Give me a fire by Christmas, please!

December 14, 2007 1:24 PM

What, if any, are the effects of express warranties by landlord and landlord's agents under New Jersey landlord tenant law?

Okay, yes, I am a lawyer, but I'm out of my zone of comfort and in a brand new state. Please take pity on me!

Prior to renting my home, the landlord's property agent (not my agent) represented that the fireplace and chimney were safe for use as a result of passing inspection. Further, during lease negotiations, as a part of an attempt to persuade my husband and I to accept liability for all repairs of any kind, two employees of the landlord represented that full inspections had been done within the last 12 months, the house had passed, and thus we could forsee no actual risk under such a clause. We nevertheless declined to agree to accept that liability.

Prior to using the fireplace, my husband would like us to obtain confirmation of its safety for use. My written query to the landlord was responded to as follows:

"You are correct that the standard NJ home inspection was done. However, that was only a visual inspection for any structural damage to the exterior, as this was the only inspection we were required to do. "

I feel that I received an express warranty that that the fireplace was safe from the realtor (a designated agent of the landlord), who used the use of a fireplace as a selling point, along with a more general (but also express) warranty from the property managers that a detailed inspection had taken place. I rely on no implied warranties of any kind, and do not assume that because the stove is in the house, it is safe to use.

I am not familiar with NJ law; I do not (and will not in future) practice in NJ. My prior education is with NYS and NYC property law, which as you may know is often quite different from other states. Without asking that anyone do in depth research here, any quick thoughts on an argument that I've got an express warranty as to the fireplace, or whether there is any wiggle room whatsoever for a contractual promissory estoppel type argument? I realize this is a fairly technical question, and am asking solely for the purpose of determining whether further research on my part would be worthwhile. If someone knows I am wasting my time, hearing that would be useful. I will not be relying on your answers as the basis of further correspondence, etc.

Thanks in advance for saving Christmas!

posted by bunnycup to law & government (6 comments total)

I don't understand what you are asking. Are you trying to get the landlord to pay for a specific chimney inspection prior to using it or did you use it and find it faulty?
posted by 45moore45 at 1:36 PM on December 14, 2007

Well, I have some familiarity with landlord-tenant law in New Jersey, and I would suggest that it is a well regulated area, and so more research would be well worth your effort. You might go ahead and drop by your local Legal Services of New Jersey office, because they have a great resource for renters in New Jersey concerning rights and responsibilities.

Your concerns about safety - to me - indicate that this could well fall under the implied warranty of habitability. Dying of smoke inhalation or whatever faulty fireplaces do to people is clearly out of keeping with that implied warranty, which is (as you are aware, I'm sure) inherent in all residential rental contracts. Not that you want to go telling the landlord that he will be liable for your death if you die from using the fireplace - he might take offense.

I'm not a practicing attorney, and IANYL - but you know that. Just had to say it. Cause we're nothing if not an anal retentive bunch of freakshows in the legal profession.
posted by greekphilosophy at 1:49 PM on December 14, 2007

My goal is to have the landlord pay for the inspection (or confirm there was an inspection, as they previously claimed), before I use it. Alternately, I would like to argue that because they warrantied an inspection had taken place and was passed, any costs I incur in inspection and necessary repairs would be offset against the rent. I am pregnant and it is a 200 year old house, so we don't feel comfortable using it without knowing that it is safe.

GreekPhilosophy, I didn't look at this under implied warranty of habitability because NJ seemed fairly strict in finding that only violations which impacted the basest ability to live in the house, were included. In NYC, as comparison, loss of use of "luxury" services (such as, frequently, elevators, IIRC) were not violations of IWH because the apartment was nevertheless habitable. The fact that the apartment was not as paid for or was in subpar condition for its market value was insufficient to rise to a violation of IWH. On initial broad brush research, NJ seems to take an even stricter approach. Since I need not use the fireplace (i.e. because I have electric heat and thus don't require it for a heat source, although it is equipped to serve as one), I reasoned an IWH claim would not lie. If you have in mind a different approach, I would be so thankful to hear it.

And no worries: disclaim away. I am as anal retentive as they get and I would have disclaimed too.
posted by bunnycup at 2:22 PM on December 14, 2007

I worked in property management for over 8 years. My advice would be to ask the landlord nicely and explain your concerns and leave the legalities out of it unless absolutely necessary. I don't think you are going to have a lot of luck bringing out the big guns on this issue because from a landlord's point of view they cannot guarantee the fireplace because there is a lot of room for user error. Past making sure the flue works and it isn't clogged with creosote, it would most likely be considered operational. If you start getting all legal on his ass, he'll either return the favor by having his lawyer respond, or, he'll shut down and say you can't use it at all, that it was decorative and not functional. A fireplace is not a "right" or a habitality issue the way water, heat and electricity would be, so I think you'll get a lot further on it by being nice rather than legal. Ask him if you can solicit bids and choose a vendor and deduct the cost from the rent.
posted by 45moore45 at 2:50 PM on December 14, 2007

Since it was his agent, who had actual or apparent authority upon which you relied, under general agency principals the landlord would definitely be liable for those statements. Greekphilosophy knows more about the NJ specifics of that issue, but if the agent told you it was safe to use, I'd think the landlord would be bound by that statement.
posted by katemonster at 3:08 PM on December 14, 2007

Update:

By email this afternoon, the property manager agreed to have an inspection and cleaning done within the coming week.

Following my post here, I wrote to explain that I felt the authority of the realtor and the two property managers had created a promise (used to induce us into taking on the rental) that the fireplace had passed inspection. I did this in as friendly and non-intimidating a way as I possibly could, without legalese, case citations or veiled threats.

Thanks all for your help!
posted by bunnycup at 12:01 PM on December 15, 2007