Rent arrears due to withholding rent

Where the landlord is in breach of his/her repairing obligations, the tenant may have the right to withhold rent until the repairs are carried out. However, caution should be exercised.

This content applies to Scotland

Withholding rent 

If a tenant decides to withhold rent it is crucial that they are able to demonstrate that the rent is being held separately and not being spent. Where tenants are claiming housing benefit or housing allowance they may have difficulty withholding rent if it is paid directly to the landlord. See the section Payment of housing benefit for more information.

Once repairs are done the tenant is under a duty to pay the withheld rent, after deduction of any claims that s/he may have in respect of abatement for rent or for damages. Extreme caution should be exercised in suggesting that clients withhold rent. The right to withhold may be expressly excluded in the lease. However in that scenario the landlord could try to evict the tenant under ground 1 and would have to show it is reasonable to do so.

Abatement of rent

At common law where the tenant for any reason has not had full use, or is not having full use of the subject (for example, flood, fire or disrepair) the tenant is entitled to an abatement of rent equivalent to the loss of use that s/he has suffered as a result of the occurrence. The right of abatement of rent exists regardless of whether the landlord was at fault.

Last updated: 6 January 2020