What to do about our late rental payment and a landlord who has not made repairs?

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What to do about our late rental payment and a landlord who has not made repairs?

I would like to know if we can withhold rent from our landlord for not making repairs to our home. We just moved into a 3 bed house and the landlord said he would replace a back

window there was a book case in the wall and the wood was rotting he said he would replace it and there it just a piece of cardboard where the window should be. We haven’t had water pressure in the kitchen for over 2 weeks. I told him that we would be late on the rent this month about 14 days ago because our son had to be flown 3 hours away and was in the ICU for a week but in the hospital for almost 2 weeks. He called me several days ago and told me to go

get a loan or whatever we need to do because he needs to pay the property tax for the house we are staying in. In our lease it just says that if we pay rent past the 3rd of the month we have an $80 late fee.

Asked on July 8, 2016 under Real Estate Law, New Mexico

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

1) Rent is due on the 1st; even if there is  no late fee unless paid after some other date (e.g. the 3rd or, as is more common, the 5th), it is still late if not paid by the 1st. If rent is not paid when due, the landlord can bring an action to evict you.
2) Your family's medical or economic issues (e.g. your son in the ICU) is a not a legal defense to failing to pay rent: you can be evicted for not paying even if you had a great reason for not paying.
3) The landlord is obligated to provide a "habitable" premises by the "implied warranty of habitability"--an obligation added by law to all leases. Failure to do so can justify the tenants in withholding rent until the problem is corrected (assuming they first gave the landlord written notice of the problem(s) and a reasonable amount of time to correct them). No water in the kitchen could be a violation of this warranty, but merely low or bad pressure would most likely not be--the problem must render the premises not reasonably habitable, not merely reduce its desirability, or be inconvenient or suboptimal. Rotting interior wood is not a habitability violation. A window covered over with cardboard might be a violation *if* it is allowing significant leaks or drafts in, is a significant security problem, or reduces natural light be a considerable margin. The problem with withholding rent on this basis, especially if the issues are "on the margin" of being serious enough, is that if you do and the landlord tries to evict you, you'd have to then convince a judge that you were warranted in withholding rent. If a judge disagrees and feels the problems did not justify withholding, you'd have to be able to pay all the rent due *that day*in court to avoid eviction.


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