Renter’s Rights: Withholding Rent & Repair and Deduct

Suppose your faucet is leaking, the bathtub drain is clogged, and your 5-year old fingerpainted and spreckled your living room wall with a rainbow of colors. Who pays for the resulting chaos? You or the landlord?

Your lease or rental agreement may say whether you or your landlord is responsible for making a repair. Generally, a landlord is responsible for making major repairs, particularly those caused by the weather or natural forces (such as rain, flood, or a brush fire), and repairs caused by ordinary wear and tear from use of the unit (the clogged drain and faucet). The repairs should be free of charge—meaning you don’t pay for the plumber. You are responsible for making repairs for damage you caused, i.e., the damage to the wall or if the clogged drain was due to your 5-year old throwing toys down the drain.

First Steps

You should tell your landlord as soon as possible that a repair is needed and allow him or her to come and see the damage. If your landlord doesn’t come or refuses to make the repair, you should write a letter to the landlord stating what repair is needed, when the damage occurred, when you notified the landlord that a repair was needed, and ask the landlord again to make the repair. Keep a copy of this letter; you might need it later.

Handling Code Violations

If the damage to the unit might violate a building or health code, you can call the relevant local authorities and ask for an inspection. For example, health and building codes require a landlord to provide adequate heat, a roof that doesn’t leak, and to deal with unwanted pests like mice, rats, and cockroaches (unless you’ve caused the problem by not taking out the garbage for weeks at a time). Ask your city or county (if you live outside a city) authorities who are responsible for making the inspection you need. The authorities will cite the landlord if the unit is in violation of a local code.

Repair and Deduct

If the landlord still doesn’t make the repair or if the damage doesn’t violate a code, you may be able to make the repair yourself and deduct the cost from your rent. You should notify the landlord in writing that you intend to do that, to give the landlord an opportunity to make the repairs. Keep a copy of the letter. You should check your state law and local codes to see if there are limits on how you can do this. For example, some states limit the amount of the repairs and allow the tenant to make repairs only once in six months. If you follow your state and local laws when you deduct the cost for repairs, your landlord will not be able to evict you for nonpayment of rent. If you don’t do it properly, the landlord might be able to evict your for withholding the rent. You will need the copies of the letters to the landlord if there is a dispute about this.

If the conditions in the rental unit are very serious, you may be able to stop paying rent at all until the unit is repaired. For example, if the roof leaks, half the heaters don’t heat, and the oven doesn’t work, that’s serious. If one light fixture is out and air is coming in around a window, that’s not serious enough to stop paying rent. Some states recognize an “implied warranty of habitability,” which means that a landlord is legally held to have promised to keep the unit in a livable condition, even when the lease or rental agreement doesn’t say that. You should check your state and local laws to find how to withhold your rent under this warranty without being evicted. This is difficult to do, and you shouldn’t try it unless conditions are really serious.