Can I be evicted for withholding rent after repeatedly requesting repair to my leaking roof and radiator?

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Can I be evicted for withholding rent after repeatedly requesting repair to my leaking roof and radiator?

I have made several attempts to contact management about major repair issues via email, phone, and their on-line request form but have received no response. I then asked for a rent reduction until the items were repaired and received no response. So, this month I withheld my rent because I felt I had no other option. The issues are: a) leaking roof and falling/bubbling plaster due to unfinished roof work, as I live on the top floor; and b) inadequate heat and leaking radiator causing a warped floor. Today I received a 3 day eviction notice via email for past due February rent.

Asked on February 25, 2011 under Real Estate Law, New York

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Well yes, your Landlord or the management company on their behalf, can indeed start what is known as a summary proceeding against you for non-payment of rent.  It would be to evict you and fr a judgement for back rent. If you have not withheld the rent yet then I suggest that you instead go down to court and beat them to the punch, requesting that the court force them to repair the apartment (bring pictures) and asking the court to allow you to pay your rent in to court until the apartment is habitable and ask for a rent abatement.  The courts do not like self help.  This is a better alternative.  Good luck.  

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Unfortunately, you probably can be evicted for withholding rent--by doing so, you are in breach of your lease. While the landlord has an obligation to make repairs to the premises to affect conditions affecting habitability, the prefered way to deal with a recalitrant landlord is to bring a legal actioin to force him to make repairs and/or for monetary compensation. While there is a remedy called "repair and deduct" under which a tenant can make the necessary repairs  and deduct the cost thereof from rent, (1) you have to actually make the repairs; (2) the costs must be necessary, reasonable, well-researched (e.g. several quotes), and well-documented and proven; (3) ONLY the amount to make the repairs may be withheld, and only in conjunction with making repairs. There is no general right to simply withhold rent to force a landlord to act, so you are in breach of your lease. You should pay the rent to avoid eviction and sue your landlord if necessary in regards to the repairs. (Note: the repair and deduct remedy is disfavored, is contested by landlords, and is tricky to do without being evicted; hence, you shouldn't try it without a lawyer, and if you're going to get a lawyer, you may as well simply bring a legal action rather than risk breaching your lease.)


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