Tenants often ask if they should withhold rent to force their landlord to respond to repair requests. Although withholding rent is a legitimate and powerful tool, it should almost never be used. Withholding rent can have unintentional negative consequences for tenants. Here are four reasons why tenants should not withhold rent:
- Withholding rent is counterproductive: Withholding rent cuts off an income stream the landlord could use to make the repairs. Many small landlords cannot afford to pay for repairs out of their own pocket. Most of them use the income from the property to pay the property's mortgage, taxes, and maintenance. Since not paying the mortgage or property taxes could result in loss of the property, landlords tend to instead forgo maintenance expenses.
- The Tenant becomes the Defendant: Most Landlords' reaction to a tenant withholding rent is to evict the tenant for non-payment. When the landlord files a summary process action (the evection proceeding) the tenant becomes the defendant, which is a matter of public record. Increasingly landlords and tenant screening companies are checking the housing court website to see if an applicant has ever been in housing court. Even if the matter is dismissed, most landlords are concerned by the fact that the tenant was brought into court in the first place.
- Tenant's claims seem less legitimate: Common perception is that most tenants do not hold the rent they are withholding but instead spend elsewhere. Although not required by statute, most attorneys would recommend keeping the money in a separate account, however, is it rare for a tenant to do so. The Court has seen many cases where tenants claim to be withholding rent due to substandard conditions only to find out that the conditions were minor defects and the tenant was really trying to manipulate the system. Naturally the Court is suspicious of tenants claiming to be withholding rent.
- May limit the Tenant's Damages: There are statutory defenses which are also counterclaims with punitive damages (two or three times the actual damages). For example, retaliation is a defense whether the eviction is for non-payment of rent, for cause, or for no cause. However, retaliation as a counterclaim is not available for non-payment of rent evictions. Tenants' Damages are also lowered or wiped out when offset by back rent. In some cases, the tenant actually ends up owing the landlord the difference.
A tenant's case is significantly stronger when they continue to pay rent. Tenants dealing with non-responsive landlords should hire an attorney to bring an action against the landlord. It is better to be the plaintiff than the defendant.