When is it Okay Not to Pay Rent

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Leases are tricky things. They are a combination of contract laws, agreements between the parties, and laws and regulations that relate to landlords and tenants, housing standards, zoning, safety, etc. As a result, although a lease agreement may say you have to pay rent always and under every circumstance, there are plenty of times when one of these other laws may intervene.

You may not have to pay rent, and you will not be subject to eviction, if you fit into one of these scenarios:

1. Your landlord is overcharging you

If your apartment is subject to rent control or rent stabilization, the rent collected by the landlord cannot exceed the legally permitted rent no matter what the lease says. This is often the case in rent controlled housing or areas where the landlord is receiving subsidies from the government to rent to disadvantaged families. New York is well known for its rent controlled buildings designed to keep the cost of living at a more affordable level in a city where real estate is at a premium. While it can be difficult to verify exactly how much rent a landlord is legally allowed to charge, one clue that may show the landlord is not in compliance is a round number for rent. Because rent controls allow increases based on percentages, the maximum rent is usually a non-round number, like $1437.28. If the rent you are being charged in a rent controlled building is more like $1450, you may be in an illegal overcharging situation.

If the landlord is collecting too much rent and you can show that it was not just a typo or failure to submit a rent registration form, you may be entitled to recover the overpayments and/or withhold it from future rent. In some jurisdictions, you can also recover additional damages (such as triple the amount by which you were overcharged) plus legal fees and costs.

2. Your building is not zoned for residential use

If your building is not zoned for residential use, you cannot legally live at that location. As a result, a landlord that tries to rent the property for residential purposes is not legally entitled to do so or collect your rent.

This is more of a problem in older buildings where use may have changed over time, or areas that clearly do not appear to be residential. A call to your local zoning board can often clear up your location's zoning status, and many of these agencies have websites to make searching even easier.

3. Your apartment or building is unsafe

By far, the biggest means of avoiding rent is the situation of an “untenantable” building. Conditions in a residential building that make it unsafe or uninhabitable may constitute a breach of the agreement to lease you a place to live since you cannot live there. It may also be a violation of a number of other laws in your jurisdiction. Examples include unfinished construction, damaged to roofs or walls that allow the in the elements, exposed electrical wiring, large water leaks or flooding, significant mold growth, and many others. As a result, you will be able to avoid paying rent in these circumstances, as the landlord has not held up his end of the bargain by providing you with a liveable place to reside.

Of course, if this matter progresses to legal action, the court will consider the seriousness of the condition and whether the landlord was responsible for it, so damaging your own home will not excuse you from paying rent. Also, if the landlord has shown a good faith effort to repair the condition, this may play against forgiving nonpayment of rent, so you will need to analyze your own case carefully before deciding what action to take.

Before taking any action regarding nonpayment of rent, you should take steps to educate yourself about the potential consequences. Many cities have free legal help clinics where simple questions can be answered by licensed attorneys who may be able to advise you regarding your rent payment issues. Additionally, there are many resources for finding less expensive legal services, often through local or state bar associations, provided by licensed attorneys who can help you should additional legal action be necessary to secure your rights.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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