What are my rights regarding withholding my rent?

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What are my rights regarding withholding my rent?

I live in a rental home with a year lease. During my tenancy the landlord rented out the basement to a gentleman. I pay all utilities. The basement is an illegal apartment and the authorities had told the landlord the tenant had to move out. It has been over 4 months and he is still there. I refused to pay my rent last month due to him still being there and me personally asking the landlord to ask him to leave due to heavy usage of utilities (at times my utilities reach over $500 a month) . Am I in my rights as a tenant?

Asked on November 2, 2011 under Real Estate Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

As a general matter, the only time a tenant may withhold rent is IF there was a serious condition affecting habitability (broken furnace, major leaks, etc.) which the landlord refused to fix after notice, and where the tenant then paid for the repair him/herself. In that case, the tenant may often withhold an amount from rent equal to the cost of the repair.

If the premises you rented included the basement, but even though the landlord had rented the basement to you (as part of the larger premises) he then rented to someone else, too, you would likely have  grounds to terminate your lease for this  major breach and move out, and/or seek compensation for the period of time you have been deprived of some of the use of  some of your space. You  might also have grounds for additonal compensation for the excessive utility use. You'd have to sue the landlord for this mone.

If you had not rented the basement space however, then the landlord is free to rent it to someone else. (That it's an illegal apartment does not affect you or give you rights, though you could report the illegality to the town code enforcement or building authorities.) In that case, you'd possibly have some recourse or right to sue for the excessive utility usage and the costs being imposed on you, though you'd have to reference the exact terms of the lease regarding utilities to see exactly what your rights are.


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