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Prepared as a Public
Service
by the
Texas Young Lawyers Association
and distributed by the
State Bar of Texas
1994
Funded as a Joint Project by
the
Texas Young Lawyers Association
and the
Texas Bar Foundation
Foreword
This Handbook is for residential tenants
and is published as a public service by the
Texas Young Lawyers Association. The Texas
Young Lawyers Association gratefully
acknowledges the help and contribution of
Robert W. Doggett and the Housing Crisis
Center in preparing this Handbook. It is our
sincere hope that distribution and use of this
Handbook will enable more Texas citizens to
understand their legal rights and remedies as
residential tenants and explain many of the
questions that arise in a landlord-tenant
relationship.
The reader should remember that, in many
situations, it is advisable to consult an
attorney to obtain assistance with
landlord-tenant problems. This Handbook is
intended to provide general guidance only. It
is not a substitute for the advice of a
lawyer. The Texas Young Lawyers Association
hopes, however, that by providing Texas
residents with a better understanding of their
legal rights and remedies, this Handbook will
help prevent many legal problems from ever
arising.
Daniel R. Malone, President 1993-1994 Texas
Young Lawyers Association
Tenants' Rights Handbook
Revised by Robert W. Doggett
1994 Edition
Edited by Texas Young Lawyers Association
Public Service Programs Committee
A. Darby Dickerson, Chair
1993-1994
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Table Of Contents
Introduction; Must Reading
Warning
Selecting Your New Home
The Lease and Important Provisions
Rent and Late Fees
House Rules
Landlord's right to Enter
Repair Language
Occupants and Visitors
Lease Time Period and Month-to-Month Leases
Changing Terms in the Middle or End of a Lease
Moving Into Your New Home
Tenant Rights and Remedies
Repairs and Improvements
Exceptions to the Landlord's Duty to Repair
Procedure for Obtaining Repairs
Exception for Major Damage
Retaliation for Requesting Repairs
Withholding Rent Is Almost Always a Bad Idea
Improving or Changing the Premises
Condemned or Closing Property
Locks and Security Devices
Landlord Must Rekey Between Tenancies
Procedure and Remedies for Lock Problems
Smoke Detectors
Landlord's Duty to Inspect and Repair
Procedure and remedies for Smoke Detector
Problems
Security Deposits
Landlord Must Refund or Explain Within 30 Days
Exceptions and Miscellaneous
"Hold Deposits"
Don't Use Deposit As Last Month's Rent
Finding Out Who Owns and Manages the Premises
Discrimination
Serving Court Papers on Your Landlord
Tenant Duties and Consequences
Lockout
Utility Disconnection
Landlord Intentionally Disconnects the Utility
Utility Cutoff for Landlord's Failure to Pay
Utility Company
Landlord's Right to Remove
Property
Landlord Cannot Remove Own Property
Landlord May Remove Some Tenant Property
Subleasing
Cotenancy
Eviction
Procedure and Suggestions
Appealing an Eviction Case
Termination and Moving Out
By Agreement
The Lease Ends
End of Express Lease Term
Month-to-Month Terminations
Exceptions to Failing to Renew or Terminating a
Month-to-Month
Termination for Landlord Failures or Military
Transfers
Termination for Tenant Breach
Change in the Landlord Usually Does Not
Terminate the Lease
Disagreements About Terminations
Consequences for Terminating Without Excuse
Moving Out
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Introduction
Must Reading
This Handbook is designed to assist residential
tenants in their search for answers to actual
legal problems. A residential tenant is a person
who has leased or rented a house, duplex,
apartment, or other room for use as a permanent
residence or home This Handbook does not address
laws concerning boarding houses or motels,
commercial tenancies, or mobile homeowner rights,
although some of the legal concepts contained in
this Handbook may be applicable. Most of the legal
material found in this Handbook can be located in
sections 24, 54, 91 and 92 of the Texas Property
Code. The Property Code is published by West
Publishing Company as Vernon's Texas Codes
Annotated and can be found in most public
libraries.
Many times, the law can only be enforced in
court. Yet, most disputes never reach the court
and are settled between the parties; justice can
be expensive, risky, and slow. Therefore,
courteous, professional negotiation is usually the
fastest, most efficient solution in any dispute.
The law, as interpreted in this Handbook, merely
sets forth the basic guidelines for negotiation.
Often, establishing or joining a tenant
organization is an attractive option because such
organizations encourage landlords to negotiate
fairly. Also, a tenant organization may get more
attention from the media and local elected
officials than individual tenants, and the fear of
negative publicity or pressure from these
officials can affect a landlord's actions.
WARNING: This Handbook is not
designed to make the reader an expert in
landlord-tenant law, but is merely intended as a
guide to the general rights and responsibilities
of the tenant and landlord in various situations.
If you plan to terminate your lease, withhold
rent, repair and deduct, use your deposit for
rent, sue your landlord, or take other serious
action based on what you have read in the Property
Code or this Handbook, please consult an attorney
or tenant association to ensure all the legal
requirements have been met. This Handbook does not
address every consideration that may be applicable
in a given situation. Also, interpretations of
statutes routinely change over time. The judgment
of a court will also depend on the exact
circumstances of the individual case. If you
improperly terminate the lease, withhold rent,
sue, etc., the landlord may be entitled to collect
damages and attorneys' fees from you. You also
need to be aware of practical considerations of
any lawsuit. For example, this Handbook indicates
the specific instances where you can terminate a
lease agreement and move out. Even though you may
have correctly terminated your lease, if our
landlord does not agree with hour decision, he may
take action against you (including withholding
your deposit and giving a statement to a credit
reporting agency). Although the landlord's actions
may later be deemed illegal, you may have to go to
some trouble to achieve justice. Sometimes a
landlord may try to retaliate against you by
refusing to renew your lease (or by trying to
terminate a month-to-month tenancy) or raising
your rent. The law specifically provides you a
cause of action for certain kinds of retaliation.
