Ask Altagracia: I withheld rent due to inadequate heat and I'm being hassled to pay it back. What should I do?
- You can be proactive by negotiating a rent reduction agreement and get it in writing
- Consider getting legal advice helps to avoid lowball deals and expensive litigation
To avoid a lawsuit, the best option is to come to an agreement with the landlord, and get it in writing, Pierre-Outerbridge said.
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I withheld rent this past winter because of inadequate heat. Management keeps hassling me to pay it back. What should I do?
There are two paths forward if management is asking you to pay rent that you withheld due to a lack of heat. You can negotiate a deal with the landlord or you can wait for your landlord to sue you. “If you don’t want to be sued, you can take the more proactive approach and come to an agreement,” said Altagracia Pierre-Outerbridge, attorney and founder of Outerbridge Law representing residential tenants, condo owners and landlords.
Your management company or landlord may continue to invoice you or put reminders under your door. If, however, the behavior crosses into harassment, that’s illegal. You can file a lawsuit against your landlord if they interfere with your use of the building.
It’s important to remember that all tenants in New York City are protected under the warranty of habitability, a legal requirement ensuring landlords provide safe and livable conditions in apartments and common areas. A lack of heat is a breach of the warranty of habitability.
“You are going to want to figure out the financial effect the lack of heat had on you in addition to the habitability issue,” Pierre-Outerbridge said.
Negotiating a deal with the landlord
To avoid a lawsuit, the best option is to come to an agreement with the landlord. “And get it in writing,” Pierre-Outerbridge said. This could be a text message where you say you are going to pay 70 percent of the rent for the month because of the heat problem and the landlord responds in agreement. “That would hold up in court,” Pierre-Outerbridge said.
A range of factors will determine how much rent you can reasonably withhold, including how long the heat was inadequate and what the landlord did to mitigate it. As a tenant, you have leverage over your landlord via your monthly rent payments. Be sure to wait until you have the written agreement from the landlord before you pay.
Getting legal advice from an attorney can be helpful as you negotiate. “An attorney can identify a laughable lowball offer from a landlord,” Pierre-Outerbridge said. Getting a lawyer before litigation is typically cheaper than getting a lawyer when you are in litigation.
Entering into litigation over lack of heat
If you can’t come to an agreement, a judge will decide what is owed. Litigation will most likely come from the landlord suing you for non-payment and trying to evict you.
“You have a defense, which is a lack of heat, but you still cannot ignore a notice of eviction—you need to go to court and explain the situation—or you will lose the case,” Pierre-Outerbridge said.
Unless the heat issue was so bad that you moved out—and it effectively became a constructive eviction—you are not going to be able to withhold 100 percent of your rent for a lack of heat. “Constructive eviction allows you to sue your landlord, arguing the condition of the apartment was so intolerable you were forced to vacate,” Pierre-Outerbridge said.
One caveat is that lawsuits are expensive. It is very rare to settle a landlord-tenant matter without two or three appearances in housing court, which can typically cost, at a minimum, a low five-figure sum. In comparison, a watertight agreement will be in the low four-figure range.
“We tell our clients to expect to spend around $7,500 for an iron-clad agreement. That same issue, litigated at trial, could be $30,000,” Pierre-Outerbridge said.
Strategies for effective outcomes
There is often strength in numbers when dealing with these issues in your building. If a group of tenants are working together, and negotiating together, there’s more leverage and the cost to each individual is less.
This comes down to economies of scale. “It involves roughly the same amount of work for us to cover one tenant as it does to cover 10 tenants and you can split the cost,” 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.
