What to do if instead of paying her rent for this month, my tenant says there was a major leak in the home and she used the rent money to get it repaired?

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What to do if instead of paying her rent for this month, my tenant says there was a major leak in the home and she used the rent money to get it repaired?

The rent amount is $1,200 and the leak costed $1,300 to repair. She did not give me a chance to contact my insurance company at all. Now I’ve started eviction procedures and we have a court date next Thursday. I looks like she is trying to avoid eviction and stay in my house indefinitely. Can she legally do that? Each month, find a problem and withhold rent?

Asked on June 25, 2015 under Real Estate Law, Georgia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

1) No, even IF she were allowed to apply the rent to the repair (see below), that was a one time thing--one she's applied enough rent to cover the repair, she has to pay rent again. So she can't stay there indefinitely.

2) There are times when a tenant may "repair and deduct" like this, but in order to do so:

a) the tenant has to give the landlord notice of the problem; and

b) the tenant has to give the landlord some reasonable opportunity to fix the problem

and only if the landlord fails to take action despite notice and opportunity, is the tenant entitled to make the repair and withhold the rent. Based on what you write, it is unlikely that she acted properly, so when you go to court, the court may disallow her self-help remedy and require her to pay that rent to you. Going forward, if she doesn't provide notice and opportunity, she should not be allowed to do this; and in any event, the problems would have to be provably real *and* also problems of a type that affect habitability. So a major leak that is causing flooding, mold, etc.--that is something that a tenant may fix under the right circumstances. A leaky faucet that is merely annoying--no.


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