Ask Sam: When can tenants legally withhold their rent?

There are three main scenarios in which tenants can withhold rent payments, a tactic that can be extremely effective at getting landlords to address problems in their buildings, says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribben, Donoghue & Joseph, who represents residential, commercial tenants, and tenant associations.

“Going on rent strike used to be the most effective way to get your building fixed up,” Himmelstein says. “You’d form a tenant association with dozens of people withholding their rent, which meant the landlord had to start multiple separate cases in housing court. It was a very powerful weapon.”

Usually, landlords would end up settling with their tenants, to avoid going to trial for multiple cases, a lengthy and costly process.

The beginning of the tenant blacklist—data collected by screening companies listing tenants who have gone to housing court, which gets passed on to landlords—put a damper on this. Tenants who are blacklisted often find that landlords refuse to rent apartments to them.

“Tenants became afraid to withhold rent, because if they were named in a court case they’d be blacklisted,” Himmelstein says. “The new rent laws softened that. They now say you can’t be denied an apartment solely for being on the blacklist, so we’re hoping tenants will resume using rent strikes.”

The blacklist hasn’t been eliminated completely, and being on it still comes with the risk of having difficulty renting an apartment, though if you suspect this is happening to you, you can file a complaint with the attorney general’s office.

That said, withholding rent is still a good strategy for getting your landlord to act. Here are the instances in which you can legally use this tactic:

You’re living under poor conditions

“The main reason tenants withhold their rent deliberately (as opposed to not paying rent because they’re in financial distress) is to force a landlord to do repairs, and possibly get a rent abatement, because they’re dealing with bad living conditions,” Himmelstein says. “They have a right to do that because of the warranty of habitability.”

This law guarantees renters the right to a safe and livable apartment. Conditions that violate this law include a lack of heat, gas, water, or electricity; a pest infestation; leaks; mold; lead paint; fire or smoke damage; and more.

Under the Warranty of Habitability, tenants’ obligation to pay rent is dependent on their apartment being habitable, so if it isn’t, they can legally withhold their rent payments. When their landlord takes them to court for non-payment, tenants in this situation can then defend themselves on the grounds of a violation of the warranty of habitability, and generally obtain rent abatements and an agreement or court order that the repairs will be done and services restored.  

Your building has a C of O violation

Another reason to withhold your rent is if your building’s certificate of occupancy is not up-to-date, or non-existent.

Any building that was built after 1938—or has been renovated since that date—must have a valid C of O, which specifies the building’s legal use and occupancy.

“If the landlord is violating the certificate of occupancy, or the building doesn’t have one when it should, the multiple dwelling law says that tenants don’t have to pay rent,” Himmelstein says.

He cites one case in which a landlord illegally removed the fire escapes from several lines of apartments in a building, and therefore was unable to update the C of O. The tenants, who were represented by his firm, withheld their rent in response, and a trial court and two appellate courts have since ruled in their favor. As of now, the tenants have withheld over $1 million in rent, which the landlord will never be able to collect.

You’re being overcharged on rent

If you believe you’re being overcharged—which might mean you’re supposed to be rent-stabilized but aren’t, or you are rent-stabilized but the landlord raised your rent by an amount above the legal limit—you can withhold rent.

“If you believe you’re being overcharged, you can challenge that by withholding rent. When the landlord sues, put in your defense that the rent is illegal, and make a counterclaim for rent overcharge,” Himmelstein says.

When a landlord sues for nonpayment, they have to specify whether the apartment is rent-stabilized, rent-controlled, or market-rate, which gives tenants the opportunity to dispute that.

These cases can be litigated in either housing court, the Supreme Court, or the Division of Housing and Community Renewal, and there are pros and cons to each option.

“The advantage of housing court is that the judges know this stuff—it’s all they do,” Himmelstein says. “But in Supreme Court, you get broad pre-trial discovery, which means you can subpoena all relevant documents and depose your landlord and their contractor, if they’re claiming they did work to justify a rent increase, and you don’t need the permission of the court to do so.”

You can file a motion for discovery in housing court, and although these motions are routinely granted in overcharge cases, there may be stricter limits on how much time you have to gather materials, the documents you can obtain, or who you can depose in the case.  

Himmelstein rarely recommends filing these cases at the DHCR since there is no discovery there, and the cases are usually decided on paper submissions alone, which allows for the landlord to submit fraudulent documents with no opportunity for questioning or cross examination. The sole advantage to filing at the DHCR is that if a tenant hires an attorney it is the least costly forum in which to pursue the claim.

Whatever you decide, there’s strength in numbers, so you should consider forming a tenants association before you take action against your landlord.

Related: 

Good news: The new rent laws just made it easier to challenge your rent-stabilization status (sponsored)

Ask Sam: What happens if my building doesn't have a certificate of occupancy? (sponsored)

Ask Sam: How do I start a tenants' association? (sponsored)

Ask Sam: What kind of problems qualify me for a rent abatement? (sponsored)

Read all our Ask a Renters Rights Lawyer columns here.

Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.