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When Can I Legally Withhold Rent?

By George Khoury, Esq. on July 07, 2017 | Last updated on March 21, 2019

When it comes to renting a home, a good landlord can make all the difference. However, even good landlords, like everyone else, will experience life as it comes at them, and their tenants or properties can sometimes take a backseat. But when problems within a rental unit persist, a tenant may find it necessary to withhold rent until the problems are corrected.

However, tenants need to be very careful when doing so, follow their state or local laws, and provide ample notice. Not following the rules can lead to an eviction for failing to pay rent, as that is a clear breach of a rental agreement. If your landlord refuses to make a repair, or just refuses to return your call, it may be your only option. Withholding rent (or deducting and repairing) the right way can help ensure that your landlord cannot evict you for doing so.

When Can I Withhold Rent?

Legally, you can't just withhold rent whenever you want. While getting arrested for withholding rent is not likely, getting evicted for withholding rent is very possible, and refusing to leave after being evicted can get you arrested. Even if there are real problems, there will likely be consequences if you fail to notify your landlord ahead of time, and give the landlord a reasonable opportunity to fix the problems.

Unless your lease specifically allows you to deduct or withhold rent for particular repairs, maintenance, or other issues, then you need to clear it with your landlord, in writing, to make sure you are protected from a breach of contract claim. If your landlord refuses to cooperate, seeking out legal advice from a local and experienced landlord-tenant attorney is a smart start, and can help you avoid having to pay even more for an eviction defense attorney down the road.

Withholding Rent the Right Way

State and local laws will control when you can withhold rent without a landlord's consent. Frequently, it will be allowed when there are habitability issues that a landlord knows about and refuses to correct in a reasonable time. Generally, the laws require that any rent withheld be paid into an escrow account which will release the funds to the landlord when the problem is corrected. Some areas have rent boards that can facilitate this process, and other disputes, without the need for hiring an attorney. Unfortunately, in the absence of a local agency that can help, individuals should seek legal advice before withholding rent.

Alternatively, if a landlord refuses to make repairs, a tenant may be able to hire professionals to make the repairs and have those costs deducted from their rent, or rent held in escrow. Again, state and local laws will explain when this is appropriate. Often, in emergency situations, like when plumbing explodes, a tenant can have the costs of an emergency repair reimbursed by their landlord. However, this should be discussed and negotiated separately, rather than as part of rent.

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