Can Tenants Deduct Repair Costs from Rent?

Issue: Is the landlord liable for plumbing leaks in their property, or are they the tenant’s responsibility?

Here’s a question from Vuyisile:

I’ve been living in my complex for about a year and a half. A few days ago, I noticed a leak under the kitchen sink and reported it to my landlord. He’s refusing to deal with it. He says everything was fine when his plumber last came to fix a toilet leak about seven months ago. Because of that, he says any plumbing issues now are my responsibility. He also said that if I don’t fix it, any damage caused by the leak will be my responsibility.

I’ve always understood that plumbing issues like this fall on the landlord, so this came as a surprise. This is the first time I’ve had a landlord take this approach. If I fix it myself, can I deduct the cost from my rent? If not, what else can I do? I’m really frustrated and would appreciate your advice.

From The Legal Desk

Thanks for your question, Vuyisile.

One of the perks, if one can call it that, of living in rented accommodation is knowing that most maintenance and repairs are the landlord’s responsibility. It becomes frustrating when a landlord shirks that responsibility and effectively adds unforeseen costs to your lease agreement. Is that fair, legal, or acceptable? And can you do anything about it? Let’s take a look at the legals….

Generally, a landlord cannot refuse to repair a plumbing leak unless the lease agreement explicitly shifts that specific maintenance responsibility to the tenant. Under the common law, the lessor (landlord) has a residual obligation to maintain the property in a condition reasonably fit for the purpose for which it was let during the entire currency of the lease. A lessor must keep a house “wind and water-tight” (as Pothier once put it) to ensure all rooms can be used as intended. This specifically includes the duty to effect repairs to prevent leaks.

Furthermore, for residential leases, the Rental Housing Act (RHA)¹ makes this duty more stringent. The RHA requires a landlord to provide a dwelling that is in a “habitable condition,” which includes ensuring the building is structurally sound and provides protection from threats to health. The amended RHA specifically mandates that the landlord must “maintain the existing structure of the dwelling,” which includes repairs and upkeep necessary to keep the dwelling habitable. Your landlord’s argument that the plumbing was fine seven months is legally irrelevant, as the duty to maintain is continuous throughout the lease period.

What kind of problems is the landlord not obliged to attend to and are the tenant’s responsibility?

While the landlord handles structural and major maintenance, the lessee (that’s you, the tenant) also bears certain responsibilities under the common law and the RHA.

As a tenant, you must use the property as a bonus paterfamilias (a reasonable person) would use their own property. You are generally responsible for minor upkeep, particularly repairs necessitated by your own use and enjoyment of the property. Tasks such as general garden upkeep, cleaning, and basic protection of the house (like keeping windows closed during storms) fall on you.

Importantly, the landlord is not obliged to repair damage caused by the tenant, members of their household, or their visitors. The RHA explicitly gives the landlord the right to claim compensation for such damage. Of course, as with more things, the parties are free to agree in the lease agreement that the tenant will be responsible for certain categories of repair, such as “interior maintenance”. It is thus worth checking if such a provision exists in your lease agreement.

Can you have the issue repaired then deduct the costs from the rent?

The short answer is, yes, you can. You may have the right to repair the leak yourself and deduct the costs from your rent, but you must follow a specific legal procedure to avoid being in breach of contract:

You must first give your landlord formal notice of the defect and a reasonable time to remedy it.
Only if the landlord fails or refuses to make the repairs after receiving notice can you proceed to do them yourself.
This right is strictly confined to “repairs properly so called” i.e., repairing flaws that unreasonably interfere with the use of the property. You cannot perform structural alterations or improvements at the landlord’s expense.

If these conditions are met, you can deduct the cost from your rent (the term for this is “set-off”). However, the debt must be “liquid,” meaning the money value must be easily and promptly ascertainable (e.g., supported by a specific invoice/receipt for a standard repair). If you are unsure whether the work constitutes a necessary repair, I suggest seeking the intervention of the Community Schemes Ombud Service (CSOS) or Rental Housing Tribunal before undertaking the repairs.

What other options are available to tenants in such a situation?

There are a few other remedies available to you. For a start, you can apply for a court order (or a ruling from the Rental Housing Tribunal) to compel the landlord to make the repairs. Most courts are increasingly willing to grant these orders, especially when they impact constitutional rights like dignity and health.

If the leak diminishes your use and enjoyment of the kitchen, you are entitled to a reduction in rent proportionate to that deprivation. If the leak causes “substantial interference” with your use of the premises (in other words, making it virtually useless for its purpose), you may elect to cancel the lease. However, you must first provide notice of the breach and a reasonable time to repair.

You can also claim compensation for any consequential loss caused by the landlord’s failure to maintain the property, such as damage to your personal belongings caused by the leaking water. You can also lodge a complaint regarding an “unfair practice” with your provincial Rental Housing Tribunal. The Tribunal has the power to issue rulings compelling a landlord to effect necessary maintenance and to resolve disputes in an equitable manner, often at a lower cost than a court.

Overall, speak to your landlord, or ask someone to speak to him on your behalf if you are uneasy about it. It is usually best to attempt to resolve any issues with your landlord in as amicable a fashion as possible. However, if he is unwilling to take that route, then I hope the above will be of assistance to you. All the best.