See "Retaliation for Requesting Repair."
To find the names of an attorney, call your
local tenant association, bar association, or
other lawyer referral service, all of which can
usually be found by looking in your telephone
directory. You can also call the Texas State Bar
Referral Service at 1-800-252-9690. If you have a
very low income, you may be eligible to receive
free legal assistance from a legal services
agency, and if you decide to file a suit you may
also be able tot file a statement describing your
financial status instead of having to pay court
costs. If you need the name and number of the
legal services agency in your area you can call
Texas Lawyers Care at 1-800-204-2222, ext. 2155.
You may also decide to represent yourself in
Justice of the Peace Court. Justices of the Peace
routinely decide suits filed by parties who do not
have lawyers. It is still a good idea to get some
tips on the best way to represent yourself from an
attorney or your local tenant association.
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Selecting
Your New Home
The most important thing you can do to avoid
hassles with your house or apartment is to get
started on the right foot. Many problems can be
avoided if you do a few things before you agree to
rent, put down a deposit, or sign a lease.
Look over the outside of the building. Are the
stairs, outside walls, roof, sidewalks, and
grounds around it in good shape? Do the buildings
need to be painted? Do the apartments have enough
parking spaces? If there is a laundry room for all
of the residents, look it over. Inspect the
swimming pool. Find out what the neighbors are
like and what they say about the landlord. Ask
whether they ever had something that needed to be
repaired by the landlord. Was it fixed quickly?
Have they ever had any disputes with the landlord?
Do they have roaches? Has anyone in the area had
any problem with vandalism, burglaries, rape,
muggings, or other crimes? What is the area like
at night? Are the grounds well lit?
NEVER sign a lease or even put a deposit down
on an apartment or house until you have seen the
exact space you will be renting. Some apartment
complexes will show you a model apartment. Often,
the apartment you actually get will not be as nice
as the model. When you inspect the place you may
rent, look it over carefully. Make sure the place
does not smell bad. this could signal mildew
caused by roof or plumbing leaks. Make sure the
stove works. Check the refrigerator. Turn on the
dishwasher. Check the garbage disposal. Turn on
the water faucets and make sure the hot water
works. Flush the toilet. Test the hearing and air
conditioning units. Open all of the cabinets and
drawers in the kitchen and bathroom. Look for
signs of insects or rodents. Look carefully at the
carpet. Check around the windows. Are there any
signs of leaks or water damage? Does the house or
apartment have working smoke detectors? Test all
of the lights.
Carry a pen and paper with you. Make a list of
anything that is damaged or that needs repair.
Take a copy of y our list to the landlord, and ask
to have all the items repaired. Be sure to keep a
copy of this list yourself. If the landlord
promises to fix the items, get the promise in
writing (or better yet, refuse to sign the lease
or give a deposit until the items are repaired to
your satisfaction). Finally, it is wise to check
out the landlord before you agree to rent or put
down a deposit. If the city has a tenant
association, better business bureau, or consumer
protection agency, call and find out if other
people have complained about the landlord,
complex, or management company. Ask if the
landlord owns any other rental properties. If so,
check into those too.
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The Lease and Important
Provisions
The importance of the lease cannot be
overemphasized. Your basic rights and duties, as
well as those of your landlord, will be found in
the lease. If you violate the lease, the landlord
may have the right to ask you to move and hold you
liable for future rent payments and other damages.
Many people sign the lease without carefully
reading it. Often the lease consists of a long
form, which the landlord will say is the
"standard" form that everyone signs. Do
not sign a lease until you have read it and feel
you understand it. A lease is valid as soon as you
sign it, and you usually cannot back out if you
change your mind (see "Consequences for
Terminating Without Excuse.")
However, you can modify a lease before you sign
it. The law permits you to make almost any change
to the terms of the lease, as long as the landlord
agrees to the change. Do not be afraid to propose
changes in the lease. Make the changes in ink and
make sure that you and the landlord initial the
changes. Do NOT leave the manager's office without
a copy of the final lease agreement. If you get
into a dispute with your landlord, you will find
it difficult to rely on verbal promises that have
not been put in writing. Both you and your
landlord should sign and date all pages separate
from the lease agreement. If you have agreements
about pets, replacing the carpet, painting the
walls, or who pays the utilities, such agreements
should all be stated clearly in writing. Anything
you want fixed, replaced or repaired should be
requested in writing. If the landlord will not put
the agreement in writing, you would probably be
wise not to rent from him or her.
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Rent
and Late Fees
A landlord can charge any amount he wishes for
rent. There are no limits to increases, as long as
the lease is expired (or will soon expire) and a
property notice is given. See "Changing terms
in the Middle or End of a Lease." Generally,
rent is due on the first day of the month. Many
leases provide a "grace period" in which
rent can be paid late without penalty. Always get
receipts and keep theme as long as you live there,
especially if you pay by cash or money order. If a
landlord claims he did not receive a money order
from you (and you do not have a receipt), you can
run a "trace" on the money order to
determine who may have cashed it by contacting the
company that issued the money order. If any of the
landlord's employees cashed it you are probably
not responsible for the rent. It may take several
weeks, so be sure to start the process quickly.
Sometimes a money order company will replace money
orders that have not been cashed after a few
months.
A landlord must accept cash rental payments,
unless the written lease provides otherwise. If
you pay your rent in cash, your landlord must
provide you with a written receipt. The landlord
must also keep a record of the date and amount of
each payment. If a landlord fails to provide
receipts or keep a record book, you can file suit,
and you may be entitled to a court order that: (1)
directs the landlord to comply with the law; (2)
awards you the greater of one month's rent or $500
for each violation; and (3) awards you court costs
and reasonable attorney's fees. A landlord can
refuse to take personal checks if it is in your
lease.
