A Tenant's Right To Withhold Rent
Under New Hampshire law, a tenant is permitted to withhold rent in certain circumstances and still be protected from eviction for nonpayment. It is never unlawful to withhold rent, and tenants often withhold for various reasons. This discussion concerns withholding rent in order to address serious defects in the apartment threatening health and safety, and how NH law can work to protect tenants. This is a somewhat complicated procedure and must be done very carefully.
We urge you to discuss this with a lawyer before you make a final decision to withhold your rent. At the very least, you should carefully read this handout. If you have followed all of the conditions set forth below, you can withhold your rent and still be protected from eviction. Please pay particular attention to conditions #1, 2, & 3, as these are the issues that generally give tenants the most problems:
1. The reasons for which you are withholding your rent must be serious defects or substantial code violations which threaten the healthy or safety of the tenants who reside in the apartment;
2. You give your landlord written notice of the defects at a time when your rent is current. While written notice is not absolutely required, it is very important because it gives you proof of the fact that you notified the landlord. This notice has to simply inform the landlord of the problems and the need for repairs; you do not have to mention rent withholding. Written notice from a local housing code or health department to the landlord should be sufficient;
3. The landlord fails to correct the defects within 14 days of receiving the written notice of the defects. This means that if you plan to withhold rent, you should be sure to notify your landlord of any problems by the middle of the month before your rent is due (assuming that you pay rent on the 1st). In an emergency, you may give notice which is appropriate under the circumstances, rather than wait 14 days. For example, if you have no heat or no water, 24 hours may be sufficient. The more times you have requested repairs and the longer your landlord has delayed, the more sympathetic a judge will be;
4. You, your family, or your guests did not cause the problem;
5. Extreme weather conditions did not prevent the landlord from making the repairs. This does not mean that you cannot rent withhold if the unsafe condition was caused by extreme weather conditions. It means only that if the landlord cannot fix the problem because of extreme weather, your rent withholding may be found to be unjustified;
6. You did not prevent repairs by refusing to let the landlord into the unit;
It is crucial to set aside all of the rent that is due and have it available to pay into court when the judge tells you to do so. While the statute does not require this, your rent withholding case is unlikely to succeed if you do not have the money available at the time of trial. If you do not, the judge is less likely to believe that you legitimately withheld your rent. If you do convince the judge, you will need this money to preserve your housing while repairs are made.
If your landlord tries to evict you for nonpayment of rent, you should tell the court the reasons you withheld your rent. If the judge finds that you had good reason to do so, postpone the hearing for 30 days to permit the landlord more time to make the repairs. If you reach this point, you have won the eviction – whatever happens next, you should not be ordered to leave. If the court believes that you were not justified in withholding or that you did not meet the requirements of the statute, you will be evicted.
While waiting for the next hearing, you will be ordered to pay into court all the rent that you have withheld and any rent becoming due thereafter.
At the second hearing:
If the repairs have been made, the court will decide how much of the rent the landlord should get and how much to award you as damages, and then dismiss the eviction case against you; or
If the repairs have not been made, the court should award you all of the rent, and then dismiss the eviction case against you.
To read New Hampshire’s rent withholding statute, please see RSA 540:13-d.
Call LARC at 1-800-639-5290 or 603-224-3333
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This pamphlet is based on the law in effect at the time of publication. It is issued as a public service for general information only, and is not a substitute for legal advice about the facts of your particular situation.