LINWOOD AVENUE DEVELOPMENT, LLC VS. ADVANCED PROFESSIONAL HEATING & COOLING, LLC (LT-001199-16, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5080-15T4
LINWOOD AVENUE
DEVELOPMENT, LLC,
Plaintiff-Appellant,
v.
ADVANCED PROFESSIONAL
PLUMBING, HEATING &
COOLING, LLC,
Defendant-Respondent.
_____________________________
Submitted July 3, 2018 – Decided April 25, 2019
Before Judges O'Connor and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Docket No. LT-001199-16.
Cavaliere & Cavaliere, PA, attorneys for appellant
(Matthew J. Cavaliere, of counsel and on the brief).
Respondent has not filed a brief.
The opinion of the court was delivered by
O'CONNOR, J.A.D.
In this commercial tenancy action, plaintiff Linwood Ave Development,
LLC leased property to defendant Advanced Professional Plumbing, Heating &
Cooling, LLC. Plaintiff appeals from an April 22, 2016 1 order that, among other
things, granted defendant an abatement in its rent and other relief. Plaintiff also
appeals from a June 22, 2016 order denying its motion for reconsideration of the
April 22, 2016 order. After reviewing the record and applicable legal principles,
we reverse and remand for further proceedings.
I
The relevant facts are these. Plaintiff is the owner of an industrial
building, referred to as the "Center." The Center contains four units. On
December 31, 2014, the parties entered into a three-year lease agreement in
which defendant agreed to lease one of the four units, specifically Unit 3. The
lease commenced on February 1, 2015. Both parties were represented by
counsel when they negotiated and executed the lease.
Under the lease terms, defendant was obligated to pay plaintiff $3100
per month in "base rent," which increased to $3193 per month on February 1,
1
In its notice of appeal, plaintiff states it is appealing from an April 6, 2016
order. We assume plaintiff intended to state it is appealing from the April 22,
2016 order.
A-5080-15T4
2
2016. The lease also compelled defendant to pay "additional rent," the details
of which are unnecessary to recite.
Defendant did not pay the rent for January and February 2016. In
February 2016, plaintiff filed a summary dispossess action in the Special Civil
Part for non-payment of rent. Specifically, plaintiff sought the base rent for
January and February 2016, as well as additional rent, late fees, and attorney's
fees. Plaintiff also requested any additional rent that was to come due before
the disposition of the summary dispossess action. In response, defendant
requested a "Marini hearing," see Marini v. Ireland, 56 N.J. 130 (1970),
asserting as a defense the premises lacked habitability and, thus, it was entitle d
to an abatement of the rent.
Before the hearing, defendant identified its specific claims of
uninhabitability. They were: (1) a smell of vegetable oil emanated from Unit
4, an adjacent unit, which defendant found offensive; (2) vegetable oil from
Unit 4 leaked into defendant's premises; (3) on occasion the roof leaked; and
(4) the air-conditioning system did not work properly during the summer 2015.
At the conclusion of the Marini hearing, the trial court rejected
defendant's claim the faulty air-conditioning system made defendant's premises
uninhabitable, a finding defendant does not contest. However, the court made
A-5080-15T4
3
certain findings and ordered various remedies pertaining to defendant's other
claims of uninhabitability, which plaintiff challenges on appeal.
The pertinent testimony provided at the Marini hearing was as follows.
Daifallah Aljaloudi, defendant's owner and manager, testified defendant is in
the business of providing plumbing and HVAC services. The premises
defendant leased is approximately 4000 square feet; eighty percent is a
warehouse facility and the remaining twenty percent is office space.
Defendant primarily used the warehouse to stock inventory, such as boilers,
water heaters, pipes, and other plumbing supplies.
Aljaloudi claimed that, commencing in March 2015, rain leaked through
the roof on approximately eight occasions. Each time there was a leak
Aljaloudi notified plaintiff's principal, Pasquale Dellacave, of the leak, who
sent a roofer the following day. However, by the time the roofer arrived, the
rain had stopped and water was no longer leaking through the roof. In most
instances the roofer asserted there was no leak. Although he knew the first
leak was in March 2015, Aljaloudi did not state when the other leaks occurred.
Aljaloudi acknowledged he was aware plaintiff was replacing the roof in
sections throughout 2015, and that the roof was completely replaced as of
A-5080-15T4
4
March 7, 2016. He conceded that before he entered the lease, plaintiff advised
him that the roof might leak on occasion until it was replaced.