A landlord can charge a reasonable late penalty
if you pay rent after the due date according to
your lease agreement. If you do not pay your rent
on the due date (or beyond the grace period), the
landlord usually has the discretion to either
terminate the lease agreement or accept the rent
and the appropriate late fee. If you offer to pay
the rent and appropriate late fee, and the
landlord refuses to accept it, you may still have
a chance in court. You should read the lease
carefully and argue that you offered to cure the
problem according the lease. A court may also
consider your rent to be paid on time if you have
established a clear and undisputed pattern of
acceptance of late payment by your landlord. You
should argue that if your landlord on longer
wished to accept late payments, he should have
given you some advance notice. See
"Termination for Tenant Breach." If a
landlord ever refuses to accept your rent, be sure
to offer the money in person and with a witness
(not just over the phone).
A late fee should not be more than $35 for
being just one day late in a typical lease where
rent is $400 per month, although there are no
specific legal limits. Landlords can also charge
additional fees for each day the rent is late.
Generally, the total amount of late fees in any
one month should not be ore than half a month's
rent. But again, a court could consider higher
fees to be acceptable or lower fees to be
unacceptable, there is no sure answer. A landlord
sometimes deducts late fees form a tenant's rent
and then claims the tenant is behind on rent
again. Then the landlord charges late fees all
over again. There are no state laws that
specifically address these activities. However, a
landlord may be in violation of the Deceptive
Trade Practices Act if the landlord charges
extremely excessive late fees. A court may also
refuse to evict a tenant if the tenant only has
refused to pay an unreasonable late fee. [Tenants
in Section 8, government-owned or -subsidized
dwellings have strictly monitored rent that varies
with their income level and have additional
protections for unfair late fees.]
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House Rules
House
rules or apartment regulations are usually a part
of the lease even thought they are not printed on
the lease form itself. Before you sign the lease,
ask for a copy of the rules. If the rules have not
been written down, ask the landlord to write then
down, and have the landlord sign and date the
document. Having written rules will prevent the
landlord from changing the rules in the middle of
your lease. In general, most house rules are
enforceable as long as they do not illegally
discriminate. The "Discrimination."
Rules may be unenforceable if they are completely
unreasonable. For example, a broad curfew on
adults have been considered unreasonable by some
lower courts. But, if you feel a landlord's rules
are unreasonable, it may be safer to follow them
temporarily and move rather than attempt to
challenge them, unless you have an attorney or
tenant organization to back you up. See
"Introduction" (p.1). Note that a
landlord can fail to renew a lease or may
terminate a month-to-month lease by giving a
30-day notice for most ANY reason and a court will
probably uphold that decision. There are some
exceptions. See "Termination and Moving
Out" and "Exceptions to Failing to Renew
or Terminating a Month-to-Month." [Tenants in
Section 8, government-owned or -subsidized housing
have more protection against unreasonable
evictions and rules. These tenants should contact
their local housing authority or HUD office to
complain of any unfair rules.]
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Landlord's
Right to Enter
Study the lease carefully to
determine the circumstances under which the
landlord may enter your home. Unless the lease
agreement says that the landlord can enter your
apartment or house, he has NO right to do so,
except perhaps in emergencies and for routine
inspections or repairs (as long as you are given
advance notice). In every residential lease (oral
or written) a tenant has an implied right to
peaceable, quiet enjoyment of the premises. A
tenant also has a right of privacy in his own
home. A landlord should not violate either of
these rights by entering without the tenant's
permission or before giving advance notice,
regardless of what the lease says. You may want
the right to have your own keyed lock on the door
of the apartment or house. If you want your own
keyed lock, be sure that you provide for this in
your lease or get written permission from your
landlord. However, you have the right, no matter
what the lease says, to have a keyless deadbolt
placed on any door (at your expense) that can only
be unlocked from the inside. This will at least
prevent improper entries while you are home. The
landlord has to pay for the installation if the
dwelling was built after September 1993, and on
all dwellings after January 1995. See "Locks
and Security Devices." Other tactics a tenant
should consider are: joining or establishing a
tenant organization; encouraging management not
allow all tenants to have their own keyed lock (or
change who has access to the keys; sending
management a letter warning them of your intention
to file suit against them for any property stolen
if there has been no evidence of forced entry; or
file suit for breach of the implied covenant and
right to privacy described above, but see
"Warning."
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Repair Language
You are under no duty to repair or
remedy most conditions that affect your health and
safety unless you cause the damage through
abnormal use. Make sure that the lease does not
say that you give up your rights requiring the
landlord to make these repairs. Although such
clauses are often considered void, it is better to
modify the lease than rely on the courts to
resolve a dispute. See "Exceptions to the
Landlord's Duty to Repair." However, Texas
law does NOT require a landlord to repair or
remedy a condition that does not affect your
health or safety (such as a defective dishwasher).
Therefore, you should read the lease to see if the
landlord promises to repair such problems. If he
does not, you should ask him to change the lease
to include repairing these problems. See
"Repairs and Improvement."
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Occupants and Visitors
The landlord can limit the number
of occupants who live in the house or apartment.
The maximum number should depend on the number of
bedrooms and the age of the occupants. Texas law
generally limits occupancy to three adults
(persons over 18) for each bedroom of the
dwelling. The landlord can set lower standards, as
long as he does not illegally discriminate. For
example, if a couple living in a one bedroom
apartment have a baby in the middle of their
lease, the landlord probably cannot require the
couple to move to a two-bedroom apartment because
this may unfairly penalize them merely because
they had a child. See "Discrimination."
A landlord generally cannot limit visitors as long
they do not disturb other residents or violate
some other provisions of the lease. However, a
tenant should be careful not to have the same
visitor spend the night too many times in a row
without the landlord's permission, otherwise, the
landlord may consider the visitor as an
unauthorized occupant. Certainly, a visitor should
not get mail or other deliveries at the premises,
or this will surely arouse suspicion. Too many
visitors (even as few as 3 an hour) might be
incorrectly perceived as illegal drug activity.
Although the landlord has the burden to prove that
a tenant has violated the lease in an eviction
case, a tenant may be wise to avoid these disputes
from arising in the first place. Therefore, a
tenant should consider explaining the situation to
a landlord to remove suspicion rather than
becoming offended by a landlord's questions and
not cooperating. See also "House Rules."
