It’s either 99 degrees or 39 degrees and your AC/Heater is out. You call your landlord for what has got to be the 6th time in the last month and he once again assures you that he will get someone on it as soon as he can. Or maybe the only toilet in your apartment complex is on day 4 of not working. The possible situations are infinite but your basic question remains the same: When does my landlord have to make repairs and what can I do if he doesn’t?
The answer to that question is all in Chapter 92 of the Texas Property Code. The law requires the landlord to “make a diligent effort to repair or remedy a condition if”:
- The tenant gives notice to the person or place where rent is paid;
- The tenant is not behind on their rent at the time of the notice; and
- The condition materially affects the tenant’s health or safety, or there is no hot water above 120 degrees.
If you have a written lease and the lease specifies that this notice must be in writing, then you must give this notice in writing and not orally.
(One important exception to the above, if the condition was caused by the tenant, their guests, other occupants or the tenant’s family, and is not the result of normal wear and tear, then the landlord does not have the obligation to repair it under the normal law for landlord repairs). Texas Property Code 92.052.
So you have an issue that you didn’t cause, and you send the landlord an email, text or letter detailing what’s wrong and asking them to fix it. Then what? Then you need to give the landlord a reasonable amount of time to repair the condition. Naturally, the next question is “what is reasonable?” and of course that answer depends on the specific circumstances. The law assumes that one week is a reasonable amount of time for repairs. However, the circumstances can change that. If the roads are frozen solid for a week straight it would make sense that the landlord can’t get someone out there for 2 weeks to fix the condition. If the water heater has gone out and been out for 10 days with no word from the landlord, then most courts would say a reasonable amount of time has passed. So, what do you do from that point? Well, if you sent the first written notice by using certified mail, registered mail, or any form of mail that provides a tracking number, then your job is done and you can proceed straight to choosing an appropriate Tenant Remedy. If you did not send the initial notice using one of those methods then you need to give the landlord a second written notice.
So, whether you need to send 1 or 2 notices, you’ve done it and the landlord still has not repaired anything after a reasonable amount of time, what now? Texas law gives you the following options:
OPTION 1: TERMINATE YOUR LEASE
This one is pretty straightforward. You are entitled to terminate your lease and move out. So for example, if you give written notice that the water heater is out on the 1st via certified mail, the landlord ignores you for 2 weeks, and you move out on the 15th, you are entirely in the right and Texas law protects you. Further, you’re entitled to:
- A pro rata refund of your rent (So for example if the month is half over you are owed half that month’s rent back); and
- The return of your security deposit in accordance with the law or deducting your security deposit from the rent.
If you pursue this option then you can’t pursue any of the other remedies listed below but at least can leave a poor situation. Even better, if your landlord tries to come after you for following this procedure you can sue them for unlawful retaliation among other claims.
OPTION 2: REPAIR AND DEDUCT FROM THE RENT
Texas law allows you to go out and hire someone to fix the problem for you, then deduct their bill from your rent paid to the landlord. However, there are some caveats there and the law has some serious pitfalls so this option needs to be complied with very strictly and carefully and you should go and read Sec. 92.0561 of the Texas Property Code very carefully. Here are the highpoints:
- You may not deduct more than one month’s rent or $500, whichever is greater;
- You may have repairs done and deduct as necessary as long as the total amount you pay in a single month does not exceed one month’s rent. (So you could have repairs done in March up the amount of a month’s rent and then in April have more work done up to a month’s rent again but can’t have all the work done in March and be allowed to deduct both March and April’s rent).
- Check Your Lease! Did you sign any kind of waiver about this situation in your lease that is bolded or underlined in the lease or a separate agreement? If so then refer to exactly what that agreement holds as it is possible to waive or alter this right.
- One of your written notices to the landlord specified to them that you intended to exercise this right to fix the condition and gives a reasonable description of the repair that’s needed and the remedy you intend to exercise.
- You have the local housing authority, building authority or health official notify the landlord in writing that the condition is materially affecting your health or safety.
If you have satisfied all of the above then you are free to get a contractor to come and do the work. Do not do the work yourself as you can’t deduct for this unless you have an agreement with your landlord. The repairman must be listed in the local yellow pages, business pages or classifieds advertising section of a publication in the city, county or adjacent county from where the property sits. When deducting, you must give your landlord a copy of the bill and the receipt showing you actually paid the contractor. Then, you may deduct the rent.
One final caveat though, if the landlord makes the repair after you have hired a repairman but before he actually makes the repair then you must stop the repairs and the landlord is only liable for whatever you have been charged so far by the repairman. That amount you can still deduct from your rent. If the landlord delivers to you a signed affidavit (normally a notarized statement) detailing why he is running late on repairs then you must delay also. At this point it is advised that you seek out an attorney as you are in a very technical situation.
OPTION 3: GETTING A COURT ORDER FORCING THE LANDLORD TO ACT
The law also entitles you to simply proceed to court by filing with the appropriate court and getting an order for the following:
- an order directing the landlord to take reasonable action to repair or remedy the condition;
- an order reducing the tenant’s rent, from the date of the first repair notice, in proportion to the reduced rental value resulting from the condition until the condition is repaired or remedied;
- a judgment against the landlord for a civil penalty of one month’s rent plus $500;
- a judgment against the landlord for the amount of the tenant’s actual damages; and
- court costs and attorney’s fees, excluding any attorney’s fees for a cause of action for damages relating to a personal injury.
The most important part of that is the part stating that the landlord becomes responsible for reimbursing you your attorney’s fees. This means that if you do everything right and the landlord is still in the wrong, and you’ve documented everything, you should have no problem getting an attorney to take on your case as the law says that the landlord has to pay them. That also means you can know that anything you pay out to an attorney will be coming back to you ultimately once you get a judgment and can collect on it.
So, the next time you are faced with a situation involving pivotal repairs, pests and infestations or anything along those lines, remember these rights, document everything and seek out legal counsel to enforce your rights under Texas law. If you’re going to pay rent to have a place to live, you may as well make sure you’re getting your money’s worth.