Can I withhold my rent?

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Can I withhold my rent?

I recently rented an apartment. When I viewed the unit, I noticed that there was some water on the bathroom floor but generally liked everything else about the area and building, so I decided to go ahead and rent. I wrote on the contention box in the lease that I would rent the apartment if this issue was addressed. Flash forward to my move in date, I find a sponge underneath some pipes that is full of water in the bathroom. I throw away the sponge, not thinking twice. Hours later the bathroom floor is covered in water. The building engineer came to look at the leak and said it had been an issue for some time, however they had held off on fixing the problem due to the scope and cost of the job. I had to push my move in date back 2 days as I was told this would be fixed in this timeframe and it was not. I have been reading city code and think that I am within my tenant rights to withhold my rent until this problem is addressed as they are violating an ordinance. There is stagnant water on the floor and the pipes are leaking and not functioning properly. Also the water is leaking from the radiator so it is extremely hot where the leak is. I am a happy to pay my rent but it is a 2-way street. I can’t even use the bathroom at times because there is too much water on the floor. So, am I within my rights to withhold payment until this is properly fixed since they have known about the issue for over a

month?

Asked on February 28, 2017 under Real Estate Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

You may be able to withhold your rent because you are describing a condition that can affect habitability: stagnant water and persistent leaks, and especially leaks from/near radiators, can pose health hazards by contributing to mold, etc. growth. (That's why a leak near a radiator can be more problematic: hot and wet conditions are ideal for mold.)
Be aware that while as set forth above, the potential health risks create an arguable case for withholding rent, this is not as strong or straightforward a case as if, say, there was no heat or hot water, which clearly and undeniably affect habitability. A court could potentially look at this situation and conclude that while the leak is undesirable, it does not rise to the level of impairing safe inhabitation and therefore require you to pay the rent. Therefore, if you are going to withhold rent, do NOT spend it--keep in the bank (so to speak) and available in case the landlord seeks to evict you for unpaid rent and a court sides with him, requiring you to pay the withheld rent to avoid eviction.
Don't put too much stock in code or ordinance violations: code violations which do not affect habitability do not give rise to a right to withhold rent (though they can lead to the landlord being fined by the municipality).


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