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Lease Time Period and
Month-to-Month Leases
Normally, a written lease will last for a fixed
period of time, typically six months or one year.
This will protect you from rent increases during
that time. The landlord has the advantage of being
assured that he will receive rent for that period.
One disadvantage is that you are obligated for the
rent for the entire lease period whether you live
there or not, unless the landlord substantially
violates the lease (as described in this Handbook)
or agrees to let you out of the lease. See
"Termination and Moving Out."
If you never had a written lease agreement, or
if your written lease has expired, you are
probably a month-to-month tenant. A month-to-month
lease continues from one month to the next, as its
name implies, until either you or your landlord
gives a one-month advance notice of termination.
(If you pay rent weekly, then you are week-to-week
tenant and only one week's notice is required.) No
matter who terminates the lease, you should always
keep a copy of the notice of termination as proof.
See "Termination and Moving Out."
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Changing Terms in the
Middle or End of a Lease
During the lease, one party cannot change any
terms of the lease agreement without the other
party's consent. If an agreement is reached, it
should be made in writing, dated, and signed by
both parties. Unless an agreement is reached, the
parties must abide by every term in the lease
agreement (including any house rules). However,
one month prior to the end of the lease, either
party can propose any changes to the lease
agreement. For month-to-month leases, either party
can give a 30-day advance notice of any change at
any time. Unless the other party clearly
terminates (or fails to renew the lease), then
that party might be presumed to have accepted the
new terms offered by the other party. For example,
if the landlord indicates to the tenant 30 days
prior to the end of the lease that the rent will
be increased the month after the end of the lease,
the tenant may be responsible for the increased
rent whether or not the signs anything or orally
agrees to the new amount. A court may find that
the tenant accepted the landlord's offer by her
conduct alone. However, a tenant should not assume
anything, as a court will decide each situation
differently. A tenant should always get agreements
in writing and signed by the owner or manager.
For example, if the landlord sends a notice to
the tenant 30 days before the end of the lease
that the rent will be increased by $50, the tenant
will have to pay the increased rent the first
month of the new lease (a written notice may not
be required). The same is true if the tenant is on
a month-to-month lease and the landlord sends a
notice on October 31 that the rent will be
increased by $50 for December. If the tenant does
not want to pay the increased rents he should try
to negotiate with the landlord, indicating he will
not renew the lease unless the rent is lower. If
the landlord refuses, then the tenant must
indicate (preferably in writing) that he will not
renew the lease, and give the landlord 30 days
advance notice of termination. Otherwise, the
tenant will be responsible for the higher rent. If
the tenant does not pay, then the tenant will be
behind on rent. In this case, a landlord will have
rights he can use against the tenant. See
"Tenant Duties and Consequences."
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Moving Into Your New Home
When you move into your new home
make sure that all the repairs your landlord
promised have been completed. If some of the
repairs have not been made, you should contact
your landlord immediately. If the landlord fails
to make the repairs he promised before you signed
the lease, he may be liable for violating the
Texas Deceptive Trade Practices Act. Contact a
lawyer or tenant association for more details. You
should also make a written list noting the
condition of the apartment on the day you move in.
This list will help you avoid disputes when you
move out, and may also be crucial in getting back
your security deposit. Make a note of every spot
on the carpet, and every damaged item in the
place. Give a copy of the list to the landlord,
and keep a copy for yourself. Your landlord has a
duty to test all smoke detectors to verify that
they are in working order when you move in. See
"Smoke Detectors." The landlord also has
the duty to rekey the locks between tenants. See
"Locks and Security Devices."
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Tenant Rights and Remedies
This section of the Handbook
discusses tenant rights and remedies provided by
Texas law. Unless otherwise indicated, a lease
cannot remove or diminish any right or remedy
described below. However, your lease may provide
additional protections and remedies. So, be sure
to read your lease first to see if your problem is
addressed.
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Repairs and Improvements
Texas law requires landlords to make a diligent
effort to repair anything that "materially
affects the physical health or safety of an
ordinary tenant." Examples of things that
materially affect the health and safety of an
ordinary tenant are sewage backups, roaches, rats,
no hot water, faulting wiring, roof leaks, and
sometimes lack of heat or air conditioning. If the
problem violates a provision of your city's
building, health or fire code, then it is more
likely to be considered a health, or safety risk.
Problems such as broken dishwashers, walls that
need painting, unsatisfactory draperies, or grass
that needs cutting are generally not covered by
state law. However, ,your lease agreement may
require the landlord to fix these problems as
well. Be sure to read your lease to find out. If
you are uncertain how to classify the problem,
consult a lawyer, health or building inspector, or
tenant association.
[It is possible that a landlord's failure to
repair other problems that do not affect health or
safety (such as a broken dishwasher) may be
addressed as a breach of the lease, even if the
lease fails to mention repairs. A court may find
that a landlord is still responsible if the
landlord clearly implied he would fix anything
that broke in the apartment. Texas law does not
provide an easy-to-use remedy, so careful and
courteous negotiation is the best practical
solution. The remaining sections of
"Repairs" will only discuss the
requirements and remedies provided by state law as
described above. Although some of the general
advice may be applicable in these other
situations, a tenant should not assume that ANY of
the remedies discussed below will be available.]
[Tenants in Section 8, government-owned or
-subsidized housing have additional rights
concerning repairs. A local housing authority
administers many of these programs and can inspect
and "abate" (stop) paying their portion
of the rent on the tenant's dwelling until the
repairs are completed. If the landlord files for
eviction, the tenant may have defenses. The
landlord may not be able to evict based on
nonpayment of the housing authorities' rent as
long as the damage was not caused by the tenant's
abnormal or reckless use of the premises. The
tenant should call their housing authority,
attorney, or tenant association for more
information.]
