When the tenant feels the landlord has not properly attended to a repair issue, the tenant may feel justified in withholding payment of rent. This feeling is perfectly understandable, and the tenant may feel this is the only leverage he has over the landlord. But, under Georgia law, the landlord’s obligation to keep the premises in good repair and the tenant’s obligation to pay rent are independent of one another.
All is not lost for the tenant who has an unresponsive landlord, however. Georgia law does afford tenants a “repair and deduct” remedy, but the tenant must be extremely careful to be able to take advantage of this remedy. I recommend the following process for a tenant wishing to take advantage of “repair and deduct”:
- The tenant should notify the landlord in writing of the precise issue to be repaired. If possible, include pictures of the defective condition.
- After waiting a reasonable amount of time to allow the landlord to complete the repair (which will vary depending on the issue, generally between a few days and 2-3 weeks), the tenant should provide a second written notice which expressly includes two additional pieces of information: (a) a specific deadline by which the repair is expected to be completed; and (b) an announcement of the tenant’s intention to have the repair done himself and deduct the cost thereof from future rental payments.
- After the expiration of that deadline, the tenant should commission a minimum of two (2) written estimates by qualified contractors to have the repair completed. Keep in mind the tenant is only allowed to repair, not to improve or upgrade (unless the landlord has given permission). While the finished product does not have to be precisely identical to the original, the materials, workmanship, and quality should be as similar as possible.
- The tenant should forward the estimates to the landlord, with a written notice that if the repair is not completed by a new deadline (which must again be reasonable but will probably be very short, i.e., 24-48 hours), then the tenant will complete the repairs himself and deduct the cost from future rentals.
- After the new deadline expires, the tenant can then proceed with the repair. If possible, take pictures during the repair process, and take pictures of the finished product. The tenant should be sure to obtain written proof of payment from the contractor(s) who performed the repair. If there are separate costs for materials, etc., the tenant should save those receipts, as well.
- Once the repair is completed, copies of the pictures taken during and after the repair and of all receipts should be sent to the landlord, along with a written notice detailing the total amount spent by the tenant and the tenant’s proposal for deducting the same from future rentals.
- The next time rent would ordinarily be due, the tenant should send a written notice which again details the amount being withheld, the amount of rent being paid (if any) following the offset, and the remaining amount of the tenant’s credit (if any) which will be applied to future rentals.
- If the entire repair cost could not be recouped from a single month’s rental payment, then repeat step 7 for each subsequent rental payment until the credit has been exhausted.
A few things to keep in mind with respect to the above. First, go back and count how many times I advise the tenant to send written notices. Even if the tenant has a conversation with the landlord in person or by phone, a written follow-up detailing the conversation should be sent as soon thereafter as possible. Second, on each occasion, the tenant should be sure he can prove the delivery of the writing. Dropping it off personally at the landlord’s office is all well and good, but a stack of FedEx delivery receipts or a series of printed emails is far more persuasive. And third, the tenant should be sure to keep a copy of everything he sends to the landlord. If the tenant gives his only copy of something to the landlord, who then claims not to have received it, the tenant may be stuck.
The whole point of this is to be able to successfully defeat a later claim by the landlord in court that the tenant failed to pay rent by withholding repair costs from the rent that was due. The tenant who attempts to argue payment of repair costs but who cannot demonstrate the landlord was given an opportunity to perform the repair himself will likely be stuck. On the other hand, while it is impossible to guarantee any particular result, the tenant who follows the above process should be in a very good position to prevail against a stubborn landlord.
If you have any questions or comments, feel free to contact Dunham Legal at any time.