Aljaloudi testified the water that entered the roof through the leaks
damaged a couple of the boilers in the warehouse, but he did not specify how.
He mentioned other boilers may have been damaged, but he will not know if in
fact they were until they are installed. He also stated that when it rained, the
staff had to move or cover the inventory that was getting wet, but he did not
articulate the time it took or the effort involved to undertake these measures.
Felix Clavico, the roofer who at plaintiff's request responded to
defendant's premises when there was a complaint of a roof leak, testified he
went to defendant's premises from March 2015 to December 2015 to fix leaks
in the roof over the warehouse. He claimed he went to defendant's premises
and fixed any leak he found the same day plaintiff contacted him to report a
leak. Clavico characterized all of the leaks as "small." Clavico stated he went
to defendant's premises twelve to fifteen times from March to December 2015,
but on some of those occasions he was checking on work he had done the day
before.
It is not disputed the entity that leases Unit 4 is in the business of
recycling vegetable oil. Aljaloudi testified that on September 7, 2015,
A-5080-15T4
5
February 23, 2016, and March 15, 2016, oil leaked from Unit 4 into Unit 3.
Although not entirely clear, his testimony indicated the oil came through at the
base of the wall that adjoins the two units, and that the leak always entered at
the same spot. He claimed that he notified plaintiff of each leak on the day it
occurred, but plaintiff never responded.
As for the impact of the oil leaks on defendant's business, Aljaloudi
stated that each time there was an oil leak, his staff had to move some of the
water heaters and boilers away from the oil on the floor. Also, it took two
weeks for the oil on the floor to dry and, thereafter, the floor continued to be
greasy. He also claimed that when the temperature outside reached eighty-five
or ninety degrees, the smell from the oil was "nasty." He did not state how
often between September 7, 2015 and March 15, 2016 the temperature actually
reached such heights.
Mohammad Alhonsi, a principal of Delta Recycling (Delta), the business
that recycled vegetable oil in Unit 4, testified the first oil leak into defendant 's
premises was caused by the failure to fully shut one of the valves on a tank in
Unit 4 that stored vegetable oil. He admitted the oil leaked through the wall
and onto a small portion of the floor in Unit 3, as well as on some pip es that
were against the wall.
A-5080-15T4
6
Alhonsi testified Delta's staff cleaned up defendant's floor and pipes the
same day as the leak, and was informed by defendant's staff that Delta had
done so satisfactorily. Alhonsi provided defendant with Delta's insurance
information so that defendant could file an insurance claim, but defendant
declined, stating there was no need to file a claim given Delta had cleaned up
the oil.
Alhonsi claims there were no other oil leaks. He testified the oil leak
that defendant claimed occurred in September 2015 was not an oil but a water
leak. As for the odor of oil, Alhonsi did admit that one of defendant's staff
complained about the smell of the oil and that defendant wanted a "filter
system" installed. Finally, Alhonsi stated Delta did not need a license or
permit from the Department of Environmental Protection (DEP) to run its
vegetable oil recycling business.
Plaintiff's principal, Dellacave, also testified. He stated he received only
three complaints from defendant about leaks in the roof. He received a
complaint in March, October, and December 2015. He asserted he sent a
roofer out to the defendant's premises the same day he got a complaint.
Dellacave stated the March 2015 roof leak was fixed within a week, and the
A-5080-15T4
7
other two leaks were fixed within just a few days of receiving defendant's
complaint.
As for oil leaks, Dellacave stated he received a complaint from
defendant on only two occasions, one in September 2015 and the other in
December 2015. He went to defendant's premises when he learned of the first
leak. He noticed the oil was at the "dividing wall" between Units 3 and 4,
toward the rear of the premises. The oil extended nine feet along and four feet
out from the dividing wall. The oil was as deep as "a pencil to a trace."
Dellacave testified that Delta's staff cleaned up the oil and, in his opinion, the
job was satisfactory. One of defendant's employees stated defendant was not
going to bother filing an insurance claim.
Dellacave also testified defendant reported another leak coming from
Unit 4 in December 2015. Dellacave called a representative from Delta, who
claimed there was no oil leak, that what defendant's employees observed was
groundwater that had seeped through a crack in the floor of Unit 3. Dellacave
inspected the area, agreed with Delta's assessment, and fixed the crack in the
floor within a week. Dellacave claimed defendant did not complain about any
other oil leaks. Finally, he noted the wall separating Unit 3 from Unit 4 is a
A-5080-15T4
8
metal stub with two layers of sheetrock on each side of the stub, and that such
wall was approved by the Building Department.