Exceptions to the Landlord's Duty to Repair
Texas law does not require a landlord to repair
a condition caused by the tenant, or a guest,
family member, or lawful occupant o the tenant
(unless the condition was caused by normal use of
the premises). The law also specifically provides
that the landlord need not furnish security guards
for an apartment complex, even if the complex is
unsafe, although better lighting, locks, fencing,
and other security measures could be required in
some situations. The law also exempts landlords
who only have one rental unit. Texas law allows
these smaller landlords to change their duty to
repair entirely if the unit was free of health and
safety risks when the tenant moved in (and the
landlord was unaware that there would be problems
during the lease). If this landlord wants you to
repair items that would normally be his
responsibility, then he must put a specific
provision in your lease to this effect and it must
be underlined and in bold print.
Any landlord may require the tenant to pay for
broken windows, screens, and doors (if the
provision is specific and underlined or bolded in
a written lease) regardless of who broke them,
assuming the window or door did not break from
normal use and the landlord did not cause the
damage. The landlord also may require the tenant
to repair damage caused by leaving windows and
doors left open, and from sewage backups if a toy
or other improper item was found in the line that
exclusively went to the tenant's unit and caused
the backup (if the provision is specific and
underlined or bolded in a written lease).
Otherwise, the landlord must repair these items at
his expense within required time limits and
guidelines.
Other than these exceptions, a landlord must
provide you with a home that is free from health
and safety risks, regardless of what is in the
lease. If a landlord intentionally tries to change
this duty in your lease (other than the exceptions
stated above), you may have a claim against him
for actual damages, one month's rent plus $2,000
and reasonable attorney's fees. The law presumes
that the landlord acted without knowledge, so give
your landlord a written notice (and keep a copy)
if he is violating the law and ask him to change
the lease. If he refuses, you may have a stronger
claim against him.
Procedure for Obtaining Repairs
Tenants with problems requiring landlord
repairs must take the following steps:
a) Always give notice
You must give notice of the problem to the
person to whom you pay rent. Phoning is usually
the fastest way, but you should also give the
notice in writing and keep a copy for yourself as
proof. Be sure to date the notice.
Many leases require that all requests for
repair be in writing. If you mail your rent
payments, you can mail the notice to the same
address. Sending the notice by certified mail
provides the best proof that it has been received;
however, this is not required.
b) Pay your rent
The landlord is not obligated to make repairs
unless you are current on y our rent. You must
perform your obligation to pay rent or you cannot
force the landlord to perform his obligation to
repair. Your rent must be current at the time you
have the first notice, otherwise that notice may
not have any legal effect.
c) Wait a reasonable time
If all of the above conditions are met, then
the landlord has a "reasonable time" to
fix the problem after receiving your initial
notice. What length of time is reasonable will
depend on the circumstances. The nature of the
problem and the reasonable availability of
material, labor, and utilities are all factors
that will be taken into consideration in
determining how much time is reasonable. During
this time, the landlord must make a diligent
effort to repair the problem. For broken water
pipes or sewage blockages, the reasonable time is
short (generally one or two days). For small roof
leaks, the time is longer.
d) Call an inspector
After the landlord has had a reasonable time to
fix the problem and has not done so, you should
call the appropriate city or county inspector
(housing, health, or fire). This may put
additional pressure on the landlord if the
condition violates local ordinances. The inspector
may also help you decide if the problem affects
health or safety. Be sure to get a written report
and the name of your inspector.
e) Give a second notice and request explanation
After the landlord has had a reasonable time to
fix the condition following your initial notice,
you must send a second written notice and request
an explanation for the delay. If you ask the
landlord for an explanation, and she does not
respond within five days, then you will have an
easier case to prove if it ever goes to court. You
should probably send this notice certified mail to
prove the landlord received it. Remember to safe a
copy of your notice. The notice should say that it
is your second written notice, that you are
requesting an explanation, and it MUST also
explain that you plan to do if the landlord does
not repair the condition. You have three basic
alternatives: terminate the lease, repair and
deduct the amount from your rent, or file a
lawsuit (which are described below in more
detail). It may be a good idea to list all the
alternatives in your second notice, and decide
later which ones you will use. You should also
consider getting other tenants, city officials,
and the media involved. See
"Introduction."
f) Tenant remedies
If the landlord has clearly had a reasonable
amount of time to repair the condition after the
received your second notice (usually 7 days) and
has failed to make a diligent effort to remedy the
problem, you can exercise one or more of the
alternatives listed in your second notice: I)
terminate the lease and move out, ii) have the
problem fixed yourself and deduct the amount spent
from your rent as long as ALL of the procedures
mentioned below are followed, and/or (iii) sue the
landlord for failing to repair.
i) Terminating the Lease
If you decide to terminate the lease, you must
have informed the landlord in your second written
notice that you would terminate the lease unless
the condition was repaired or remedied within
seven days. Remember, you have the right to
terminate only if the condition materially affects
the physical health or safety of an ordinary
tenant, and you were not delinquent in paying your
rent. Also see "Warning."
If you terminate the lease, you must move out.
You can stop paying rent on the day you move out,
or the date of termination (whichever is later).
If you correctly terminated the lease, you are
entitled to a refund of rent from the day you
terminated the lease or moved out (if you paid
rent in advance); you may use your deposit to pay
any rent that is owed without having to go to
court. If you terminate the lease, you may still
sue the landlord (if you give the proper notice)
for one month's rent plus $500, actual damages,
attorney's fees, and court costs. But you cannot
sue to obtain a reduction in rent or to have the
condition repaired, not can you exercise any
repair and deduct remedies discussed below.
When you move out, the landlord must return
your security deposit, unless he has reason to
deduct an amount from the deposit (such as for
damage you caused to the premises). Your landlord
cannot keep your security deposit solely because
you terminated the lease under these
circumstances. If your landlord does not refund
the unearned portion of your rent, or wrongfully
withholds your security deposit, you may wish to
file suit against him. See also "Security
Deposits."
ii) Using Repair and Deduct
A tenant can hire a contractor to repair a
condition that affects health or safety, after
giving the required notices and waiving a
reasonable time. The tenant is allowed to deduct
the money paid to the contractor from the NEXT
month's rental payment. Also see
"Warning."
