WARNING: If you do not follow the proper procedure when withholding rent, you may be evicted.
The tenant must provide the landlord with a written notice that explains why they intend to withhold rent. The notice must provide the landlord with a “reasonable time” (usually 30 days) in which to respond. The notice must specify the acts, omissions, or code violations that are of concern. The notice should be sent to the person or place where rent is normally paid.
The best practice for proving that the tenant gave notice to the landlord is to deliver the notice by United States Post Office certified mail, return receipt requested, or FedEx or similar private service that requires a signature acknowledging receipt.
The tenant must wait a “reasonable period of time” which depends on the nature of the acts, omissions or code violations, but thirty days is usually an acceptable time to wait for the landlord’s compliance. After thirty days, the tenant can do one of the following:
A tenant can withhold rent only after having waited a full 30 days after providing notice to the landlord of their failure to fulfill their obligations (unless there is an emergency such as lack of heat in winter or lack of water). The notice must be clear and detailed enough that your landlord and the court will be able to understand exactly what is wrong. You must deposit your rent into escrow at the same time you would normally pay your rent.
For example, if your rent is due on the first of the month and you give your landlord written notice of your complaint on the 15th, then you still must pay rent to the landlord—and not the clerk—on the first day of the following month.
If the landlord does not comply even after a reasonable period has passed and the tenant has deposited rent with the court, the tenant can end the rental agreement, leave the premises and request the Court to refund the rental deposits to the tenant. It is a good idea to request a court hearing be set prior to the leaving the premises.
Depositing Rent with the Clerk of Court
The tenant must complete an Application to Deposit Rent and file it the Clerk along with the first month’s rent by check or in cash. There is no up-front fee to deposit rent, but the Clerk will withhold 1% of the rent once it is returned either to the tenant or landlord after an agreement by the parties or a court order.