Withholding Rent: When Can It Be Done?

By: , Contributor

Published on: Jan 25, 2020

In some situations, you may be justified in not paying your landlord.

When your landlord doesn't fulfill his or her obligations under your lease agreement, withholding rent may seem like your only option as a tenant. In some situations, you may be entitled to legally withhold rent -- specifically, when your landlord refuses to make required repairs to your living space.

However, it's important to withhold rent the right way to ensure that you don't violate your lease agreement or create a scenario where your landlord is within his or her rights to evict you. Here's what you need to know about the process.

Step One: Research your state's laws on tenants withholding rent

As a tenant, living in a home in need of repairs can make for a frustrating experience to say the least. Having no hot water, a nonfunctioning fridge, or an out-of-order elevator when you live on the 14th floor can certainly be disruptive, to the point where you may be inclined to withhold rent until the issue at hand is fixed.

But despite the inconveniences you may be facing, before you withhold rent, research your state's laws and find out:

a) Whether you're allowed to withhold rent in your state, and

b) What circumstances allow you to do so.

Some states have a looser interpretation than others as to what repairs landlords are required to make. As an across-the-board rule, landlords must provide a safe, structurally secure, habitable living space for tenants.

If you're withholding rent due to not having a working shower, you probably have a leg to stand on. But if you're doing so because your landlord has yet to repair your broken closet shelves, that's not nearly as compelling an argument.

In some cases, you may need to give your landlord a reasonable window for making repairs before withholding rent. That window could be a few days, 30 days, or possibly more -- it all depends on what local laws dictate, so do your research.

Furthermore, if you are allowed to withhold rent when your landlord fails to perform his or her duties, then you may need to put your unpaid rent into a separate bank account as per your state's laws. Find out exactly what's required of you so you don't get in trouble for violating your lease agreement.

Step Two: Notify your landlord of the need for repairs

If you're contemplating withholding rent, you've probably already put in a complaint with your landlord about getting an issue fixed. But this time around, make that notice more official. Outline the problem you're facing with your rental unit in detail, give your landlord a timeline to fix the issue in accordance with your state's rent withholding statute, and send that letter via certified mail so you can be sure it's received.

Step Three: Protect yourself from eviction

If your landlord refuses, or is unable, to make the repairs you've asked for in your certified written notice by the deadline that letter includes, then you may be justified in withholding rent -- but that doesn't mean your landlord won't attempt to retaliate by evicting you. To prevent that from happening, keep copies of all correspondence with your landlord, and, if applicable, take pictures in support of the fact that the problem you reported has not been fixed.

Step Four: File a notice in court if necessary

In some states, you must request permission from a local court to withhold rent before you actually do so. And if the court agrees, there may be specific procedures involved. Find out what the requirements are where you live to avoid legal issues -- you’ll generally be given this information in court when you file your notice.

Step Five: Put your rent into an escrow account

Generally, once you're within your rights to withhold rent or are granted legal permission to do so, you'll need to put that withheld money into a special account that your local housing agency or court can oversee. From there, you may be entitled to hire your own contractors to make repairs to your living space, at which point the funds from that account can be deducted from your rent to cover them. If your landlord does finally agree to make repairs, he or she may be entitled to the money in that escrow account while the work in question is in progress, or after it's complete.

If you're not required to place withheld rent into a special escrow account as per your state's laws, then you and your landlord will generally need to come to an agreement as to when and how the repairs in question will be made and when the landlord will get his or her money.

Step Six: Fight for compensation

Let's imagine your landlord finally steps up and makes repairs to get his or her hands on the rent money a court allowed you to withhold. What about all that time you spent living in a home that wasn't up to par?

Imagine you withheld one month of rent because your landlord refused, or was unable, to get your shower into working condition, but in reality, you lived with that issue for two months. Are you entitled to compensation in the form of reduced rent for dealing with that extreme inconvenience?

The answer: It depends on where you live. In some states, you'll need to go through the courts to secure what's known as a rent abatement, which is a reduction in rent, usually because of the aforementioned circumstances. In other cases, you may need to negotiate that abatement directly with your landlord.

Avoiding a landlord who won't make repairs

As a tenant, you have the right to a habitable home. If you'd rather avoid a scenario where you're thinking of withholding rent because your landlord won't make repairs, do a good job of vetting your landlord, or your building's property management company, before signing a lease. Talk to other tenants in the building about their experience, and ask how many tenants have renewed their leases. That will give you an idea of how reliable and professional the landlord you're renting from is.

At the same time, be sure to read your lease agreement thoroughly before signing it. That way, you'll understand exactly what obligations your landlord has before you move in. If the wording of that agreement isn't clear, ask for clarification so you're less likely to wind up in a situation where you're in desperate need of a repair, and the only way to make it happen is to threaten to withhold rent or actually go to that extreme.

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