Can I Withhold Rent for Repairs in New Jersey?

Two New Jersey statutes¹ give tenants the right to withhold rent if a landlord refuses to fix something. For you to be able to do this, the problem must be considered a “substantial violation” of something essential, such as heat, running water, light, electricity, adequate sewage disposal, or something that makes your rental “unfit for human habitation.”

Different municipalities have different health and housing codes, and a “substantial violation” of these codes also gives you the right to withhold rent. Make sure to lookup any city-specific health and housing codes in New Jersey before you start the rent withholding process.

How much rent can I withhold, exactly?

You won't find any specific guidance in New Jersey law for how much rent you can withhold while you're waiting on repairs, but most courts and landlords will expect you to make the decision based on how much of your apartment is rendered unusable by the problem.

Where should I store the rent money I'm withholding?

Some states require you to deposit withheld rent into an escrow account or even directly with the court until the landlord fixes the issue. While New Jersey does not require this, you should definitely set the money aside, because if your landlord tries to evict you for non-payment of rent, you will have to pay the rent to the court on the day of the trial in order to make the habitability defense.

What are the possible outcomes of withholding rent?

You and your landlord come to a private agreement

Ideally, when you withhold the rent, your landlord will realize the seriousness of the situation and work out a private deal with you. If this happens, make sure to get the agreement in writing so that you can use it in court if your landlord still fails to make the repairs.

You reach a settlement before going to trial

If you can’t come to a private agreement, your landlord may try and evict you for non-payment of rent. If this happens, your legal defense will be your landlord’s failure to make the repairs, so you must keep detailed records of the violations and your communications with your landlord. It is extremely important to save the withheld rent because you cannot be evicted for non-payment if you come to court with the missing rent.

If your landlord ends up taking you to court, you may be able to reach a settlement before going to trial, where your landlord will agree to make the repairs for a specified price, and you will agree to pay the remainder, if any.

You argue your case in a rent abatement hearing

If you cannot reach a settlement before trial, you can expect to have a rent abatement hearing, where you will be able to argue your case. The judge has the power to allow you to keep the withheld rent as a cost for the repairs, lower the rent until the repairs are made, or even make your apartment rent-free if the conditions are bad enough.

The judge will generally give you a list of each item that the landlord must repair before returning to regular rent. It is important to bring to the hearing all of your records of communications with your landlord, any pictures or other evidence of violations, as well as any inspection reports that support your case.

If you're thinking about withholding rent in New Jersey, remember that a judge likely wouldn't have a lot of sympathy for you if your issue is a leaky faucet or something of that nature. The precedent-setting 1973 court case in New Jersey² came about because a low-income family was living in a roach-infested apartment without heat and with a sewage backup. If a judge were to decide that your conditions aren't serious enough to be considered a violation of the implied warranty of habitability, they will make you pay back all of the withheld rent.

Next steps

Certain issues may be so serious that you can't wait an entire month for your landlord to notice you're withholding rent. In that case, you may want to consider abandoning the unit altogether—a process known as "constructive eviction."

[1] 2A-42-88 and 2A-42-87

[2] Berzito v. Gambino (1973)