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When can a tenant withhold part or all of the rent payment?

By Mina V. Garrey

Services for Real Estate Pros with Commercial Capital Properties - License #01768282

June 04, 2008 04:23 PM

If you have rental property anywhere in the country, you may have a tenant or two who either have mentioned not paying or have already been withholding part or all of the rent because something wasn't fixed in their unit. But when can a tenant actually withhold money from the rent payment?

In California for example, a landlord has the duty to maintain a unit in a habitable condition. Habitability takes into account things like the roof, running water, heat, sewage, properly maintained stairs, a bug-free unit and a few other ones. The law does not extend to things like landscaping, cable TV, spas etc. So first of all when a tenant threatens to withhold money from the rent payment make sure the issue falls into the habitability category.

Second, you would want to make sure the tenant has given you proper notice of the necessary repairs. A tenant can't just show up on the first of the month, when rent is due, and say they are not going to pay you because something wasn't fixed, if they never notified you of the problem in the first place. You should be allowed a reasonable length of time to take care of the issue.

If you have been given proper notice, the issue does fall into the habitability category and you still fail to make the repairs then the tenant can complete the work and then deduct the amount from the rent. Please note that the tenant has to "repair and then deduct", not just deduct the amount. You should also require the tenant to submit the receipt for the work completed. You can also require that any work is to be done by a licensed contractor, plumber etc. You don't want the tenant's friend coming over, messing with your building and then charging you for work that they were not allowed to perform in the first place.

Remember, a tenant can't just stop paying rent, because you can then file an Unlawful Detainer Action against them. So follow the following steps and you should be in good shape for handling a tenant repair complaint:

1. Require for a notice with a reasonable time frame to be submitted to you detailing the problem

2. Do the repairs

3. The tenant can do the repairs, give you a receipt and then deduct the rent from the next rent payment

So, Good Luck and continue investing!

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Mina V. Garrey

Commercial Capital Properties - License #01768282 - West Los Angeles, CA

Commercial Capital Properties, Los Angeles, CA

Hello Christina, I would have to agree, non-paying tenants should be removed from the premises. The longer we wait, the more more time and money we loose. As long as we remember to follow the local laws regarding Unlawful Detention procedures...

Jul 16, 2008 03:43 AM

Mina V. Garrey

Commercial Capital Properties - License #01768282 - West Los Angeles, CA

Commercial Capital Properties, Los Angeles, CA

Hi Renee, that is correct, most tenants do not understand the lease, there are many though that do understand it, are able to find loopholes in it and use it to their advantage. We have to watch out as landlords and managers to weed out the good from the bad.

Jul 16, 2008 03:46 AM

Kevin McGourty

Realty ONE Group - Phoenix, AZ

Interesting. I didn't know the tenant could do the repairs unless they had prior approval from the management. How long does a tenant have to wait after giving notice of repairs needed before they assume responsibility to make the repairs themselves?

Jul 16, 2008 04:48 AM

Leslie Prest

Leslie Prest, Prest Realty, Sales and Rentals in Payson, AZ - Payson, AZ

Owner, Assoc. Broker, Prest Realty, Payson,

It varies from state to state. In AZ the tenant has to give written notice, if the Landlord doesn't repond/fix they can have the repairs done BY A LICENSED CONTRACTOR and can then deduct the amount from the rent. They CAN'T do the work themselves or hire a buddy or handyman.
Sometimes we have to have parts ordered, and that can take awhile (we live in a small town), and tenants have to take that into account.

Here's a link to the AZ Landlord and Tenant Act for anyone interested in Arizona.

Jul 16, 2008 05:57 AM

Mina V. Garrey

Commercial Capital Properties - License #01768282 - West Los Angeles, CA

Commercial Capital Properties, Los Angeles, CA

Good afternoon Kevin, the tenant has to give the landlord/ manager enough time to fix the problem. There is no set time limit, but whatever would seem reasonable. For example, if the building is in Palm Springs, CA where the temperatures reach well above 100 degrees and it is mid Summer and the A/C goes out, I would say 3-4 days would be reasonable. If the apartment is located near the beach, however, where the A/C may or may not be needed on a daily basis, a week or two may still be acceptable. So, the tenant still has to notify the landlord/manager, but if they don't fix it, the tenant can do the repairs and then deduct the cost from the rent.

Jul 16, 2008 07:36 AM

Mina V. Garrey

Commercial Capital Properties - License #01768282 - West Los Angeles, CA

Commercial Capital Properties, Los Angeles, CA

Hi Leslie, that's exactly right, the work has to be performed by a licensed contractor and not just anyone. So, thank you for the comment.

Jul 16, 2008 07:37 AM

Scott Gilligan

Accuracy Assured Home Inspections, LLC - Philadelphia, PA

What if the tenant is a licensed contractor? Can they do the work themselves and bill the landlord? What if a friend or family member is also licensed?

