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Withholding rent

This content applies to England & Wales

Can tenants withhold rent to pay for the cost of repairs, and the procedure for doing so.

In general, tenants do not have the right to withhold rent if the landlord does not carry out repairs. Doing so could jeopardise the tenant's right to remain in the accommodation. In certain circumstances, however, a tenant can pay for repairs and deduct the cost from future rent. Using rent in this way may be quicker than court action and avoids legal costs for both the tenant and the landlord.

Procedure that must be followed

If a landlord has clearly breached a repairing obligation, tenants have the right under common law to do the repair themselves and deduct the costs and expenses of doing so from future rent payments. However, the correct procedure must be followed and adequate notice and estimates of costs must be submitted to the landlord in advance of the work being done so that s/he has the opportunity to do the works her/himself.

If the correct procedure is followed, the tenant will have a complete defence to any possession action taken for rent arrears resulting from the deduction of repair costs from rent.[1] The steps to follow are:

  1. the tenant should inform the landlord of the repairs needed (preferably in writing) and allow a reasonable time for the necessary works to be completed
  2. if the landlord fails to act, the tenant should inform the landlord (preferably in writing) that s/he will do the repair her/himself unless the landlord complies with her/his obligations
  3. the tenant should then allow a further reasonable period for the landlord to do the work
  4. the tenant should then obtain three estimates and send them to the landlord with an invitation to comment within a reasonable time and a final chance to carry out the work 
  5. the contractor who supplied the lowest estimate should be employed to carry out the work
  6. the tenant must then send the invoice to the landlord and request reimbursement for the cost
  7. if the landlord does not pay, then the tenant may deduct the cost of the repair work from future rent.

Limitations of this remedy

Taking action in this way has certain limitations:

  • it can only be used by tenants who can afford to pay the contractor themselves; as a result, it can only be used to tackle minor disrepair
  • it can take a long time to follow the correct procedure and do the repairs needed
  • it can only be used for the cost of the disrepair - not for 'damages' (eg for stress or injury to health) that may have arisen due to the disrepair
  • the tenant will be liable for any negligent workmanship or damage to the property resulting from the work done
  • council tenants who receive housing benefit cannot use this remedy
  • housing association and private tenants who are claiming housing benefit may have their  payments suspended until the issue is resolved.

If the tenancy agreement states that tenant cannot use rent to pay for repairs, this is likely to be an unfair term, which will not be binding.[2]

[1] Lee-Parker v Izzet [1971] 1 WLR 1688.

[2] paras 3.26-3.27 Guidance on Unfair Terms in Tenancy Agreements, OFT, September 2005.

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