By Derek D. Reed, Esq. & Bruce E. Gudin, Esq. of Levy Ehrlich & Petriello, PC
A written lease agreement is a road map for any tenancy. It sets forth the terms, specifies the rent and encompasses a wide range of responsibilities to which a tenant is required to conform. However, as Landlords we may have a tenant occupying a rental premises without a written lease agreement. This is not uncommon. While oral leases are legally enforceable in New Jersey, the terms of the tenancy may be left open to interpretation, which is never a desirable position for a landlord, especially when there is a dispute with the tenant.
Nonetheless, a landlord with an oral lease may turn to the New Jersey Administrative Code (“N.J.A.C.”) to determine what “rules” or “duties” a tenant is required to obey. This little known section of the N.J.A.C. clearly defines general duties of occupants relative to residential tenancies. N.J.A.C. 5:10-4.1, et seq, states in relevant part:
5:10-4.2 Discontinuation of services
(a) No person shall intentionally cause any service, facility, equipment or utility which is required to be supplied under this chapter to be removed, shut off or discontinued, or knowingly allow such condition to continue, when the condition affects any occupied unit of dwelling space.
1. This section shall not be applicable to such temporary interruption as may be necessary when actual repairs or alterations are in process or during temporary emergencies when discontinuance of services is caused by any public utility or public agency or is approved by the bureau.
(b) In the event of any discontinuation of services, repairs shall be performed expeditiously to minimize inconvenience to occupants and, to the greatest extent possible, temporary or alternate service shall be provided until permanent service can be restored.
5:10-5.1 Responsibility of occupants
(a) An occupant shall in addition to complying with all provisions of this chapter applicable to him, be responsible for violations of this chapter to the extent that he has the power to prevent the occurrence of a violation or assist in abating the violation. An occupant has the power to prevent the occurrence of a violation if:
1. It is caused by his own willful act or the willful act of a member of his family or household, or of his guest; or
2. It is the result of his gross negligence, neglect or abuse, or the gross negligence, neglect or abuse of a member of his family or household, or his guest.
(b) The occupant, any member of his family or household, or his guest shall, with respect to the public parts of the premises, be liable if a violation is caused by his own willful act, gross negligence, neglect or abuse.
(c) Every occupant of each unit of dwelling space shall give the owner thereof or his agent or employees access to any part of the unit of dwelling space upon reasonable notification, which under ordinary circumstances shall be one day for multiple dwellings, except immediately for hotels, for the purpose of making such inspection and such repairs or alterations as are necessary to effect compliance with the law and this chapter. In case of safety or structural emergencies immediate access shall be given.
(d) All items stored by occupants in any area provided for common storage by occupants of more than one unit of dwelling space shall bear the name and dwelling unit number of the occupant storing the said item or items. It shall be the responsibility of the occupant to label each item and maintain it labeled. Materials stored in such areas shall be secured against becoming sources of infestation and shall not be placed so as to create a hazard.
5:10-5.2 Reporting of violations
Upon discovery by an occupant of any conditions on the premises, failure of service, or defect in any equipment, which constitutes a violation hereof, the occupant shall report same promptly to the owner or to the superintendent having charge of the premises.
5:10-5.3 Prohibited acts
(a) No occupant or other person shall:
1. Create or maintain any condition constituting a violation of the Uniform Fire Code, N.J.A.C. 5:70;
2. Take down, obscure, alter, destroy, or in any way deface any notice, certificate or sign required by this chapter to be displayed; or
3. Destroy or damage protective equipment.
5:10-5.4 Unsafe and unsanitary conditions
(a) Occupants shall place all garbage within the receptacles provided for garbage disposal. Where janitorial service is not required, they shall place all containers with sufficient frequency to avoid an insanitary accumulation in the exterior area or areas set aside for the same. Garbage, rubbish and other refuse shall not be thrown out of windows or down dumbwaiters, nor shall garbage and refuse be set out on stairways or fire escapes or in common hallways.
(b) Occupants of each unit of dwelling space shall be responsible to the extent of their own use and activities for keeping the interior thereof safe and sanitary. Occupants shall prevent any accumulation of garbage or waste matter which may become a source of infestation.
