- Withholding Rent as a tenant’s option. Only a handful of states allow tenants to withhold rent and only upon certain conditions (read more).
- Notice Requirement. Tenants are required to provide the landlord with notice if they intend to withhold rent. The type of notice required will depend on the state. (read more).
- Time to Repair. States allow landlords to fix the habitability issues a certain period of time before the tenant can withhold rent. This period varies depending on the state and starts on the day the notice is received. (read more).
- How long the tenant is allowed to withhold rent. Tenants are usually allowed to withhold rent until the landlord repairs or addresses the issues. (read more)
Each state has its own rules on what needs to be provided for living conditions in rentals to be deemed “acceptable”, known as the Implied Warranty of Habitability. Similarly, each state provides the corresponding remedies or actions that tenants may take in case the landlord fails to comply with this warranty. Below is a breakdown of those laws as it relates to the tenant’s right to withhold rent.
Withholding rent is a distinct remedy from paying for the costs of repairs or of doing what the landlord is required to do and deducting that amount from the rent. Rent withholding is refusing to pay rent until the issue is corrected.
Few states allow tenants to withhold rent. When allowed, tenants usually have to comply with a notice requirement, grace period and/or a specific manner of withholding in order for it to be a “valid” or justified withholding. It is important to know these rules because unauthorized withholding of rent may be a ground for the landlord to terminate the rental agreement, evict the tenant or even for some sort of penalty for the tenant.
States That Allow Rent Withholding for Repairs/Habitability Issues
The following chart lists which states allow tennants to withhold rent for repairs or habitability issues. Any exceptions to the requirements are noted for each state.
Note: the below table only addresses state laws. Always check with county or city housing codes for additional requirements.
|State||When is Tenant Allowed to Withhold Rent?|
|New York||Not allowed|
|North Carolina||Not allowed|
|North Dakota||Not allowed|
|Rhode Island||Not allowed|
|South Carolina||Not allowed|
|West Virginia||Not allowed|
|Washington, D.C.||Not Allowed|
Notice Requirement and Time to Repair
Where the tenant is empowered by the law to withhold rent, the tenant must provide the landlord with notice and time to conduct the repairs. Below is a table for the time frame landlords have to make the repair, starting the day the request is received, as well as what type of notice is required in that state.
|State||Type of Notice Required||How long the landlord has to fix issues.|
|California||Orally or in writing||30 days|
|Colorado||In writing (only)||Within a reasonable time|
|Delaware||In writing (only)||48 hours *|
|Florida||In writing (only)||20 days, 7 days if “essentials”|
|Hawaii||Orally or in writing||if required by government agency *|
|Massachusetts||In writing (only)||14 days|
|Michigan||Orally or in writing||Within a reasonable time|
|Minnesota||In writing (only) ***||14 days|
|Nevada||In writing (only)||14 days|
|New Hampshire||In writing (only)||14 days|
|New Jersey||In writing (only)||14 days|
|New Mexico||In writing (only)||14 days|
|South Dakota||Orally or in writing||Within a reasonable time **|
|Vermont||In writing (only)||Within a reasonable time|
* In some states there is a limit as to the amount of rent that may be withheld. Specifically in Delaware, only part of the rent may be withheld, and in Hawaii, the tenant can only hold on to 1 month’s rent.
** In South Dakota, the tenant is only allowed to withhold rent if the repairs will cost more than one month’s rent.
*** In Minnesota, tenants are only allowed to submit a written repair request to their landlord if there is no local housing/safety/health inspector they can report concerns to.
Even if a state does not require it, it’s highly recommended to put all requests in writing in case there is a dispute about the need for the repair or the timing of the request.
Time and Manner of Withholding
Tenants are generally allowed to withhold the rent until the repairs are made or until the landlord has rectified the issues as the latter is required to do so. However, some states require succeeding payment of rent to be made to the court or in an escrow.
That tenants are not automatically allowed to keep the rent to themselves. Some states require tenants to “tender” or make withheld rent payments to the local court. The court will then decide if the tenant is allowed to keep some, or all, of the rent paid into the court, or if the amount held by the court should be paid to the landlord.
Other states require tenants to pay withheld rent amounts into an escrow account, an account where funds are held for safekeeping until the landlord corrects the issue. Then, the rent held in the escrow account would be paid to the landlord once the problem has been fixed.
Finally, a few states allow tenants to withhold rent without expecting them to pay the withheld portion to the landlord, even after repairs are made.