Many tenants believe if the landlord fails to make repairs, rent no longer needs to be paid. It certainly depends on the situation, but if a tenant remains on the property, he/she still needs to pay rent. Rent abatement is a remedy provided by state law when the landlord fails to provide the conditions and services required by the lease or by a local housing code.
Deciding how much a tenant can legally withhold is a gray area, but some counties have certain precedents set. The City of Madison, for example, has an itemized list of violations that decide how much a tenant may withhold for each violation. Other counties just use precedent from other cases to set a bar.
The State Legislature recently changed the language of the rent abatement statute to make it a little more specific. If a tenant remains on a property that has a health or housing code violation or violates terms of the lease and the landlord has not remedied the situation, the tenant is able to abate rent only if the “condition materially affects the health or safety of the tenant or substantially affects the use and occupancy of the premises.” Rent will abate to the extent the tenant is deprived of the full use of the premises. Again, this could be a gray area and is up to the court to determine proper abatement.
It is my experience that many courts will look at such factors as how many rooms were unusable and for how long. For example, I had a case in which the main bathroom was not functional for the tenants. The house had three bathrooms, but only two were functional. Therefore, my clients, the tenants, abated 1/3 of their rent. Rent abatement does not require that the property is entirely unlivable, and, the only time rent can fully be abated is if the tenants are required to vacate the premises because of the lack of repairs.
You can get yourself in a sticky situation when it comes to rent abatement. If you have any questions on what is considered reasonable, feel free to contact us!