Protections Urged for Tenants Who Withhold Rent over Lead Paint Issues

When tenants hold back rent to force landlords to clean up contamination they often are evicted — and blacklisted when they look for another place

Lead paint is known to be hazardous to anyone living in an older apartment, and under state law landlords have a legal duty to remediate known contamination. But tenants who withhold rent to get satisfaction often find themselves evicted from their homes and blackballed by other landlords.

That was the takeaway from a symposium Wednesday at Seton Hall Law School in Newark for lawyers and tenant advocates called “Lead Policy & The Law: It’s More Than Newark, It’s More Than Water.”

“We often hear judges say to tenants: ‘You’re not happy with the apartment? Just move,’” said one of the panelists, attorney and advocate Jose Ortiz of Essex-Newark Legal Services. “We have a critical affordable housing shortage here in New Jersey. We just can’t move.”

Ortiz and the others in attendance Wednesday said that while public policy in New Jersey may be to provide tenants with safe places to live and protect them from homelessness, the reality can be very different. Tenants who withhold rent over issues like lead contamination often face eviction proceedings and then get tagged as deadbeats among prospective landlords.

Seton Hall professor Kevin Kelly said building owners access court records — a “blacklist that tenants’ names appear on simply when they withhold the rent because they’re trying to get repairs done. They come across as looking like a bad tenant when the reality is much different.”

“Just the filing is a black mark on their record,” Ortiz said. “And they’re going to have difficulties in finding new housing, even if they did want to move.”

Hearing 40,000 eviction cases a year

Ortiz said that judges in Essex County consider 200 to 300 eviction cases per day, and 40,000 in a year. State law allows tenants to withhold rent in some cases, but successfully navigating the often protracted process can be difficult, especially for poor families who often try to go it alone. Ninety-nine percent go to landlord-tenant court without representation.

“It’s confusing. It’s tricky,” said attorney Abdul Rehman Khan of McCarter & English, pro bono fellow for the City of Newark. “It’s daunting, even for lawyers, to show up through those double doors and defend a case.”

Even before they’ll hear a case where a tenant asserts that their residence is contaminated, landlord-tenant judges will insist they have put all the withheld rent in escrow. The advocates also said it can be tough collecting evidence to prove a case, especially when municipalities won’t turn over code inspection reports without a formal Open Public Records Act request.

It can take “months for tenants to be able to obtain the copy of the inspection report. By then, the tenant’s already evicted,” Ortiz said.

“In asserting the fact your place is unlivable, you have to continue to live in an unlivable space, and then wait for the court process to recognize your right to a livable space, after a second hearing,” Khan said.

Living in unlivable housing

The bottom line, the advocates said, is that withholding rent, once hailed as a revolutionary tool in compelling landlords to create livable conditions falls far short of that ideal.

“People pass great laws and great regulations, but at the end, do they really mean anything to the people who are at risk?” asked Matthew Chachere of Northern Manhattan Improvement Corp. Legal Services.

Two bills now before the Legislature would offer some relief — S-806 would impose limits on the public release of certain landlord-tenant court actions, and S-805 would bolster the right of tenants to withhold rent based on the “habitability” of a residence. Both, as well as their companions in the Assembly, have been referred to legislative committees.

Advocates support reforms that would stop blacklisting tenants simply for trying to get issues like lead contamination fixed. They also said they’d end the requirement that withheld rent be set aside.

The state Property Owners Association is opposed to ending that requirement.

“We feel the system is fair for both sides and protects them as well. However, not requiring tenants to escrow the rent that they are withholding places the landlord at considerable risk in the event no code violations are found, which happens frequently.”

Advocates noted that violations would be easier to prove if tenants got better access to evidence of contamination.