Does withholding rent work when the tenant doesn't set up an escrow?

Question

Hello all,

I have a tenant that I started the eviction process with and I would like to know if anyone has dealt with a similar situation.

My first mistake was letting the tenant move in without paying all the money upfront. She said she would pay it by the next Friday and it didn't happen. In the meantime, the oven part of the stove stopped working, the burners still worked. I came by to try and fix it and I couldn't. I told her that when she paid the rest of the money that I would buy her a brand new stove. She said OK.

She never paid the rest of the money even though we talked multiple times about setting up a time to pay and she said she was going to. I figure she is not ever going to pay, but I can't evict off of her not paying the amount to move in, so I have to wait until she doesn't pay rent. She didn't pay the rent for the next month. I served the notice to quit and I called her multiple times and left messages. Finally, she calls me back and says she has all the money but things need to be fixed. I tried to work a deal out with her, but she didn't want to give me any money. She claims that she doesn't have to pay rent because the oven needs to be fixed.

I thought that in CT, one could only withhold rent if there was a health and safety concern. If there was something of concern, she would have to file a complain and then put the money in an escrow account. I looked at the actual law and it does say that the landlord is responsible for appliances, but she hasn't filed a complaint and she didn't tell me she wasn't going to pay until after I served the notice to quit.

So my questions are, have you dealt with situations similar to this and do you think her reason for not paying will hold up in court?

Randy E. · Answer

@Mat O'Grady, generally in many states, you're right that tenants cannot withhold rent for non-emergency non-uninhabital problems.  On the other hand, it really doesn't make a difference in your case.  Whether or not you're legally right in demanding rent, you cannot force the tenant to pay you.  Further, you don't know if the tenant actually has the money and intent to pay you in the first place.  AND, you'd be foolish to spend more money on a tenant who has owed you money from day one.  So, you need to initiate legal eviction proceedings.

I don't know if you have your property in an LLC and are required to get a lawyer as @Michael Noto, surmised.  But if he's correct that you do have the property in an LLC and you need a lawyer anyway, then the lawyer can handle everything.

If your property is not in an LLC and you decide to file for eviction on your own, you can request, in eviction court, the unpaid rent be added to the amount owed you.

But you have learned a valuable lesson here.  NEVER allow a tenant to move in without paying at the security deposit AND the first month's rent.

Good luck.

Account Closed · Answer

in many states it is illegal to with hold services due to non payment of rent.I hope repairs don't fall under that category

Mat O'Grady · Answer

Just to provide some closure. She didn't show up to her court date. I got a judgement in my favor. I called her the night before she was suppose to be out to arrange picking up the keys. She says she reopened the case. I called the court and they allowed her to reopen int for 18 days later. I went to the court date and she didn't show up. I got a judgement in favor with prejudice, which means the case cannot be reopened. She tried 3 times to reopen the case and they were all denied. She was suppose to be out today and I went over and there was garbage and a few holes in the wall. It looks like she is gone. I called her but didn't get her. I changed the locks. Now I need to fix holes and clean. Hopefully I can get it ready for rent in a couple of weeks.

Brandon Hicks · Answer

I buy pretty nice used stoves for $75-100 quite often. Try that right off the bat next time. Maybe it would have helped here, maybe not.

Good Luck

Mat O'Grady · Answer

Edward B.Yeah, I probably should have just fixed the oven, but I was trying to give her an incentive to pay faster and I didn't think she could legally withhold rent for part of an appliance not working, unless it was a health and safety hazard.

@Daniel RaposoI already tried to pay her to leave. When I served the notice to quit, she told me the place was infested with bugs and there were holes in the house where animals could get in. I went to check it out and she could show me no bugs. The hole in the floor in the basement was for the sump pump. I told her that I don't think I can solve her problems and that I would give her back her security deposit and she could find another place to live. She said no. I told her that if she goes to court there will be an eviction on her record. (When I did the background check, there was no eviction listed, but I think that is probably a mistake) She said she didn't care about having the eviction on her record.

I am already at the last process for the eviction. Our court date is on August 18th and the judge will make the decision and I am hoping it will be in my favor.

Edward B. · Answer

It is typically best practices to keep rent and repair separate. Don't withhold repairs because they didn't pay rent and don't allow them to withhold rent because of repairs. I am going through a similar situation where the tenant wants to withhold a portion of the rent, but that is a dangerous precedence to allow to happen. If you allow it they will do it again. You need to maintain the higher moral ground so that you can show good faith when it does go to court, so always make repairs in a timely manner. Keep everything on the up and up and the judge most likely will side with you.

Having said that, I would do everything legally possible to evict this tenant now. I guarantee that you will be evicting them eventually so the sooner the better. They have shown their true colors and will be nothing but trouble. Double check your screening process too, it is unlikely that this is the first time they have given a landlord trouble.

Daniel Raposo · Answer

I would try to get her to just move out. Tell her she has gotten to live in the place for practically nothing for a month and rather than go through an eviction it would be easier for both of you if she just left. Give her some time to get out and have her sign some sort of agreement to that effect. At this point you don't want her there and unless she is doing this all just to get free rent, she is probably upset about the stove and may not want to be there long term either. Try to get her to agree to leave in writing, but have an attorney start eviction immediately just to be safe.

Mat O'Grady · Answer

I thought everything was fine. We actually had a conversation about how she was setting up the direct deposit and that the money should be transferred soon to my account. She called to check if it was transferred and everything. It didn't get done and there were some excuses and then the grace period for paying passed and a filed the notice to quit. I thought she would just pay the money and I wouldn't have to evict. After three days of calling and trying to get a hold of her, she finally called me back and said she would pay but she would need the things fixed first. I didn't trust that she would pay me the money for the rent, so I said if she paid me some of the money now that I would get a new stove and then she could pay me the rest after. She said no, I believe because she didn't have the money. I thought that tenants can only withhold rent if they get a building inspector to state that the apartment had health and safety issues. I told her that. She still thought that I needed to fix the oven. I said that I would have to go through with the eviction if you don't want to pay. She said fine I will go to court. When we went to the mediator he said the apartment would have to be uninhabitable in order for her to withhold rent and even then she would have to have a building inspector come. I am just hoping that the Judge will say the same thing.

Does anyone know of a similar case?

Matthew Paul · Answer

Are you sure she notified you ?     If the lease says mailed , it needs to be mailed . The tenant can always claim they called and told you anything , its their word against yours . Now that you will probably need to kick them out for not paying rent , they will claim they didnt pay because of repairs . Calling it a retialtory eviction .

Mat O'Grady · Answer

Thanks for the responses. I have already gone through with doing everything for the eviction. I went to mediation and I told her I wanted her to leave and she said she wanted to stay. So, we have a court date scheduled for August 18th.

@Matthew Paul I do have it stated in the lease that she has to send me notifications via letter and according to the laws of CT she is suppose to send me a letter saying she is withholding rent, call the housing board to come look at the apartment and deem something against the housing code and then put the rent into an escrow account. She didn't do any of those things.

I mean, even though she didn't send me a paper, she did notify me. Will the judge even care about it being mailed?

Does withholding rent work when the tenant doesn't set up an escrow?

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