Tenants have the legal right to withhold rent when their landlord fails to provide safe and habitable housing. This right is protected under Real Property Law § 235-b, known as the Warranty of Habitability.
When Can Rent Be Withheld?
A tenant may choose to withhold rent if serious repair issues or code violations exist, such as:
- No heat or hot water
- Mold or persistent leaks
- Unsafe wiring or pest infestations
- Other major health or safety violations
Before withholding rent, the tenant must notify the landlord in writing of the issues and give them a chance to fix the problem. It’s also best practice to contact Code Enforcement to document the violations officially.
⚠️ Important Note: Put Withheld Rent in Escrow. Tenants should not spend the rent money they are withholding. Instead, set it aside in an escrow account or separate savings, in case the court requires you to pay some or all of it later.
What Happens If the Landlord Sues?
If a landlord sues for nonpayment, the tenant must appear in court and raise the issue of uninhabitable conditions. Tenants can request the court to:
- Stay the eviction proceedings until repairs are made
Based on RPAPL § 755 - Reduce (abate) the amount of rent owed due to poor conditions
Based on RPL § 235-b - Order repairs, especially when the landlord is trying to terminate the tenancy
Based on UCCA § 203
I’m being Evicted
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What Should Tenants Bring to Court?
To prove their case, tenants should bring:
- Official Code Enforcement reports
- Photos (printed, ideally in triplicate)
- Written communication with the landlord about the issues
- Any receipts for repairs made or items replaced due to the condition
What Tenants Can Expect in Court
- The court may require tenants to deposit some or all of the withheld rent before ruling on their case. This could happen at the first appearance.
- If an abatement (rent reduction) is granted, it is often no more than 25%, unless conditions are extreme.
- If the court sets a new amount owed, the tenant usually has one week to pay in full.
- ✅ If paid: tenancy continues
- ❌ If not paid: the eviction may proceed
⚠️ Risks of Withholding Rent
- If you fail to appear in court or don’t have rent available when required, you may be evicted.
- If you didn’t give notice to your landlord or didn’t have documentation, your defense may be weaker.
- Withholding rent is risky without legal support or documentation—consult a tenant advocate whenever possible.