Can I withhold rent if my landlord won't fix things?

Answered by ProctorLaw

This is general legal information, not legal advice. No attorney-client relationship is created. Talk with a licensed attorney about your situation.

Short answer: your friend is half right. Ohio does let a tenant stop paying the landlord over unmade repairs, but only by paying the rent into court instead, through a procedure called rent escrow or rent deposit (R.C. 5321.07). If you simply stop paying, you are a tenant in default, the landlord can serve a three-day notice, and "the furnace was broken" is not a defense to a nonpayment eviction. Ohio also does not allow you to pay for the repair yourself and deduct it from rent without a court order. So there is a right way, and it is not hard.

The landlord's duty. Ohio law requires every landlord to keep the premises fit and habitable, keep the heating system in good and safe working order, and supply reasonable heat at all times unless you control the heat source and pay the utility directly (R.C. 5321.04(A)). Cleveland's housing code adds a number: a landlord who furnishes heat must keep habitable rooms at 70 degrees whenever it is below 50 outside (Cleveland Codified Ordinances 371.11). Weeks without a furnace in the cold months violates both.

The right way, step by step.

1. Written notice. Send the landlord a letter describing the problem ("the furnace has not worked since [date]") and asking for repair. It must go to the address where you normally pay rent; send it by certified mail and keep a copy, and also send it the way you usually communicate. Cleveland Housing Court has a "Notice to Correct Conditions" form you can use.

2. Call the city. Report a "no heat" complaint to Cleveland 311 (call 311 or 216-664-2000) or the Department of Building & Housing, (216) 664-2282. An inspector's violation notice is the best evidence you can have, and the landlord cannot legally retaliate against you for making the complaint (R.C. 5321.02).

3. Wait a reasonable time, up to 30 days. The statute gives the landlord a reasonable time considering the severity, or 30 days, whichever is sooner. No heat in winter is an emergency, so a shorter period can be reasonable; document the dates and temperatures.

4. Be current on rent. You can only start escrow if you are paid up. If you are already behind, catch up first.

5. Deposit the rent with the court. When the next rent is due, take it to the Cleveland Municipal Court Clerk's civil division at the Justice Center, 1200 Ontario St., instead of to the landlord. The Housing Court Specialists on site ((216) 664-4295) will walk you through the Rent Deposit forms. You keep depositing every month until the problem is fixed. The clerk notifies the landlord, who has to prove to the Housing Court that the repair is done (or that you did not follow the steps) to get the money (R.C. 5321.08, 5321.09).

6. Ask the court for more. Along with the deposit you can ask the Housing Court to order the repair, reduce your rent for the period you had no heat, or let you use the deposited rent to make the repair yourself (R.C. 5321.07(B)(2)). You may also terminate the lease and move out without penalty.

One exception to know. A landlord who owns three or fewer rental units can opt out of the escrow procedure, but only by saying so in your written lease or in a written notice at move-in (R.C. 5321.07(C)). Even then, the duty to provide heat, the city code, and your right to sue for damages all remain.

Damages. Separate from escrow, you can recover the difference between the rent you paid and what the apartment was actually worth without heat, as a lawsuit or as a counterclaim if the landlord ever sues you (R.C. 5321.12). Keep a log of dates, indoor temperatures, space-heater and electric costs, and any days you had to stay elsewhere.

If you are already in an eviction, Cleveland provides free counsel in Housing Court to tenants with a child in the home and income at or below the poverty line, and the Legal Aid Society of Cleveland (888-817-3777) handles rent-escrow questions. This is general information, not legal advice; the sequence above matters, so get help with it before you withhold anything.

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