In certain states, tenants are allowed to withhold some or all of their rent until their landlord makes major repairs. In New York, rent withholding is legal—but the process isn’t laid out as clearly as it is in some other states. That said, tenants should always inform their landlord and allow them a reasonable amount of time to fix the problem before withholding rent. In addition, they should always keep records of the problem in case they have to go to court.
Rent withholding is only allowed in certain situations
Not all problems with a rental unit qualify for rent withholding. Every renter is New York is guaranteed an apartment that’s free of dangerous or hazardous conditions—a concept known as the “implied warranty of habitability.”1 Rent withholding is only allowed if the problem is a breach of New York’s warranty.2 Generally, these are major problems: a lack of heat or hot water,3 for instance, or excessive noise from a neighboring apartment.4 Water stains on the ceiling or a missing smoke detector5 are not breaches of the warranty, however.
In New York, it’s also considered a breach of the warranty if the apartment doesn’t comply with the renter’s reasonable expectations. For instance, if a landlord promised access to a parking spot when a tenant signed the lease—and then the parking spot wasn’t available for months because of construction to the building—that might be considered an acceptable reason to withhold a portion of the rent.
Rent withholding isn’t explicitly outlined in New York law
New York law recognizes a tenant’s right to withhold rent, but it does so in a backdoor way. The law never explicitly states that tenants have the right to stop paying rent until their landlord makes major repairs—but it does prevent landlords from evicting tenants who do so.6 Since eviction is a landlord’s most powerful tool to make sure that their tenants follow the law, this effectively creates a right for a tenant to withhold rent.
As one case notes, “The only meaningful weapon a tenant has against a landlord for refusing to maintain the premises in a habitable condition is to withhold rent. If a tenant fears that withholding rent could cause lease termination automatically, a tenant would be deterred from asserting a breach of the warranty of habitability.”7
As a result, the process for rent withholding in New York isn’t as regimented as it is in some other states. But as a tenant, there are some good rules of thumb to follow.
Tenant must notify their landlord of the problem before withholding
Before withholding rent, a tenant must notify their landlord of the problem with their rental unit. Then, the landlord has a “reasonable” amount of time to make the requested repairs. What’s reasonable varies depending on the facts of the case. In one case, the tenants complained of buckling floors due to water damage, and the landlord replaced the floor tiles within three to four days of being notified. The court ruled that this was a reasonable amount of time to wait for such a repair.8 In another case, however, the court ruled that 18 hours was too long to wait for repairs on a broken front door lock.9
Tenants should keep records of the conditions in their apartment
A tenant should also be sure to thoroughly document the problems in their rental unit, in case they go to court. In a 2002 case, a tenant argued that his rental hadn’t been heated to the minimum temperatures required by New York City law. However, since the tenant couldn’t prove the dates, duration, and intensity of these periods without adequate heat, the court decided he wasn’t entitled to withhold rent.10
Tenants should store the withheld rent until the issue is resolved
It’s recommended that a tenant deposits their withheld rent in a separate account until the issue is resolved. A court may decide that, although a breach of the warranty of habitability has occurred, it only reduces the amount of rent owed, rather than eliminating rent entirely. In Ludlow Properties, LLC v. Young, for instance, the tenant was only entitled to a 45% reduction in rent due to the presence of bedbugs in the apartment.11
 Eke v. Aynaru, 2002 WL 1275132 (N.Y. Sup. Ct. March 15, 2002)
The information provided on this website does not, and is not intended to, constitute legal advice.