Jul 20, 2008 02:58 PM

Mina V. Garrey

Commercial Capital Properties - License #01768282 - West Los Angeles, CA

Commercial Capital Properties, Los Angeles, CA

I would say that's up to you. You can require that any work be performed by a licensed contractor, so if you believe that the tenant is qualified or their friend/relative is, then by all means let them do the work. The only thing I would watch out for is being overcharged. After all, the tenant will get to deduct that amount from their rent. Thank you for your comment!

Jul 21, 2008 03:43 AM

Jack Climer

Jack Climer Realty, LLC - Springfield, MO

How do you know if the tenant has not jack up the quote based on his friends working for him as the GC. I always get 3 quotes for work that need to be repaired...just keeping every one honest.

Jul 22, 2008 04:34 PM

Mina V. Garrey

Commercial Capital Properties - License #01768282 - West Los Angeles, CA

Commercial Capital Properties, Los Angeles, CA

Hi Jack, you are right, you should get more than one quote. You definitely don't want to be taken for a ride on a price hike.

Jul 23, 2008 04:22 AM

Anonymous

Kevin

One of my tenant blocks, allegedly, the parking lot of another tenant (guests coming over, etc). The other tenant notified me in writing that if it happens again (after a few times in the past) he will withhold $300 from the rent.

I instructed him to call towing company any time he's blocked but he maintains that it's my problem to fix and if it happens again he will withhold the money.

I wonder if he can do it and if he's covered by law

Thanks,

Kevin

LA, CA

Oct 02, 2008 06:47 AM

#17

Mina V. Garrey

Commercial Capital Properties - License #01768282 - West Los Angeles, CA

Commercial Capital Properties, Los Angeles, CA

Good afternoon Jeff, to my knowledge the amount of rent a tenant can withhold cannot be just some random number. The withholding rule is not to make the tenant some money, but to reimburse them for the money that they spent on fixing a problem.

I would probably serve the tenant blocking the parking space a 3-day notice to cure the violation or quit. You can also ask the tenant who wants to withhold the rent to call you when their space is blocked and you can personally tow the vehicle to show good faith.

Good luck, I hope it all gets resolved.

Oct 02, 2008 06:59 AM

Brenda Harmon

Century 21 Beal, Inc College Station, Texas - College Station, TX

Laws do vary state to state.

I will never forget the movie Pacific Heights about the tenant that moved in and gave the

landlord untold grief. Check it out it stars Michael Keaton and Melanie Griffin.

Oct 04, 2008 03:45 AM

Mina V. Garrey

Commercial Capital Properties - License #01768282 - West Los Angeles, CA

Commercial Capital Properties, Los Angeles, CA

Hi Brenda, thank you for the suggestion. I will have to see the movie. But you are right, laws do vary from State to State, so it is always best to check with the local authorities.

Oct 04, 2008 07:04 AM

Sheila Moran

RE/MAX Access (Garden Ridge, San Antonio, New Braunfels) - New Braunfels, TX

SanAntonioSheila.com, RE/MAX Access, 210-32

Okay...I'm laughing at Brenda's suggestion of the movie!

My gosh, I have seen that and it's scary!

I'm only laughing cause I'm not a work dealing with all the properties ! HA!

Mina,

thanks for the good information...seems like people had a lot of questions!

Jun 05, 2009 11:57 AM

Brian Griffis

Realty Choice - Springfield, MO

Some of the renters I have heard of feel like anytime is a good time to withhold rent. A broker I know of told me he gives each of his renters one month free each year, whether he likes it or not.

Jul 18, 2009 03:55 AM

Anonymous

Michele

If the owner of the property that I am living in stopped paying his mortgage an is in the process of being foreclosed on but promises to resolve, can I withhold my rent?

Jul 01, 2010 09:55 AM

#23

Jo Adams

Jo Adams Properties Investment Property Specialist & Real Estate Services, LLC - Mountain Home, AR

Investment Property Specialist

In Arkansas, a very landlord friendly state, the tenant cannot withhold rent for repairs. They can however, sue the landlord for breach of contract if the lease says that item was to be kept in working order by landlord. ie: air conditioning, heat, water heater, etc....

Nov 26, 2013 11:15 PM

Bob Crane

Woodland Management Service / Woodland Real Estate, KW Diversified - Stevens Point, WI

Forestland Experts! 715-204-9671

I have had a few try things like this, fortunately in Wisconsin, there is no excuse not to pay.

Though they do have the option to sue to get some of it back at a later date if the place is not habitable.

Dec 18, 2015 07:39 AM

Michael J. Perry

KW Elite - Lancaster, PA

Lancaster, PA Relo Specialist

Your State’s Landlord & Tenant Act will trump most of this advice . Tenants usually can withhold rent when there are unresolved issues with Habitability

Jan 15, 2023 07:35 AM