Prior to discussing any details, it is important to note that extreme caution should be taken when a tenant attempts to withhold rent. Before doing so, it is recommended that an attorney be consulted.

In order to protect those tenants residing in substandard housing units, New Hampshire has enacted RSA 540:13-d. Pursuant to this statute, a tenant may withhold rent if the landlord has maintained the premises in such a way that it is in “substantial violation of the standards of fitness for health and safety set forth in RSA 48-A or in local codes” and “such violation materially affects the habitability of said premises.” Several requirements must be met before rent can be withheld:

a) The tenant must prove by clear and convincing evidence that notice of the offending conditions was provided to the person to whom he customarily pays rent at a time when the tenant’s rent is paid up to date;

b) The landlord failed to correct the violation within 14 days of notice or as promptly as the conditions require;

c) The violations were not caused by the tenant, or somebody authorized to be on the premises by the tenant.; and

d) Necessary repairs have not been prevented by the tenant or extreme weather conditions.

Finally, if a tenant raises this defense when a landlord files an eviction action, the court may order the action continued for a time period not to exceed a month to enable the landlord to remedy the violation. During this time, the tenant will be required to pay any rent withheld and any rent becoming due thereafter to the court.

After the continuance, if the court finds the condition corrected, it will dismiss the eviction and determine which party is entitled to the rent deposited with the court. If the court finds the condition has not been corrected, it will enter judgment for the tenant and return all deposited rent money to the tenant.

Author: Attorney George H. Thompson, Jr.