The trial court found as follows. With respect to the roof leaks, the court
found defendant was "inconvenienced," but that the water "coming down . . .
from the roof [was] not significant. It's water[,] . . . definitely an
inconvenience to the tenant, but we're not talking about gallons upon gallons."
The court further noted there was no evidence defendant sustained any
property or other damages. However, despite these findings, the court
determined that, because the roof was not replaced until March 2016, it was
compelled to give defendant "a rent abatement for that."
As for the oil leak, the trial court observed Section 9 of the lease
provides, among other things, that plaintiff warrants and represents there are
no hazardous substances in any of the Units, and that plaintiff has been in
compliance with all applicable environmental laws. Although the court
credited the testimony that Delta had cleaned up the oil that had leaked into
defendant's premises, the court expressed the opinion "it's never going to be
100 percent clean" and that what seeped into Unit 3 from Unit 4 was
hazardous. We note the court found that the oil that leaked into Unit 3
affected only a part of the wall inside of that unit.
A-5080-15T4
9
The court also found Delta required a license from the DEP to operate,
commenting "the reason why this is very critical is because . . . obviously there
are serious environmental concerns. Because this is not clean oil. I mean, this
is used oil that is now going [o]nto the floor of [Unit 3 and Unit 4]."
On April 22, 2016, the court entered an order stating defendant was
entitled to an abatement in the rent owed to plaintiff, because of the water
leaks and an "oil contamination issue." The court ordered defendant's rent
abated in an amount equal to five percent of the base rent defendant owed for
the months of January, February, March, and April 2016, as well as five
percent of certain additional rent referenced in the order.
In addition, because in its opinion the oil that leaked into defendant 's
premises was a hazardous substance and "has a potential for health
considerations," the court ordered plaintiff to do the following. First, plaintiff
was ordered to install "an adequate barrier" between Unit 3 and Unit 4 to
prevent additional occurrences of oil seepage from Unit 4 to Unit 3. Second,
plaintiff was ordered to require Delta to obtain a DEP license or, if a license
was not required, to obtain "confirmation from the DEP or applicable
professional that no such license is required."
A-5080-15T4
10
The order further provides that if plaintiff failed to comply with the
aforementioned directives by July 6, 2016, defendant was entitled to an
additional rent abatement of ten percent of the base rent and any additional
rent due, which shall continue until plaintiff "shall cause such compliance."
Finally, because defendant was the prevailing party, the court denied
plaintiff's request for late fees for the months of January, February, March and
April 2016, and ordered each party was responsible for the payment of its
respective counsel fees.
On June 22, 2016, the court entered an order denying plaintiff's motion
for reconsideration of the April 22, 2016 order. This appeal ensued.
II
On appeal, plaintiff contends the court erred because: there was no
evidence adduced during the Marini hearing to justify an abatement of
defendant's rent; there was no evidence the oil that leaked into defendant's unit
was a hazardous substance and, even if there were, a Marini hearing is not the
appropriate proceeding to address such issue; plaintiff was entitled to late fees
and attorney's fees; and a commercial tenant is not entitled to a Marini hearing.
We readily dispense with the last contention. When before the trial
court, plaintiff stated it was not contesting defendant was entitled to a Marini
A-5080-15T4
11
hearing. Moreover, the holding in Marini, 56 N.J. at 146-47, is equally
applicable to commercial tenancies. Demirci v. Burns, 124 N.J. Super. 274,
276 (App. Div. 1973).
The scope of our review of a non-jury case is limited. Seidman v.
Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). The findings on which a
trial court bases its decision will "not be disturbed unless 'they are so wholly
insupportable as to result in a denial of justice[.]'" Rova Farms Resort, Inc. v.
Inv's Ins. Co., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60
N.J. Super. 436, 444 (App. Div. 1960)). However, although a trial court's
factual findings will not be overturned absent an abuse of discretion, questions
of law are subject to de novo review. Balsamides v. Protameen Chems., Inc.,
160 N.J. 352, 372 (1999).
In every lease for premises there is an implied warranty of habitability,
which is a covenant that there are no latent defects in facilities vital to the use
of the premises and that the premises shall be in usable condition during the
term of the lease. Marini, 56 N.J. at 144. At one time the implied warranty of
habitability applied only to residential premises but, as previously noted, this
warranty has expanded to commercial facilities. Demirci, 124 N.J. Super. at
276.
