By Robyn Latman, Esq. 

Your tenant owes you rent for several months, so why does he expect you to make repairs? While most Landlords prefer to maintain their investments in a state of repair, it may be the case with some Landlords that they prefer to first make repairs for the tenants who pay the rent on time.  Other times, the Landlord is not even aware that a tenant needs repairs to their unit until the Landlord sues the tenant for non-payment of rent.

Landlords might be a bit more relaxed with requests from delinquent tenants.  If the tenant isn’t paying rent, then how am I expected to pay for the repairs?  Or maybe the Landlord doesn’t think that repairs are necessary.  Rather, the apartment is fine exactly how it is.  Anyhow, the tenant looked at it before agreeing to rent the place.  Maybe there isn’t enough money coming in for the Landlord to be able to afford repairs right away.  Does any of this sound familiar?

Maybe it seems justified that a tenant who hasn’t paid his rent deserves to live with a broken air conditioner, a leaking ceiling or a stove that has only one working burner.  Or perhaps a tenant pays an especially low rent because the unit was rented in bad condition.  If the tenant pays rent that is less than  market value because the Landlord doesn’t want to fix the unit and the tenant wanted a cheap home, is the tenant entitled to demand a remodel?  What is the connection between paying rent and making repairs?

Generally, in a non-payment of rent case for eviction in Landlord Tenant Court, the tenant’s defense is to pay the rent.  Once the tenant pays the rent that is due and owing, a tenant has the right to have the case dismissed.  However, there does exist a defense that allows a tenant to withhold the rent when the tenant needs repairs to be made to the rental unit, and the Landlord refuses to make them.  This does not include repairs that are strictly cosmetic in nature.  It refers to necessary repairs that return the unit to the condition that it was in at the time that it was rented.  We are talking about the value of the unit in its current condition versus the value of the unit at the time that it was rented.  We are also talking about repairs that the Landlord has previously been made aware of by the tenant.  This is not the chance for a tenant to play “Gotcha!”

When may a tenant withhold rent?  Your tenant didn’t pay the rent for June and July.  When you bring him to court, he claims to be withholding the rent because he did not have heat during the winter.  No good.  Your tenant owes rent for January and February.  When you bring her to court, she claims that she did not have air conditioning last summer.  No good. In order to claim this defense, the tenant must be withholding the rent during the months in which he is not receiving necessary repairs or services.  Heat is not an issue in the summer, nor air conditioning in the winter.  However, if there is an ongoing leak that is not being addressed, it makes sense for a tenant to withhold the rent for as long as the leak continues.

Your tenant doesn’t like the color of the paint in her apartment.  Your tenant saw his neighbor’s kitchen, and it looks a lot nicer than his.  These are cosmetic issues which do not affect the use of the apartment and will not be considered as repair issues, for which a tenant may withhold the rent, in the Landlord Tenant Court.

What about my rent money?  When a tenant withholds rent for valid repair issues, the court will require that the rent money be deposited into court on the trial date.  This happens before the court will address any repair issues.  This takes care of the issue of non-payment without turning the rents over to the Landlord until these matters may be resolved.  A tenant who has spent the rent money, rather than set it aside, will quickly learn the true meaning of withholding rent.  In that case, the Landlord will be permitted to proceed with the eviction.

Many Landlords and Tenants are able to resolve these issues on their own, often by giving a small rent credit to the tenant to compensate for his inconvenience or lack of services that existed for any length of time.  However, when a resolution is not possible between the parties, the court system is able to address and resolve these issues.  Weighing the value of the service or the area of the rental space that was made unusable for any period of time, the Court may grant an abatement of the tenant’s rent during the time period for which the rents were withheld.

If you have a tenant who may be withholding his rent due to repair issues, and you are unable to resolve the matter on your own, your next step is to file a non-payment of rent case to bring your matter to court.

Information gathered from this blog post is intended to be educational in nature only and does not replace the advice of an attorney about your specific matter.  If you are a landlord of either residential or commercial space, and you are wondering whether you can enforce your lease agreement, collect unpaid rents or remove a tenant who is breaching its lease agreement or the law in some way, please contact this office for additional information.  We look forward to speaking with you.