(c) Every occupant shall maintain all plumbing fixtures used by him in a clean and sanitary condition, shall not deposit any material in any fixture or sewer system which would cause stoppage of or damage to properly maintained fixture or sewer systems and shall be responsible for the exercise of reasonable care in the proper use and operation of such fixtures.
(d) Occupants shall not damage, remove or destroy screens needed for the building.
(e) Every occupant of any unit of dwelling space shall be responsible for removing conditions resulting from the occupants own activities or which may result in infestation conditions which are subject to and under his exclusive control.
(f) No occupant shall cause excessive grease, soot or other foreign matter to accumulate on side walls, ceilings or other exposed room surfaces by improper use of heating or cooking equipment. Cooking equipment shall be kept clean, free of garbage, food particles and grease.
5:10-5.5 Willful damage
Every occupant shall be liable for willfully or maliciously causing damage to any part of the premises which results in a violation of this chapter. Any adult occupants shall be responsible and liable for any violation of this section caused by minors under their care or custody occupying the same unit of dwelling space if the violations were created or permitted to continue with the knowledge or acquiescence or consent of said adult member.
5:10-5.6 Heating by occupant
(a) Where any occupant undertakes by contract, or as a condition of his lease to supply his own heat through a furnace or boiler which also heats any unit of dwelling space occupied by other persons, the said occupant shall be responsible in the same manner as the owner for supplying heat in accordance with the provisions of this chapter.
(b) Installation and maintenance: Where any occupant undertakes to install heating equipment, it shall conform to the requirements of the New Jersey Uniform Construction Code.
(c) The occupant shall be responsible for maintaining such equipment installed by him in good repair and operating condition during all times that the heating equipment remains under his control.
5:10-5.7 Occupancy violations
No occupant shall occupy or permit the occupancy of any unit of dwelling space in violation of the occupancy standards established under N.J.A.C. 5:10-22. No occupant shall cook in any unit or dwelling space except where all the required cooking facilities are installed as required under N.J.A.C. 5:10-20. No occupant shall occupy or continue to occupy a unit of dwelling space that does not have provision for bathroom and toilet room facilities as required by N.J.A.C. 5:10-21.
5:10-5.8 Storage
No occupant shall utilize any area outside of his dwelling space for storage purposes except in an area designated for such use in accordance with N.J.A.C. 5:10-5.1(d).
A landlord with an oral lease may use the “occupant duties” set forth in the N.J.A.C. as a sword to hold a tenant accountable for certain violations in the absence of a written lease. While the N.J.A.C. does not directly apply to the New Jersey Anti-Eviction Act, (N.J.S.A. 2A:18-61, et seq, which provides the grounds required to terminate most residential tenancies) in creating a basis for eviction, the N.J.A.C. does specifically authorize the Department of Community Affairs or local enforcement agency to administer and enforce these rules. What this means is that a statutory violation of N.J.A.C. does not, standing alone, give a Landlord the “grounds” required to terminate the tenancy. A breach may result in a citation and fine to the tenant in lieu of the landlord.
This Statutory scheme may also be used to counter a habitability defense proffered by the tenant in an eviction action. The application of this Statute may be particularly useful when a tenant seeks to claim a rent abatement due to infestation. Specifically, 5:10-5.4 (e), “[E]very occupant of any unit of dwelling space shall be responsible for removing conditions resulting from the occupants own activities or which may result in infestation conditions which are subject to and under his exclusive control.”
In sum, landlords should be aware of the N.J.A.C. protections set forth above whether one has a written lease or an oral lease. This little referenced section of the administrative code can be a useful tool in successfully defending municipal and state violations and may provide landlords with oral leases some of the protections encompassed in a written residential lease agreement.
This was prepared by the law firm of Levy, Ehrlich & Petriello, P.C. headquartered in Newark, New Jersey. It is not, nor is it intended to be, legal advice. You should consult an attorney or other qualified professional to discuss your particular matter. The firm can be reached at (973) 643-0040 or on the web at www.LEP-lawyers.com.