Landlords generally owe tenants a duty to provide and maintain property in a specified condition. This specified condition is often consistent with keeping the property in a “habitable condition”, meaning the property is free of problems that would otherwise materially affect the physical health or safety of an ordinary tenant. When a landlord fails to maintain the property in a habitable condition, the tenant may take steps to repair or remedy the situation. This article provides an overview of tenant’s remedy rights established by Texas law.
Before obtaining a repair, a tenant must first provide the landlord adequate notice of the problem. While a phone call may be a fast method of communication, notice should also be made in writing, such as a letter, email, or text message. If the written notice is submitted by certified mail, return receipt requested, then the tenant is not required to submit a subsequent written notice in order to pursue rights and remedies under state law. (further discussed later). The written notice should also include the date of the notice, and a copy of the notice should be stored as proof, to help resolve later disputes. Furthermore, when submitting written notice, it is important to be thorough and provide specific details of the problem, as well an incorporate any prior discussions of the problem or agreements made.
After providing notice to the landlord, tenants should keep paying rent. Under Texas law, the landlord is not obligated to repair the problem, unless the tenant is current on rental payments. Tenants are required to perform their obligation to make timely rent payments, otherwise the landlord will not be required to make the requested repair.
Next, the landlord has a “reasonable amount of time” to respond to the written notice and repair the problem. However, Texas law does not provide a clear test or equation when determining the duration of a “reasonable amount of time.” Circumstances will often dictate the severity of the problem, and a degree of reasonableness to have the problem resolved or repaired. Factors to consider when determining a reasonable amount of time include: availability of materials, impact on health and safety, labor used to repair, and utilities. Though the law generally presumes seven-days as a reasonable duration. If the landlord fails to repair the problem within a reasonable amount of time, tenants may choose to call the designated city or county inspector (housing, health, or fire), and inform them of the problem. Notifying the appropriate inspector may provide the motivation needed to have the problem resolved, as violation of city or county code could result in the landlord paying fines. Tenants whom choose to notify inspectors should do so in writing, and in a manner consistent with providing written notice to the landlord, should a subsequent dispute arise.
If the landlord fails to repair the condition of the property, following a reasonable time after receiving written notice, the tenant must send a second written notice as a request to repair or remedy the problem. As stated above, if the initial written notice was submitted by certified mail, return receipt requested, the second written notice is not needed. In the second written notice, the tenant should request and explanation for the delay in repair. If the landlord does not respond to the written request, it will serve in the tenants’ favor, should the dispute go to court. This written notice should be submitted via certified mail, and a copy should be kept with the tenant’s personal files. The second written notice should also state that it is the second written notice to the landlord, that an explanation of the delay is requested, and what the tenant plans to do if the landlord fails to repair the problem. Generally, tenants have three (3) options when responding to landlords who fail to repair the problem: (1) terminate the lease; (2) repair the problem themselves, and deduct the expense from the cost to rent; and (3) file a lawsuit against the landlord.
Terminating the Lease
Tenants who choose to terminate the lease, must inform the landlord of their decision to terminate the lease, should the problem not be repaired. Tenants may only terminate the lease if (i) the problem materially affects the physical health or safety of an ordinary tenant; (ii) the tenant has provided the landlord with the requisite notices; and (iii) the tenant is current in rental payments. Once the lease is terminated, the tenant must move out, and may stop paying rent on the day of the termination or the day the tenant moved out, whichever is later. Tenants may also sue the landlord for one month’s rent plus $500, and seek actual damages, attorney’s fees, and court costs. After the tenant has moved out of the property, the landlord must return the security deposit, unless there is a reason to deduct an amount from the deposit. Tenants may file a suit against a landlord who does not refund the unearned portion of rent or withholds the security deposit.
Using Repair and Deduct
A tenant may often hire a contractor to repair a condition that affects the health and safety of the property, after giving the landlord the required notices and waiting a reasonable time to repair. The tenant is permitted to deduct the amounts paid to the contractor from the future month’s rental payment. However, repair and deduct can only be used in very specific scenarios. (see Texas Property Code §92.0561(d)(3) for the complete list of scenarios). Following proper notice to the landlord, and satisfying a condition in Texas Property Code, the tenant must wait an additional seven-days before hiring a contractor for repairs. The amount used to repair any one problem or condition with the property is limited to one month’s rent or $500, whichever is greater.
Filing a Lawsuit
Tenants filing a lawsuit have many options to consider when developing their strategy, most importantly which court they choose to file. First, Justice of the Peace Court (JOPC) is more affordable and faster than filing in County Court or District Court and allows tenants to represent themselves at trial. However, the amount of recovery in JOPC is limited to a maximum of $10,000, JOPC cannot order the landlord to repair the problem, and either party can appeal the case to either County Court or District Court. In contrast, filing in either County Court or District Court will likely require the guidance of a lawyer, which will result in higher expenses, and the court process may not deliver timely results. However, these courts do not have the $10,000 limitation, which allows tenants to recover a greater amount in damages.
Texas remains one of the most desirable states to live in the United States. As settlers establish residency in the Lone Star State, knowing their rights as property owners and renters will help to their new home.
The information contained in this post is for general information and educational purposes only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, and the inherent hazards of electronic communication, there may be delays, omissions or inaccuracies in information contained in this publication. Accordingly, the information on this post is provided with the understanding that the author and publishers are not herein engaged in rendering legal, accounting, tax, or other professional advice and services. As such, it should not be used as a substitute for consultation with professional accounting, tax, legal or other competent advisers. Before making any decision or taking any action, you should consult a professional.