the repairs herself and deduct the cost of repairs from her rent. The third is to start withholding rent.

If the tenant decides to make the repairs himself or to hire someone to make the repairs, the tenant needs to keep all of the receipts. This is critical. Once the repairs are finished, the tenant should send another letter via certified mail (yes, again) explaining what was done and including photocopies of the receipts. If the landlord takes the tenant to Court, the aforementioned documentation will be the difference between victory and eviction. Keep in mind, however, that the tenant can only deduct for serious repairs. If the tenant clogs the toilet with used tampons and she then buys a plunger, that's really on her. If the tenant has to buy a new fridge because the old one was from the first Bush administration and it died of old age, then the tenant is probably justified. Of course, it will ultimately rest with the judgment of the, uh, Judge.

Moving on to the third option, if the tenant decides to withhold rent, he needs to send a letter to the landlord before the rent is due stating that the tenant is withholding the money until the repairs are made. This next piece of information is vitally important: the tenant must not spend a single cent of that money. The tenant MUST keep it. All of it. It doesn't matter if the tenant needs to make a repair to her car or the tenant needs to bail his son out of jail. I make my clients turn their money over to me to put into my firm's client trust account. That may, I can verify the entire amount of money is withheld. The reason for this is that if a tenant is sued by the landlord for non-payment of rent, the only way the tenant can get a habitability hearing is to post the full amount of money. If the full amount, every cent, is not provided to the Court to hold pending outcome of the trial, then the tenant will be evicted, even if rats come out every night and bite toes. It doesn't matter even if the rats bite the cute piggy toe.

On the plus side, if the Judge rules in the tenant's favor, then the tenant may get a rent abatement. That means the tenant may get to keep some (or all) of the withheld rent money as compensation for the terrible conditions the tenant was living in. Some people might save that money for a rainy day, but others will spend it on booze and tattoos. It's all a matter of personal preference.

Withholding the rent money is usually a better idea for most tenants than the option of "repair and deduct," as repairs can be costly. Tenants are also not always suited to do the repairs or hire the right people to do the repairs. Furthermore, if a Judge determines that it is not a habitability issue, the tenant still has the money to pay the rent and avoid eviction.

If you read the above (and live in New Jersey) and you think you may have a habitability problem, you have the right to consult an attorney. Every county has a Lawyer Referral Service, and if you are low income, you can always contact a legal services program. Important: none of the above should be seen as inviting or encouraging an attorney-client relationship between you and I. Every case is unique, and I am only presenting general information. I am NOT presenting legal advice. I don't know anything about your case, nor do I care to know anything about your case (unless you find your way to my office, that's a different story). I'm serious here - I am not making any promises that if you follow the above information perfectly that you will be successful. In the same way you shouldn't operate on yourself after reading WebMD, you should probably consult a legal professional.

1 comment:

Gorilla Bananas said...

I am NOT presenting legal advice.

Heh! Spoken like a true professional who knows how to cover his butt! Whatever you presented would be very useful to many tenants - I hope there are enough keywords to get this into some google searches.