When Can I Withhold Rent and Not Get Evicted?

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Anyone who has had a disagreement with a landlord has probably wondered if they could withhold rent until the issue was resolved. To the surprise of many, there are actually circumstances under which a tenant can lawfully withhold rent and not have to worry about getting evicted. So what are those circumstances?

As is usually the case, laws regarding withholding rent vary widely by jurisdiction. However, as a general rule, if your landlord has not met its obligation to keep your unit livable, then you may be able to stop paying rent to the landlord (though you may still have to pay it somewhere else). To withhold rent, the problem must be serious enough to impair your right to live reasonably within the unit, and must not have been caused by you or one of your guests. You must also have been paid up prior to withholding the rent and otherwise in compliance with the terms of your lease.

While most states allow rent withholding, it is not a common law right, therefore it must be expressly allowed in your state, either by statute or court ruling. Even in states that do not allow rent withholding, there are sometimes other options, such as repair-and-deduct (literally fixing the problem yourself then deducting the cost of that repair from the amount paid to the landlord for rent).

Regardless of your state's regulatory scheme, be aware that rent withholding (or repair-and-deduct) is almost always a dicey game. A landlord will almost always attempt to proceed with foreclosure as though you have failed to pay rent without cause. Some states have specific notice requirements that you must observe, or you may find yourself on the wrong side of the eviction question. But, one of the most common mistakes is simply refusing to pay rent all together when the state's laws require withheld rents to be paid into the registry of the court or some other form of escrow. For these reasons, you should always consult an attorney before deciding to withhold rent in order to make sure that you are pursuing the best course of action under your particular circumstances and in your jurisdiction.

Almost any instance of rent withholding will eventually result in an eviction action. In states that have not established an escrow requirement, the right to withhold rent is fairly indirect. When the landlord tries to evict you, you simply raise the defense that the unit was unfit for its intended use. If the court believes you, then you will win and not be forced to leave the property. Unfortunately, this leaves quite a bit to the determination of third parties, so the risk adverse may wish to seek other options.

If you are considering withholding rent, first take a day or two to research the law. Contact an attorney or visit your local law library. If rent withholding is allowed in your jurisdiction, find out under what circumstances, whether you have to provide notice (and if so, how), and whether you must pay the withheld rent into some form of escrow. Regardless of what you find, notify your landlord of the problems with your unit, your dissatisfaction, and why you are withholding rent (if you can do so legally). Send the notice via certified mail with a “return receipt” requested, and regular US First Class mail. This will ensure delivery and, if the landlord signs for the notice, provide proof it received the notice. Collect and keep evidence of the condition of your unit, what makes it unfit, your efforts to resolve the issue with the landlord, and any other matters pertaining to your dealings. 
Keep requesting repairs, even after an eviction action has been filed, and continue to document the condition of the unit and the landlord's responses (or failure to respond).

If the landlord continues to refuse to repair the unit, but does not pursue action against you for eviction, you may need to take matters into your own hands. Some states will require you to file an action to seek permission to withhold rent, but even if this is not a requirement, you may have to seek legal assistance to get your unit repaired. Regardless of whether required to do so or not, it may be wise to pay rent into the clerk of court (or another entity if so specified) while any litigation is pending. This will show good faith on your part and prevent you from losing your home if the court rules against you. The funds held in escrow would simply be released by court order to cover the back rent, and things would return to normal. This also helps to dispel the appearance that you are simply withholding rent because you are unable or unwilling to pay it, keeping the court's focus on the issue of the unit's fitness.

Obviously, these issues can become somewhat muddied and complicated. Thus, it would be most wise to pursue your rights in rent withholding cases with the aid of an attorney. You can find a lawyer experienced in landlord-tenant matters in your location by visiting HG.org and using the free attorney search feature.

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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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