Can My Tenant Withhold Rent?

This question trips up landlords, attorneys and even judges from time to time.

The short answer is a resounding NO.

North Carolina statute N.C.G.S. 42-44(c) provides that "The tenant may not unilaterally withhold rent prior to a judicial determination of a right to do so." This begs the question, "when can a judge determine a tenant has a right not to pay rent?"

For the answer we must back up a little to N.C.G.S. 42-41, which states "The tenant's obligation to pay rent under the rental agreement or assignment and to comply with G.S. 42‑43 and the landlord's obligation to comply with N.C.G.S. 42‑42(a) shall be mutually dependent." N.C.G.S. 42-42(a) sets out a landlord's responsibilities with respect to maintaining the property, and N.C.G.S 42-43 sets out the tenant's responsibilities regarding maintenance of the property. You can click on the statute if you would like to view it, but a more detailed discussion of these responsibilities will be in another post.

Now this is starting to get confusing. N.C.G.S. 42-41, stating that a tenant's obligation to pay rent is dependent on a landlord maintaining the property, seems to contradict N.C.G.S. 42-44, which says a tenant may not unilaterally withhold rent. The two statutes are reconciled by allowing the judge to determine the actual value of the property above that stated the tenant cannot withhold rent. The two statutes are reconciled by allowing a judge to determine the value of a property in disrepair, subtracting that from the actual rent, and awarding the tenant an abatement in the amount of the difference.

The way this works is: $750.00 (amount of rent) - $500.00 (rental value of property in disrepair) = $250.00 (rent abatement). The landlord will then have to return to the tenant the abatement amount. There is also the possibility that a tenant can in limited circumstances prevail on an Unfair and Deceptive Trade practices claim relating to failure to repair, which can get very expensive. I will discuss this process in greater detail in a subsequent post, because this is a bad news topic, and this is a good news post.

The good news being that a tenant does is not allowed to withhold rent.

One more quick point: This is particularly good with respect to repair issues because a tenant cannot fail to pay rent and then try to blame some sort of minor property defect as the reason for this failure, justifying the tenants non-payment.

If you have any questions relating to North Carolina Landlord Tenant Law that you would like addressed in this blog send me an e-mail at norm@starklawgroup.com