When a landlord fails to meet their obligation to make repairs to your unit, you may have the right to withhold rent until the repairs are made. You should be aware that the failure to make repairs must involve a major problem with the apartment that makes it unlivable. Some states allow a tenant to simply stop paying the rent, while other states require a tenant to pay the rent to a court or put it in an escrow account.
When Should You Withhold Rent?
Since failing to pay rent can subject you to eviction, you should make sure that you are entitled to withhold the rent. For this option to apply, your home must be unlivable, you (or a guest) must not have caused the problem that made it unlivable, and you must have given the landlord notice and a reasonable opportunity to repair the problem. Also, you do not have the right to withhold rent if you are already behind in rent or committing another major violation of the lease.
How to Withhold Rent
A landlord usually will start an eviction proceeding if you fail to pay rent, so this issue tends to arise as a defense to eviction. You need to make sure that you are complying precisely with the laws in your state, including the notice that you need to give your landlord for making the repairs and the way to handle the withheld rent. (Landlords are not allowed to insert a clause in a lease or rental agreement that categorically prevents a tenant from withholding rent.)
Once you understand what your state’s laws require, you should give your landlord notice of both the problem and your intent to withhold rent if it is not resolved. You also should collect and keep all of the documents and photographs that will prove that withholding rent is appropriate and that you did it correctly. You should be aware that formal rules of evidence generally apply in eviction proceedings, so you may want to learn the basics of which types of evidence can be admitted. This can help you make sure that you get what you need to prove your case before the judge.
If the issue has not been resolved by this point, you should give your landlord one last chance to fix it before proceeding. Then, you can proceed with withholding the rent, as well as filing any court papers that may be needed. Some states require tenants to get permission to withhold rent from a court, but this is usually straightforward if you can show that your home is not in a livable condition. Finally, you should put the withheld rent in an escrow account, whether or not this is required. This will help prove that you are not just withholding the rent to avoid paying it.
Releasing the Withheld Rent
Assuming that you have placed the withheld rent in escrow, the landlord may get some of the withheld rent released to them to help cover the repair costs. When it comes to ongoing rent during the repair process, you may pay rent to the court or housing authority, or you may pay some of it to your landlord directly. If your unit becomes livable again in the judgment of the court or housing authority, the landlord will receive the rest of the withheld rent.
On the other hand, if you did not place the rent in escrow, you do not necessarily need to pay any of the rent to the landlord until the repairs have been made. However, you will need to pay the rent in full at that time or face the prospect of an eviction for unpaid rent.
In some states, you may be able to get an abatement (reduction) of rent for the time that your home was not livable, or dating from the time that you notified the landlord of the problem. This might involve a court, or you might reach an independent agreement with your landlord about it.
If a court gets involved, it may try to estimate the fair market value of the rental unit with the defective condition. Alternatively, the court may try to determine how much of your unit was affected by the defect and then subtract that percentage from the overall rent. If the court has the option to choose which method will apply, you should calculate the rent reduction by using each method and then try to persuade the judge to use whichever method yields a lesser amount. You will then need to pay only that amount multiplied by the number of months that the defective condition existed.