When may tenants make deductions from their rent?

When landlords lease or rent residential property there is an implied warranty of habitability. This means that they must provide a safe and habitable living space at all times. If landlords fail to provide this, tenants have the option of withholding all or part of their rental payment until the problem is fixed.

Note that certain elements must normally be present for tenants to legally make rent deductions. For this reason, it is advisable to consult a real estate attorney before making deductions. These elements include the following:

  • The landlord must have knowledge of the defect or condition. It is recommended that the tenant save proof of multiple requests made to the landlord to fix the problem. Emails works best for this.
  • The defect or condition must endanger or materially impair the health, safety, or well-being of the occupants.
  • The defect or condition must not have been caused by the tenant or an agent or invitee of the tenant.
  • The defect or condition must be present inside the rental unit or substantially interfere with the tenant's occupancy.

With commercial property, there is no warranty of habitability. Instead, the terms of the contract will be the primary controlling factor of when rent may be withheld, if at all. Still, courts in some states have said that an implied warranty of suitability and fitness for a particular purpose exists for commercial leases.

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