However, repair and deduct can be used ONLY if
one of the following occurs:
* the landlord has failed to remedy the backup
or overflow of raw sewage inside the dwelling or
flooding from broken pipes or natural drainage
inside the dwelling;
* the landlord has agreed to furnish water and
the water has stopped;
* the landlord has agreed to furnish heating or
cooling and the equipment is not working
adequately, and the landlord has been notified in
writing by a local health, housing, or building
official that the lack of heat or cooling
materially affects health or safety of an ordinary
tenant; or
* the landlord has been notified in writing by
a local health, housing, or building official that
the condition materially affects health or safety
of an ordinary tenant.
After giving a proper second notice and meeting
the other conditions as outlined above, you must
wait 7 days for the landlord to repair the problem
before you can hire a contractor to repair it.
(Exception: You do not have to wait at all if the
condition involves sewage problems or flooding,
and you only have to wait 3 days if the condition
involves lack of drinking water, heat, or air
conditioning.) Although the repair and deduct
remedy can be used as often as necessary, the
amount that can be deducted to repair any one
condition CANNOT be greater than one month's rent.
[A tenant of Section 8, government-owned or
-subsidized housing may repair and deduct up to
the monthly fair market rent of the dwelling from
their future rental payments.] Further, the total
deductions in any one month cannot exceed one
month's rent. The company or contractor you hire
to make the repairs must be listed in the phone
book or classified ads, and must not have any
personal or business connection with you. You
cannot deduct for repairs made yourself, unless
the landlord agrees (get the agreement in
writing).
A landlord has the right to a tenant from
exercising the repair and deduct remedy by
delivering an Affidavit of Delay. This affidavit
can delay repair up to 30 days, but it must set
forth the reasons for the delay including, dates,
names, addresses, and telephone numbers of
contractors, suppliers, and repairmen contacted by
the owner. Affidavits must be made in good faith
and the landlord must continue diligent efforts to
repair the condition. A landlord can be severely
penalized for wrongfully issuing Affidavits of
Delay. Check with a lawyer or tenant association
for more details.
iii) Filing Suit
If you successfully sue, you can get a court
order requiring the landlord to repair the
condition, and you can also recover your actual
damages (direct costs resulting from landlord
failing to repair), a reduction in rent effective
from the first notice to repair until the
condition is remedied, and one month's rent plus
$500, reasonable attorney's fees, and court costs
from the landlord. Also see "Warning."
Filing suit in Justice of the Peace Court is
cheaper and faster than doing so in County or
District Court. You may represent yourself in
Justice of the Peace Court (or in the other
courts). However, by filing in Justice of the
Peace Court, you will be limited in some small
respects. First, the total amount you recover
cannot exceed $5,000, plus court costs. Second,
the justice of the Peace cannot order your
landlord to repair the condition, as described
above. Third, the landlord can appeal the case
(and so can you) to the County Court for a new
trial (and thus not be bound to the judgment of
the Justice of the Peace Court). One advantage to
filing suit in County or District Court is that
you can get a court order to make the landlord
repair or remedy the condition that endangers your
health or safety. However, filing suit in these
courts will probably require the expertise of a
lawyer, the costs will be higher, and your case
may not be tried for a long time.
Exception For Major Damage
Special rules apply if the unsafe condition
results from an insured casualty loss such as
fire, smoke, hail, explosion, or similar cause.
Under those circumstances, the landlord is not
required to start her repairs until he gets paid
by his insurance company. He still has a
reasonable time after receiving the insurance
proceeds to complete the repairs. However, as long
as the tenant or his guests were not responsible
for the damage, the tenant may terminate the lease
at any time prior to the completion of the repairs
and be entitled to a pro rata refund of any rent
paid in advance and the appropriate deposit; or be
entitled to a reduction in rent proportionate to
the extent the premises are unusable (unless the
lease states otherwise). If an agreement cannot be
reached regarding a rent reduction, a suit must be
filed in either County or District Court.
Retaliation for Requesting Repairs
Your landlord is restricted for six months from
retaliating against you because you gave him a
repair notice. Illegal retaliation occurs when the
landlord wrongfully terminates the lease, files
for eviction, deprives the tenant of the use of
the premises, decreases services to the tenant, or
increases the rent because a tenant requested
repairs to the premises. There are several
exceptions. For instance, the landlord can
increase the rent if the lease has a provision for
an increase in the rent, due to higher utility
taxes or insurance costs. The landlord may also
increase the rent or reduce services if it is part
of a pattern of rent increases or service
reductions for the whole complex. Furthermore, the
landlord can still terminate the lease and evict
you under certain conditions. For example, if you
fail to pay your rent, intentionally cause
property damage to the premises, threaten the
personal safety of the landlord or her employees,
or break a promise you made in your lease, your
rights to possession can be terminated and you can
be evicted. You are also responsible for your
family and guests. There are other proper grounds
for termination available to the landlord that are
not considered retaliatory. Of course, if you
received a notice of termination at the end of the
lease before you gave the landlord notice to
repair, you are not protected. (This is why it is
a good idea to give the first repair notice in
writing, date it, and make a copy for your
protection.) There may be another exception to
obtaining retaliation damages if the landlord
legally closes down the premises (but you are
typically entitled to damages in this situation).
See "Condemned or Closing Property."
If the landlord engages in activity that
constitutes unlawful retaliation, you may seek a
court order against your landlord, awarding you:
(1) one month's rent, plus $500; (2) the
reasonable costs to move to another place; and (3)
attorney's fees and court costs. But remember, the
landlord will win if he can prove that his actions
were not for purposes of retaliation.
[Although the Texas Property Code does not
specifically provide protection for other forms of
retaliation a tenant may be able to successfully
sue a landlord for other forms of improper
retaliation.]
