Ask Sam: We deducted the cost of an emergency repair job from our rent, but our landlord insists we owe him. Is he right?

In an emergency situation when the landlord is not available, tenants can pay out of pocket for needed repairs and then deduct it from their rent—but if the landlord refuses to acknowledge the expense, they may find themselves in a tight spot, says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribben & Joseph, who represents residential and commercial tenants and tenant associations. 

Part of the issue is that there is no law on the books in New York State protecting tenants who do this.

“Some states have statutes saying that under certain circumstances, if the landlord doesn’t do required repairs, tenants can do them and deduct the cost from their rent payment,” Himmelstein says. “These are known as ‘Repair and Deduct’ statutes. New York doesn’t have such a law, except in a specific instance: If tenants get the notice that a utility like electricity, gas, or oil will be shut off because the landlord hasn’t paid the bill, they can pool their resources, pay the bill, and deduct it from rent.”

Landlords argue that other kinds of repairs aren’t protected under the law, and most leases forbid tenants from making alterations to their apartments without the landlord’s permission. Generally a tenant’s best bet is to reach out to their super or landlord about the needed repair.

But in an emergency, a tenant may have no choice but to handle it themselves.

“I advise clients not to repair and deduct except in two situations: If it’s an emergency, which means an essential service or item needs to be repaired, and it’s a weekend or a holiday, or your landlord is unreachable or can’t make the repair,” Himmelstein says.

This could apply, for instance, if you get locked out of your apartment or building through no fault of your own and must pay a locksmith to change the lock, or if you have only one bathroom and the toilet breaks.

In the case of other, non-emergency issues—say, a kitchen cabinet falling off the wall—if your landlord is unresponsive to repeated repair requests, start a paper trail.

“Make sure you send a letter to the landlord at least once requesting the repair,” Himmelstein says. “Then, if they don’t respond, write again and state that unless the landlord fixes the issue, you will do it at your own expense and deduct it from the rent.”

If you do the groundwork, in other words, you’re probably okay—but there’s no guarantee. For market-rate tenants whose landlords refuse to acknowledge that they paid out of pocket for a repair, and insist they owe them on rent, the question becomes whether it’s worthwhile to escalate the conflict.

“On a practical level, would it be worth going to court over the expense?” Himmelstein says. “If the landlord serves you with a rent demand, it may not make sense to hire a lawyer and go to the trouble of making multiple court appearances over a few hundred dollars.”

This is especially the case for market-rate tenants whose landlords could retaliate for the bother by declining to renew their leases—which is illegal, but difficult to contest. It’s also worth keeping in mind that going to housing court, whatever the reason, lands renters on the tenant blacklist.

In other words, if sending a letter and the receipt for the repair work doesn’t do the trick, the path of least resistance may be to just pay up.

Related: 

Ask Sam: My landlord won't renew my lease. I think he's retaliating against me, but how do I prove it? (sponsored) 

Ask Sam: What are my rights as a NYC renter in a market-rate apartment? (sponsored) 

Ask Sam: Repairs are forcing me to move out for a month. Should my landlord pay me to relocate? (sponsored)

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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 & 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.