By South Coastal Counties Legal Services (SCCLS)
One of the difficult housing situations face by tenants is what to so when a landlord refuses to make much needed repairs.
Here’s a hypothetical situation to consider:
My name is Susan. I am 71 years old. I have lived in my apartment for several years. My apartment has been in good shape, and my appliances have mostly worked just fine. However, recently there have been some problems. First, the stove stopped working. I emailed the landlord about it. He replied that he would fix it, but so far, he has not done anything about it. Then, the shower stopped working. I emailed the landlord about the shower, and again he replied that he would fix it. Now another week has gone by, and I am still waiting for the landlord to come and make the repairs. Mean-while, the rent is due in a few weeks. I am considering withholding part of the rent due to these problems.
Renters like Susan are faced with a tricky decision: whether or not to withhold rent in an effort to get the landlord to make repairs. The law does allow the tenant to withhold some (or all) of the rent in some situations, but it can be risky for the tenant to take this step. For example, if Susan chooses to withhold rent, her landlord could file an eviction for non-payment.
Before taking the step of rent withholding, Susan needs to ask herself the following questions:
Do the defective conditions “endanger or materially impair” Susan’s health, safety, or well-being? The answer to this question is yes; not having access to a stove and a shower at the very least certainly impairs Susan’s well-being, whereas a minor repair might not meet this standard.
Does the landlord know about the defective conditions? The answer to this question is yes; Susan notified the landlord by email.
Did Susan cause the defective conditions? The answer to this question is no; neither Susan nor anyone connected with Susan caused the stove and the shower to stop working.
Can the repairs be made without Susan having to permanently move out? The answer to this question is yes; both the stove and the shower can be repaired without Susan having to move out.
Susan has satisfied the above questions. She decides that she has had enough. She understands that there is a risk, but she decides to withhold half of her next rental payment if the repairs still have not been made.
Unfortunately, Susan is not aware that she can also contact the Board of Health for an inspection, which would put pressure on the landlord to make the repairs. Nevertheless, she takes the important step of notifying the landlord in writing about the rent withholding. She mails the landlord a letter listing the needed repairs, stating that she has already notified him and has given a reasonable amount of time, and notifying the landlord that she intends to withhold rent until the repairs are made.
Now, a few weeks later, the rent is due and the repairs still have not been made. Susan mails her rent check to her landlord for half the amount of her rent. She then deposits the other half of the amount for her rent in a separate account in case she needs to pay the landlord some or all of it later. Additionally, she has documented the needed repairs by taking videos with her cell phone of both the stove and the shower not working.
Susan’s landlord is not happy when he receives Susan’s check for half the amount of her rent. He then contacts his attorney to initiate eviction proceedings against Susan for non-payment of rent. However, once the landlord’s attorney learns of the series of steps Susan has taken, the attorney advises the landlord not to proceed with the eviction and instead to repair the stove and the shower as soon as possible.
The landlord’s attorney recognizes that Susan took the right steps in withholding rent. Accordingly, the attorney advises the landlord that Susan has a valid defense to the eviction and that the landlord would run the risk not only of losing in court but also of potentially having to pay Susan money damages.
In the end, Susan’s landlord fixes the stove and the shower, and Susan remains in her apartment. Susan and her landlord come to an agreement that she can keep the amount of rent she withheld (half of one month’s rent).
It is important to consider that many similar situations do not resolve quite so smoothly. This could have resulted in a contentious court battle with an uncertain outcome. Before withholding rent, it would have been a good idea for Susan to have contacted an attorney. Also note that some (or all) of the withheld rent money might need to be paid to the landlord after the repairs are made.
In this scenario, Susan chose to withhold rent and it worked out well for her. The landlord even agreed to let her keep the amount she withheld. Anyone in a similar situation should be aware that some (or all) of the withheld rent money might need to be paid to the landlord after the repairs are made.
If you would like to learn about alternative strategies you can use to get repairs made, see Mass Legal Help at https://www.masslegalhelp.org/legal-tactics and read Chapter 8 – Getting Repairs Made.
The information contained here does not constitute legal advice and is intended to provide a basic understanding of landlord-tenant law. This information is provided by South Coastal Counties Legal Services (SCCLS) which provides free legal services to eligible clients. There are no income criteria for adults age 60+ but individual representation is priori-tized to those with the greatest economic and social need. For information, call our intake line at (800) 244-9023.
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