Written by attorney Christopher Saccardi

Requirements for Lawfully Withholding Rent

The following is a brief overview of the requirements for lawfully withholding rent in Massachusetts, however the general circumstances will be similar across states. It is important to note that every case is different and most tenants may benefit from speaking to an attorney to make sure that the problems in their apartment are, in fact, serious enough, and that the manner in which they intend to withhold rent will be sufficient to withstand the scrutiny of a Housing Court judge.

A tenant may withhold rent if their landlord fails to make repairs required to ensure the health, safety, or well-being of the tenant.

In order to lawfully withhold rent, however, tenants must be careful to follow the guidelines below:

  1. The landlord must have known about the bad conditions in the apartment before the tenant was behind in rent. This means that a tenant can’t fall behind in rent and then later claim that the arrearage is due to lawful rent withholding. Tenants should take care to notify their landlords in writing so that they have evidence that the landlord was on notice. Alternatively, notice can be achieved if the landlord received an inspection report or if he was otherwise aware of the problems;
  2. The bad conditions in the apartment cannot have been caused by the tenant or anyone under the tenant’s control (other household members or guests, for example);
  3. “The premises [cannot be] situated in a hotel or motel, nor in a lodging house or rooming house wherein the occupant has maintained such occupancy for less than three consecutive months"; and
  4. The necessary repairs can be done without the tenant vacating the unit, except for the need to vacate temporarily to abate a lead paint condition.

There isn’t actually any requirement in the law that a tenant give written notice to the landlord of the rent withholding, but doing so is certainly a good idea, especially if there is a chance a tenant may eventually need to argue in court that they lawfully withheld rent.

There is also no requirement that a tenant put their withheld rent into an escrow account. It is important, however, that tenants do not withhold rent and then spend all of the money they would otherwise have paid in rent. This can lead to trouble down the road if a judge later finds that the tenant needs to pay all or some of the back rent – if the tenant does not have the money, they could lose their apartment.

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