Renting a property has its advantages. Renting is increasingly the affordable better choice to buying, and usually you’re getting other services discounted or rent-included like heat or electricity. But perhaps where your buck returns the most bang is in the fact that the responsibility for making sure your home is habitable is no longer entirely yours. Most jurisdictions in America recognize something called the implied warranty of habitability, which is an affirmative duty on landlords (meaning that, unlike other laws, it’s something you must do, not something you shouldn’t do) to ensure certain baseline liveable conditions in the properties they rent out. The duty requires landlords to make sure their rental properties have basic amenities like heating, water, working door locks, and the like, before renting those properties out. If they rent you a property that doesn’t meet this warranty, landlords can be liable for as little as a modest adjustment to your rent up to serious punitive damages, depending on the seriousness of the injury and the landlord’s good-faith effort to fix the problem once they know about it.

The story is only slightly different if something happens to your premises after you’ve moved in and have been paying rent for a while. In most jurisdictions, if there is a problem impairing the habitability or “quiet enjoyment” of the premises, the landlord is aware of the problem, and the landlord is able to fix the problem, the landlord must fix that problem. Keep those conditions in mind as we turn to the spooky tale of what I am calling the “Tom’s River Haunting.”

Fortuitously located in the same town in which several films based on the Amityville Horror hoax were filmed are Michele Callan and Jose Chinchilla, renters of a three-bedroom home in Tom’s River, New Jersey. Not so strange: they want out of their lease. Strange: they want out of it, and they want to get their deposit back, because… it’s haunted:

The family would come home and find their clothes and towels ejected from the closets and strewn over the floors. Doors would creak open and slam closed in unoccupied areas of the house. Lights switched on and off without human intervention. At night, footsteps could be heard from the kitchen after everyone was tucked in and unintelligible whispering seemed to fade in and out of thin air, according to the couple. Perhaps the most disturbing and consistent phenomenon was the sound that came through the vents to the basement — the muffled din of something lumbering seven feet below their feet. Last week, Chinchilla and Callan filed a lawsuit in state Superior Court against their landlord, Dr. Richard Lopez, a well-known orthodontist in Ocean County whose practice is adjacent to the house. Chinchilla and Callan want Lopez to return to them their $2,250 deposit the couple had put down on the rental house in February. A hearing before Judge Steven F. Nemeth is expected at the end of April.

I leave the skeptical groundwork to others. I’m here for the legal question: do they deserve their deposit back?

A couple of preliminaries. Firstly, New Jersey has basically the same warranty of habitability law that other jurisdictions do, as incorporated on the state in Marini v. Ireland: if there’s a serious problem, and you know about it, you have to fix it if you can. Otherwise, the landlord has breached the implied warranty of habitability read into every residential lease in New Jersey and owes damages ranging from rent abatement to punitive damages, depending on the specifics of the case.

Secondly, the renters seem only to be suing for their deposit back. Your deposit in a rental situation is a tricky thing: technically, it’s almost still your money. The money that you pay as normal rent goes to the landlord and it’s theirs just like any other normal transaction, but your deposit is something more like a gesture of good faith on the renter’s part. You give it to your landlord, but your landlord just sits on it for a while, ideally in a separate savings account or insured market account accruing interest (which is also owed to you in most cases) and waiting for you to move out. If you run your lease through to the end, you get your deposit back and you go on with your life.

But, moving on to the third major wrinkle here, the Tom’s River couple aren’t just moving out at the end of their lease, they’re breaching it. They want out early. They agreed to pay rent for some amount of time, and now they want to back out. This is a difficult situation to be in because, if you don’t have any particularly good reason for breaching your lease, the landlord can deduct whatever remaining rent you owe from your deposit before you move out. In order to get their deposit back, they have to be able to show that they’ve passed the four-part test for having one of their warranties broken. Otherwise, they aren’t getting their money back, and they’ll be lucky if all they lose is their deposit. So lets see how they do on the test.