A-5080-15T4
12
"Habitability is synonymous with suitability for living purposes[.]"
Aronsohn v. Mandara, 98 N.J. 92, 104 (1984) (citing Trentacost v. Brussel, 82
N.J. 214, 225 (1980)). The premises in question must be occupiable; for
example, there must be sufficient heat, ventilation, light, plumbing, sanitation,
security and maintenance. Ibid. "Not every defect or inconvenience will be
deemed to constitute a breach of the covenant of habitability." Berzito v.
Gambino, 63 N.J. 460, 469 (1973). The defect or problem "must be such as
truly to render the premises uninhabitable in the eyes of a reasonable person."
Ibid.To guide courts in the determination of whether a condition rises to the
level of breaching the warranty of habitability, the Berzito Court adopted a list
of relevant factors for the court to consider. They are:
1. Has there been a violation of any applicable
housing code or building or sanitary regulations?
2. Is the nature of the deficiency or defect such as to
affect a vital facility?
3. What is its potential or actual effect upon safety
and sanitation?
4. For what length of time has it persisted?
5. What is the age of the structure?
6. What is the amount of the rent?
A-5080-15T4
13
7. Can the tenant be said to have waived the defect or
be estopped to complain?
8. Was the tenant in any way responsible for the
defective condition?
[Id. at 470.]
The Court held that these factors are "intended to be suggestive rather than
exhaustive," and "[e]ach case must be governed by its own facts" so as to come
to a result that is "just and fair to the landlord as well as the tenant." Ibid.A tenant has three remedies for breach of the implied warranty of
habitability. First, a tenant may "regard the breach as a constructive eviction
and quit the premises without further liability to the landlord for rent." Drew
v. Pullen, 172 N.J. Super. 570, 574 (App. Div. 1980). Second, a tenant may
"give notice to the landlord of the defect and if the landlord fails to remedy the
condition, the tenant himself may do so, deducting the reasonable cost of
repair from his rent." Ibid.Third, "[i]n an action by a landlord for unpaid rent[,] a tenant may plead,
by way of defense and set off, a breach by the landlord of his continuing
obligation to maintain an adequate standard of habitability." Berzito, 63 N.J.
at 469. If the tenant proves the premises were uninhabitable, "the tenant will
be charged only with the reasonable rental value of the property in its
A-5080-15T4
14
imperfect condition during his period of occupancy." Ibid.; see also C.F.
Seabrook Co. v. Beck, 174 N.J. Super. 577, 595 (App. Div. 1980) ("The tenant
of a dwelling affected by serious defects which impair habitability must pay
the reasonable rental value only."). Here, defendant availed itself of the third
option – it sought an abatement in the rent as a defense to plaintiff's summary
action for possession.
Summary dispossess actions are "statutory proceedings designed to
accord landlords an expeditious and inexpensive means of regaining
possession of leased premises as authorized by statute." Daoud v. Mohammad,
402 N.J. Super. 57, 58-59 (App. Div. 2008) (citing Hodges v. Sasil Corp., 189
N.J. 210, 220 (2007)). "One of several statutory grounds permitting a
summary dispossess action is nonpayment of rent." Hodges, 189 N.J. at 221
(citing N.J.S.A. 2A:18-53(b)). "Consistent with the summary nature of the
proceedings, our court rules do not permit the filing of an answer, a
counterclaim or discovery proceedings [in summary dispossess actions]. "
Fargo Realty, Inc. v. Harris, 173 N.J. Super. 262, 267 (App. Div. 1980) (citing
Rules 6:3-1, 6:3-4, and 6:4-3(a)).
Therefore, summary actions between a landlord and tenant for the
recovery of premises may not be joined with any other cause of action. R. 6:3-
A-5080-15T4
15
4. Further, in a summary dispossess action, a tenant cannot recover rent that
has already been paid. C. F. Seabrook, 174 N.J. Super. at 589. An "allegation
[in a summary dispossess action] that the premises were uninhabitable during
unrelated periods of time is akin to a counterclaim" and counterclaims are not
permitted in such actions. Fargo, 173 N.J. Super. at 267 (emphasis added).
Finally, "tenants are not entitled to an abatement [of rent] when the landlord
repairs the defective condition within a reasonable time after learning of its
existence." Chess v. Muhammad, 179 N.J. Super. 75, 80 (App. Div. 1981).
