Ask Altagracia: My apartment lacks heat. Am I taking a risk if I withhold rent and use it to pay other bills?
- A judge may order repayment quickly if withheld rent exceeds a justified amount
- Keep a record of your complaints to the landlord to strengthen your no-heat case
If the judge finds the rent reduction should have been smaller than the amount withheld, you can still be ordered to pay what is due.
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I stopped paying rent because my apartment didn’t get enough heat, and the landlord filed a nonpayment case against me. I used the rent money to cover other bills, and now I’m worried about what will happen if the court orders me to pay it back. Am I taking a risk?
In New York, a lack of heat is a violation of the warranty of habitability. This provides a level of legal protection to ensure tenants have safe living conditions. “In a nonpayment case, courts can award a rent abatement when conditions made the apartment unsafe or unlivable,” said Altagracia Pierre-Outerbridge, attorney and founder of Outerbridge Law representing residential tenants, condo owners, and landlords.
Even so, using withheld rent to cover other bills is a high-risk decision. “Withholding rent is not a free pass,” Pierre-Outerbridge said. If the landlord has not agreed to the level of rent abatement in negotiations before trial, you will have to prove your case in court.
What happens if you withhold too much
If the judge finds the rent reduction should have been smaller than the amount withheld, you can still be ordered to pay what is due. In some cases you may be given just a few days to produce the funds. That’s often not enough time to raise the money or secure rent assistance.
“This is why it makes sense to keep withheld rent available rather than spending it,” Pierre-Outerbridge said. You don’t need to formally escrow it, but you do need to have it and be able to access it quickly. “Using that money for other bills increases the risk that, even if you win some abatement, you may not have enough on hand to satisfy the court’s order,” she said.
The risks of being unable to pay what’s due
If you have the money on hand you have more leverage. Without it, you could find the court issuing a judgment against you or steps taken towards your eviction.
In a case like this, the documentation you have will be crucial. Ensure you have a record of your complaints to the landlord as well as any Department of Housing Preservation & Development violation notices. “Also relevant are photos, temperature records, repair requests, and proof of how long the no-heat condition lasted,” Pierre-Outerbridge said.
Altagracia Pierre-Outerbridge, Esq. is the owner of Outerbridge Law P.C, focusing primarily on tenant representation. The firm represents all sides in landlord-tenant litigation and transactional matters such as month-to-month holdovers, nuisance cases, licensee cases, harassment claims, repair cases, tenant buyouts, succession claims, DHCR overcharges and rent reductions and more. Pierre-Outerbridge has 15 years of experience litigating in Supreme, DHCR, and Housing Court. To submit a question for this column, click here. To contact Outerbridge Law P.C. directly, call 212-364-5612 or 877-OUTERBRIDGE, or schedule a meeting today.
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