Tenants’ rights guide: Withholding rent

🏘️ This article is part of our guide to tenants’ rights in Philadelphia. Got a question? Ask us using the form at the bottom of this article.

If your rental unit develops a serious maintenance issue that your landlord fails to fix, you do have some options. Among them: Withholding rent until the issue is repaired.

But there are some things you need to know first.

Withholding rent should be considered a “last resort,” says Holly Beck, a staff attorney with Community Legal Services of Philadelphia’s housing unit. Why? Because your landlord could try to evict you.

“The point at which a tenant stops paying rent is often when a landlord reacts,” Beck says. “The tenant is probably hoping that the landlord will react by fixing the serious repair issue. But the landlord may react by sending the tenant an eviction notice and filing a case to evict the tenant in court.”

But sometimes, withholding rent is justified. So when can you legally withhold rent, and how does the process actually work? Here is what you need to know:

The 1979 Pennsylvania Supreme Court Case Pugh v. Holmes established what is known as the “implied warranty of habitability” in the commonwealth, which essentially means you’re entitled to a safe and habitable home. If there is a serious repair issue, you may be able to legally withhold rent from your landlord until the problem is addressed.

Another Pennsylvania law, the City Rent Withholding Act, also allows tenants to withhold rent if their apartment is “certified to be unfit for human habitation.” But the issue has to be fairly severe.

“The law does protect a tenant’s right to withhold rent if there are serious, ongoing repair issues that impact the habitability of the unit,” Beck says. “We’ve had tenants that have had a roof cave in, or a window or a door is broken and the property isn’t secure. Infestations. Serious leaks that then cause mold to grow.”

If you are considering withholding rent, it’s a good idea to get legal advice before you start. You can contact the Philly Tenant Hotline at 267-443-2500 or PhillyTenant.org, or contact CLS at 215-981-3700.

You can’t just suddenly stop paying rent. The first step: Inform your landlord of the problem in writing, and give them a reasonable amount of time and access to your home to fix the issue. If nothing changes, then you might consider telling your landlord in writing that you plan to withhold rent.

The Rent Withholding Act calls for a government agency — such as the Department of Licenses and Inspections in Philadelphia — to certify that the issue has rendered the property uninhabitable. You may be able to withhold rent even without this certification, but Mike Carroll, a senior attorney with CLS, advises tenants to call L&I and have an inspection done in order to establish a paper trail. It’s also a good idea to take pictures and video of the problem.

“It puts pressure on the landlord to do the repair, and lends credibility to the tenant,” Carroll says. Beck agrees, and notes that notice from L&I is proof that “someone from the city looked at the property and agreed that there was something wrong.”

If you do end up withholding rent, you should also have an escrow account — or an account that is separate from your usual, personal bank account — where you can put each month’s rent when it is due, and not touch the money. You could also put the rent into money orders and document those, if you don’t have access to a bank. Either way, you should have the money set aside in the event of a court case, or if your landlord resolves the repair issue.

Bottom line: You may have to eventually pay all the money you withhold. Withholding is a tactic to get your landlord to address serious issues. Once the problems are fixed, you will have to pay all the rent you held back, unless you reach an agreement with your landlord or a judge agrees to give you an abatement — essentially a rebate.

There is no set rule on exactly how much rent you can withhold, and as a result, Beck says, it is “hard for tenants to know” the proper amount. The Housing Equality Center of Pennsylvania, says that you can calculate the amount by figuring out “how much of your home you could not use and for how long.”

Judges, Beck adds, may follow a similar formula should the matter end up in court. Often, that figure is based on the severity of the issue, and how much it affected your ability to “use and enjoy” the property.

But it probably won’t be the full amount of your rent. For example, Beck says, say a family is paying for a two-bedroom house but can only use one bedroom due to an ongoing mold problem. In that situation, a judge “is probably not going to release the tenant from paying all of the rent,” but may say that a quarter of the rent should be removed from the tenant’s balance.

You also have another right under the case Pugh v. Holmes known as “repair and deduct.” That involves making the necessary repairs yourself — or hiring a repair person to fix the issue — and deducting the cost from your next month’s rent.

“Sometimes, repair and deduct will do the job,” Carroll says. “The landlord might gripe and say, ‘I was about to do it,’ but if the repair was good, it is less likely to result in eviction action."

Repair and deduct requires many of the same steps as withholding rent, including giving written notice to your landlord, and allowing them a reasonable amount of time to fix the issue themselves. But if the repair problem is ongoing and nothing is being done, Carroll says you should inform your landlord in writing of your plan to repair and deduct, and provide quotes from repair people. You should also give a deadline of when you will repair the issue yourself and deduct the cost from your rent.

There are, however, some limits to how much you can repair and deduct as the tenant, Beck points out. Essentially, the cost of the repair can’t be more than the amount that you are going to be paying your landlord for rent across the remaining lease term.

So, what if your landlord threatens or evicts you for withholding rent? If your landlord threatens to evict you in these situations, Beck says, it’s “considered retaliation under the law.” And you do have some protections while you’re withholding rent or repairing and deducting — including guards from threats of eviction.

If that happens, you can file a complaint with the Fair Housing Commission, she says. “There are legal protections, and it requires a tenant to enforce their legal rights.”

Filing a complaint with the FHC, Carroll says, is “sort of a race to the courthouse,” and you should try to file your complaint before your landlord files an eviction case in municipal court. In that case, Carroll adds, don’t panic: the FHC must first be allowed to hold a hearing before eviction proceedings can begin. But if a landlord files an eviction case first, it’s up to the court to decide.

» READ MORE: Your rights as a tenant: Check out our tenants' rights guide.

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