Withholding Rent Is Almost Always a Bad Idea
Your landlord can be awarded actual damages
plus other statutory penalties (and he can
probably terminate your rights to possession and
evict you) if you withhold any portion of your
rent without an agreement, unless: (1) you first
obtain a court order permitting you to do so; (2)
if you have properly repaired and deducted as
described above; or (3) if you have lawfully
terminated your lease because of the landlord's
unlawful behavior with regard to repairs (and you
are using your deposit as rent) as described
above, or your utilities have been terminated
improperly. If you improperly try to use your
deposit as rent you can also be penalized for
three times the amount you withheld. Therefore,
only tenant organizations with large numbers and
an extreme commitment should consider such a
serious and risky tactic. See "Warning."
Improving or Changing the Premises
If a tenant changes the premises and reduces
its value, the landlord can hold the tenant
responsible. Even if the change increases the
value, a tenant has no absolute right to make an
alteration, and a tenant could be responsible for
returning the premises to its original condition.
However, the landlord may have to let the tenant
modify the premises at the tenant's expense if the
problem affects the tenant's health or safety. For
example, the landlord may not have to alter an
apartment so it is wheelchair-accessible at his
expense, but the landlord may have to allow a
tenant to alter the apartment at the tenant's
expense. In some situations, the landlord cannot
charge the tenant for expenses required to return
the apartment to the original condition after the
tenant moves out. If you want to install a
bookcase, hang a chandelier, paint the walls, lay
carpet, or make other alterations, discuss your
idea with your landlord. Get her permission first,
and you might try to get her to agree to let you
deduct the costs from your next month's rent.
Determine whether you can take the addition with
you when you move. Then put your agreement in
writing. If an agreement cannot be reached, get
further advice from an attorney or tenant
association.
Condemned or Closing Property
The landlord may decide to close the rental
property where you live for a variety of reasons.
A landlord CANNOT close down the property in the
middle of a lease term (with or without notice)
without breaking his agreement with you. If he
does this, he can be liable for actual damages,
moving expenses, your deposit, and other statutory
penalties. If a governmental agency has condemned
the premises, contact them to discuss their
intentions. They generally cannot take any action
against you for continuing to occupy the premises,
and you may be entitled to some relocation
assistance from the municipality.
A landlord can legally close the premises by
failing to renew the lease, or may terminate a
month-to-month lease by giving you a 30-day
advance notice. If the landlord does this in
response to your requests for repairs, the
landlord will also be liable to you for moving
expenses, your deposit, and other statutory
penalties. If you stay longer, after the landlord
legally closes down the property, the landlord can
remove you ONLY by going through the courts. See
"Lockouts" and "Eviction." If
the landlord shuts off the utilities, this will
have the same effect as closing down the premises,
and the landlord will probably still be liable in
the situations described above. You may be able to
get the utilities transferred to your name or be
able to make other arrangements, especially if the
landlord has shut off the service in the middle of
a lease term. See "Utility
Disconnection."
The landlord may allow you to transfer to
another unit she owns, although this alone will
not forgive her liability. Check out the new place
as described in "Selecting Your New
Home." Make sure that you deposit will
transfer as well, and negotiate to obtain moving
expenses (by getting one month's rent free, for
example). Get any agreement in writing. If
negotiations break down, get in touch with an
attorney or tenant association and get more
advice. In some instances, you may be able to
transfer and still sue your landlord for damages
as discussed above.
Back to Top
Locks and Security Devices
A landlord must install the following security
devices at his expense: a window latch on each
exterior window; a doorknob lock or keyed deadbolt
on each exterior door; a pin lock, a handle latch,
or security bar on each exterior sliding glass
door (after January 1, 1995, on all existing
units, and at the time of construction on all
units built after September 1, 1993, landlords
must install a pin lock and a latch or bar on all
exterior sliding glass doors); locks and bolts on
French doors; after January 1, 1995 on all
existing units, and at the time of construction on
all units built after September 1, 1993, landlords
must install a keyless deadbolt and a door viewer
on each exterior door (otherwise, the landlord
must install keyless deadbolts and door viewers at
the tenant's request and expense). Keyless
deadbolts are not required for units reserved for
the elderly or disabled if it is part of the
landlord's responsibility to check on the
well-being of the tenants. Also, keyed deadbolt or
doorknob locks are not required on all exterior
doors as long as one door has both keyed and
keyless deadbolts and the rest of the doors have
keyless deadbolts.
A landlord may not require a tenant to pay for
repair or replacement of a lock or other security
device if it breaks because of normal wear and
tear. A landlord may require a tenant to pay for
repair or replacement of a lock that was damaged
by misuse of the tenant (or the tenant's family or
guest), but only if authorized by an underlined
provision in a written lease. [The tenant has the
burden to prove that the damage was not caused by
herself, her family, or guest.] Unless a landlord
fails to timely install, change, or rekey a lock
after giving the appropriate notices and paying
any required fee as described below, a tenant
cannot install, change, or rekey a lock without
the landlord's permission.
Landlord Must Rekey Between Tenancies
A landlord must rekey or change all the
key-operated locks (or other combination locks) on
the exterior doors between each tenancy at his
expense. The landlord must rekey no later than the
seventh day after you move in. You can also ask
the landlord to rekey or change the locks
repeatedly during the tenancy, but these changes
will be at your expense.
Procedure and Remedies for Lock Problems
The landlord must install, repair, or rekey
devices within a reasonable period of time,
usually within seven days of the request. In cases
of violence occurring in the complex in the
preceding two months, a break-in, or attempted
break-in of your place, or a break-in or attempted
break-in of another unit in your complex within
the preceding two months, the reasonable period is
shortened to three days. You must notify the
landlord of the violence, break-in, or attempted
break-in for the shorter time period to apply.
Give your notice and request for installation or
repair in writing, and be sure to keep a copy of
the notice. If you are responsible for paying the
landlord for the installation, repair, or
modification of the locks, the landlord may
require the charges to be paid in advance but only
in very limited circumstances.