Here, defendant did not file an action against plaintiff for breach of the
warranty of habitability; plaintiff filed a summary dispossess action and
defendant asserted the premises lacked habitability as a defense and requested
a Marini hearing. Therefore, defendant's remedies are limited.
The court found as fact that the water leaks merely inconvenienced
defendant. There is sufficient credible evidence to support that finding.
Although the trial court did not consider the eight factors in Berzito, 63 N.J. at
470, in this instance such oversight was harmless, as there is a dearth of
evidence the water leaks rendered the premises uninhabitable. According to
Aljaloudi's testimony, at worst, the water leaks damaged only two boilers, and
the nature or extent of that damage was not provided. Although the staff had
A-5080-15T4
16
to move or cover some of the inventory, there was no evidence of the time or
effort expended to accomplish such task. In short, there was no evidence the
leaks made the premises uninhabitable. Berzito, 63 N.J. at 469.
Notwithstanding the lack of evidence the water leaks made the premises
uninhabitable, the court found defendant entitled to an abatement of the rent it
owed plaintiff for the months of January, February, March, and April 2016.
There is no legal support for this finding. Defendant was not entitled to an
abatement for the very reason the premises were not made uninhabitable by the
leaks.
Further, plaintiff sought possession because defendant failed to pay rent
from January to April 2016. There was no evidence of any water leak during
the latter period, yet the court granted defendant an abatement in the rent it
owed in January, February, March and April 2016. Defendant was not entitled
to an abatement in rent for any month other than the ones in which the
premises were uninhabitable. Berzito, 63 N.J. at 469; see also Seabrook, 174
N.J. Super. at 595. To the extent it found defendant entitled to the abatement
for a water leak or leaks that occurred before January 2016, the court erred. In
a summary proceeding, a tenant cannot recover rent that has already been paid.
Seabrook, 174 N.J. Super. at 589.
A-5080-15T4
17
As for the oil leaks, defendant testified there was a leak in September
2015, and in February and March 2016. Plaintiff claimed there was only the
one leak in September 2015. The court did not make a finding of fact about
whether there was an oil leak in February and March 2016, in addition to
September 2015. Be that as it may, there was no evidence the oil leak or leaks
in this warehouse rendered the premises uninhabitable.
Aljaloudi did state the smell of the oil was "nasty" when the temperature
reached eighty-five degrees and above, but he did not specify for how long the
odor lasted after a leak or the extent to which the odor was detectable within
the warehouse. That is, it was not clear whether the odor was confined to the
area of the leak or extended beyond that area. Defendant's staff had to move
some inventory away from the oil leak, but there is no evidence this was an
arduous or time-consuming task. It is undisputed Delta informed defendant it
would cooperate with defendant if defendant decided to file an insurance
claim, but defendant declined to do so. In the final analysis, there is no
evidence the oil leaks about which Aljaloudi testified affected the premises to
the point where the warehouse could not be occupied. To have ordered
defendant was entitled to an abatement of rent was error.
A-5080-15T4
18
More important, the trial court did not have a basis in fact or at law to
order plaintiff to install a barrier between Units 3 and 4, or to order plaintiff to
require Delta to obtain a license from the DEP or obtain confirmation one is
not required. First, there was no evidence the oil is a hazardous substance.
Second, as noted, a hearing for summary possession is very limited. Such an
action is designed to "accord landlords an expeditious and inexpensive means
of regaining possession of leased premises[,]" see Daoud, 402 N.J. Super at 58
(citing Hodges, 189 N.J. at 222), when a tenant fails to pay rent.
A tenant may assert uninhabitability as a defense, but a summary action
between a landlord and tenant for the recovery of premises may not be joined
with any other cause of action. R. 6:3-4(a). In effect, the trial court handled
this matter as if defendant had asserted a cause of action against plaintiff for
permitting another tenant to a store hazardous substance in its premises, for
which defendant sought injunctive relief. Such an action was neither initiated
by defendant nor permitted in this summary proceeding, not to mention
plaintiff did not have notice of the relief ultimately ordered. Accordingly, the
April 22, 2016 and June 22, 2016 orders are reversed and the matter remanded
so that a judgment of possession may be entered in favor of plaintiff. In
A-5080-15T4
19
addition, in light of our disposition, the trial court shall determine whether
plaintiff is entitled to late fees and attorney's fees.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
A-5080-15T4
20