In certain states, tenants are allowed to stop paying some (or all) of their rent until the landlord makes major repairs—a tactic known as “rent withholding.” For rent withholding to be legal, the problem must be serious and it can’t have been caused by the tenant or their guests. Tenants shouldn’t take this step lightly, however. When a landlord doesn’t receive a rent payment, it’s very likely that they will sue for eviction.
Not every issue is serious enough to withhold rent
There are lots of things that can go wrong in a rental unit—the paint on the walls might start peeling, the ceiling might develop a persistent leak, or the shower might stop draining. But tenants can’t use repair and deduct for every kind of repair. It has to be one where the landlord is legally required to fix it, which could be for two reasons:
- The issue is mentioned in the lease and states it is the landlord’s responsibility to fix it
- The problem violates the implied warranty of habitability
The implied warranty of habitability varies slightly by state, but in general requires a rental unit to have things like having hot and cold running water and be free of insect or rodent infestations—all things that keep an apartment liveable. If the issues with a rental aren't serious enough to warrant rent withholding, the tenant could be evicted for not paying rent.
Issues caused by tenants or guests aren’t covered
If a tenant or their guest, family member, or pet is the one to cause the damage, then the tenant cannot legally withhold rent.
Not all states allow tenants to withhold rent
Rent withholding is illegal in some states, including Texas. Choose your state from the drop-down menu at the top of this page to find out whether rent withholding is allowed where you live.
Even if rent withholding is illegal, there are other approaches available to tenants who are having trouble getting their landlord to make a major repair. One option is to repair and deduct; another is to leave the rental altogether and claim constructive eviction.
Tenants may need to store withheld rent in a separate account
Although it’s referred to as rent withholding, in some states tenants are still required to pay rent—to the court, rather than their landlord. Other states require tenants who are withholding rent to deposit their payments in a separate bank account, known as an escrow account.
The process for rent withholding varies depending on the state
Some states outline the process for rent withholding in the law; in others, the right to withhold rent was created by a particular court case. Then there are states like New York, where rent withholding is allowed, but indirectly—if tenants stop paying rent and a landlord tries to evict them, a tenant can defend themselves in court by proving that the unit was unlivable. If the court agrees, the tenant will be allowed to stay.
It's very important to understand the specifics where you live. Even if rent withholding is legal in your state, if a tenant doesn't follow the correct procedure, a judge could rule that they have to pay back the withheld rent.
The information provided on this website does not, and is not intended to, constitute legal advice.
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