If the landlord fails to install, repair, or
rekey locks by the deadlines described above, you
should give a written notice to the landlord
requesting compliance (in some circumstances, a
landlord can be liable without this written
notice, but the tenant has fewer and smaller
remedies). [The notice requesting compliance will
probably be your second notice concerning your
lock or security problem.] If the landlord fails
to comply within 7 days of the compliance notice
(or 3 days if there has been foul play of the sort
described above, or if the lease fails to disclose
various tenant rights concerning security devices
as described in this section), the tenant is
allowed to do any one of the following:
unilaterally terminate the lease; install/repair
the security device and deduct the cost from the
rent; or file suit for a court order requiring the
landlord to bring all of his dwellings into
compliance, and for actual damages, punitive
damages, civil penalty of $500 and one month's
rent, court costs, and attorney's fees. Also see
"Warning."
Back to Top
Smoke Detectors
Smoke detectors are required by state law and
may also be mandated by local ordinances. For
information on whether your community has adopted
such ordinances, consult your local building,
fire, or housing codes. At least one smoke
detector must be installed by the landlord outside
of each bedroom. If several bedrooms are served by
the same corridor, one smoke detector may be
installed in the corridor in the immediate
vicinity of the bedrooms. In an efficiency
apartment where the same room is used for dining,
living, and sleeping purposes, the smoke detector
must be located inside rather than outside the
room. If there is a bedroom above the living or
cooking area, the detector must be placed on the
ceiling above the stairway.
Smoke detectors should be installed on a
ceiling or a wall. Smoke detectors installed on a
ceiling should not be closer than 6 inches to a
wall. Smoke detectors installed on a wall should
be between 6 inches and 12 inches from the
ceiling. If a smoke detector in your house or
apartment is not properly installed, you should
request that the landlord reinstall it by giving
the landlord a written notice. It is a good idea
to keep a copy of the notice for yourself.
Landlord's Duty to Inspect and Repair
The landlord has the duty to inspect and test
the smoke detector at the beginning of your
tenancy (or at the time of installation). After
you have moved in, the landlord's duty applies
only if the tenant gives the landlord notice of a
malfunction or makes a request to the landlord for
inspection or repair. The notice need not be in
writing, unless the landlord and tenant have
agreed in the lease that such notice must be in
writing (however, it is always better to give
notices in writing and keep a copy). The landlord
has a reasonable time to inspect and repair the
smoke detector, considering the availability of
materials, labor, and utilities. A landlord has no
duty to inspect or repair a smoke detector that
has been damaged by the tenant or the tenant's
family or guests, unless the tenant pays in
advance for the reasonable costs of the repair or
replacement. The landlord also has no duty to
provide replacement batteries for a
battery-operated smoke detector, as long as it was
operating when then tenant moved in.
Procedure and Remedies for Smoke Detector
Problems
If you ask your landlord to install or repair a
smoke detector in your apartment and she
improperly fails to do so within a reasonable
period of time, you should give your landlord
another written notice stating that if she fails
to comply with your request within seven days you
may exercise the remedies provided in the Texas
Property Code. If the landlord improperly fails to
install or repair a smoke detector within 7 days
of your request, you may then bring court
proceedings against the landlord or you may
terminate the lease without court proceedings.
Also see "Warning."
To succeed in court, you must be current on all
rent due to the landlord from the time you gave
him the first notice. If the damage to the smoke
detector was caused by you or your family or
guests, you must also have paid to the landlord in
advance the reasonable costs of the repair or
replacement of the smoke detector. If you bring
court proceedings against the landlord, you may be
entitled to obtain: (1) a court order directing
the landlord to comply with your request (not in
Justice of the Peace Court); (2) a court order
awarding you damages which resulted from the
landlord's failure to install, repair, or replace
the smoke detector; (3) an award of one month's
rent plus $100 as a penalty against the landlord;
and (4) court costs and attorney's fees.
Back to Top
Security Deposits
The landlord can only deduct damages and
charges from the security deposit for which you
are legally liable under the lease agreement, or
for physical damage to the property. Your landlord
cannot retain part of your security deposit to
cover normal wear and tear. Normal wear and tear
means deterioration or damage which occurs based
upon the normal intended use of the premises, and
which is not due to the tenant's negligence,
carelessness, accident, or abuse. For example, the
landlord cannot withhold part of your security
deposit for worn carpet, small nail holes,
scratches on the sink or countertops, or
fingerprints on the walls. A landlord may be able
to deduct for large permanent stains on the carpet
and crayon marks on the walls caused by you or
your guests. Even in these cases, the landlord may
not be entitled to replace all of the carpet or
paint the entire house at your expense. However, a
landlord may also be able to deduct reasonable
cleaning fees if authorized in the lease.
Landlord Must Refund or Explain Within 30
Days
Your security deposit must be refunded to you
within 30 days after you move out of the apartment
or house (provided that you give a written
forwarding address to your landlord). You can give
your forwarding address at any time; however, the
landlord's duty to refund does not exist until you
do so. If you landlord has cause to retain all or
a portion of your security deposit, he must
provide you with a refund of the balance of the
security deposit, if any, together with a written
description and itemized list of all deductions
within 30 days of your move out (if you provided
him a forwarding address).
If a landlord, who has the tenant's forwarding
address, fails either to return the security
deposit or to provide a written list of deductions
on or before the 30th day after the tenant moves
out, then the landlord is presumed to have acted
in bad faith. If your landlord retains all or part
of your security deposit in bad faith, you may sue
him and recover $100 plus three times the amount
of the security deposit that was wrongfully
withheld, plus attorney's fees and court costs. If
your landlord, in bad faith, fails to provide a
written description and itemized list of damages
and charges to you for a portion of your security
deposit that has been withheld, he has forfeited
all rights to withhold any portion of the security
deposit or to bring suit against you for damages
to the premises. Tenan | 