1. Is there a problem impairing the habitability or “quiet enjoyment” of the premises?

I see absolutely no evidence that this is the case. The only “evidence” there is for preternatural intelligences screwing around with some New Jerseyans comes from the couple’s own reports (hardly a disinterested party, not to mention that they, being humans, are subject to all the same observational biases and logic foibles as any other humans), a local news video that shows a light turning on a little later than it should have (horrendous, I know), and the “inconclusive” report of a local volunteer paranormal investigation society. I mean – really? Even the local paranormalists aren’t calling this one with the usual aplomb with which they determine every rustling branch to be a Bigfoot and every creaky floorboard the ghost of Grandma:

Nick Carlson, an investigator with the Shore Paranormal Research Society of Toms River, said the results of their investigation into the house on Terrace Avenue are inconclusive. While there is evidence of paranormal activity in the home, based on the data his team collected, the facts suggests a residual haunting from the past associated with a significant release of psychic energy, but not an intelligence.

So the mere existence of the problem is rather circumspect. But suppose for a moment that everything the Tom’s River couple are claiming is true: there are strange sounds, the place is drafty, the lights don’t all work right, and sometimes an invisible incubus gives you a shoulder-rub while you’re trying to sleep. Does that really meet the standards set in Marini? Marini resulted from a suit based on non-functional toilets. If your toilets don’t work, the property doesn’t even meet the basic health or housing code anymore. Your hygiene is imperiled. If your toilets don’t work right, the health of the occupants is pretty seriously compromised. That’s the kind of standard Marini places on New Jersey suits of this kind. Creaky floorboards and hypnogigic states don’t make your home dangerous to inhabit, they make it a normal place to live.

2. Has the landlord been made aware of the problem?

3. Is the landlord able to fix the problem?

None of the news coverage of this story shows any indication that the Tom’s River couple said a word to their landlord before they breached their lease. If there’s a problem with the property, you have to at least give your landlord the chance to fix it before you go around suing people; otherwise, every time a bulb burned out, we’d have another case in the courts for a rent abatement. But even if the couple did complain to the landlord, what did they say: “my bedsheets fell off one time and the lights flicker?” Or did they say, “The house is haunted?” If it’s more like the former, then it would hardly be surprising that the landlord didn’t come with notarized apology letters begging mercy and offering to buy them out of the lease at a profit.

If it’s more like the latter, then you have to ask, what could the landlord actually do to fix a haunting? If the apartment burned down, the landlord wouldn’t be required to fix it: the whole lease is just nil at that point (“an assumption the truth of which was central to the contract turned out to be false”), but if the toilets broke, the landlord would have to fix it before the lease is in jeopardy. So how do you fix a haunting?

Well?

Given that the problem is imaginary, does that mean that only imaginary solutions count? Or that there are no solutions? If imaginary solutions count, then we have a whole new legal problem: the tenant and the landlord would basically be mutually agreeing to be duped by a fraudulent “exorcist” who would provide zero real benefit to anyone, collect money from the landlord, and in exchange the tenants would get nothing except whatever illusory comfort an exorcism would offer them. In short, the landlord would lose some money having nothing happen to fix any real problem:the tenant would be asking the landlord to defraud the tenant on a warranty issue in exchange for the landlord getting defrauded on a home safety issue.

4. Did the landlord fix the problem, or refuse to fix it?

Presumably, the landlord in this case has not attempted to fix the problem. Or, if the landlord did, then the exorcist wasn’t convincing enough at his laser-light show.

I’m not here to give legal advice to any party to this dispute, or any other for that matter. But, in my humble opinion, this is a stupid story and no court on Earth would give a dime to this couple on the merits of their case. They should only get however much of their deposit survives the deduction of their unpaid rent because they signed a contract, they paid money on the contract, and then they committed material breach of that contract (not paying their rent) without any good reason.

Implicit in Marini is the analytical perspective that impairments to the warranty of habitability or “quiet enjoyment” are based on an objective, not a subjective, standard. It isn’t enough for the occupant to feel like their needs aren’t being met. The occupant must actually be in danger from the quality of the premises. Whether the Tom’s River couple are gullible, crazy, lying, or just easily spooked, their landlord is out a tenant, and the couple are hopefully going to be out most or all of a deposit shortly.

So to the original question: could a landlord ever have a duty to perform an exorcism (or other de-hauntification magic) on a residential rental property?

Verdict: Probably not. Landlords have a duty to fix actual, material intrusions upon the warranties of habitability and quiet enjoyment. Since there’s no particularly good evidence that hauntings ever actually happen, much less that they materially intrude on those warranties, landlords will probably never be in the position of having to perform an exorcism in order to fulfill a legal duty to residential renters.

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Tags: deposit, landlord-tenant law, New Jersey, Tom's River, warranty of habitability