The rights and obligations of landlords and tenants with regard to the duty to repair under a Texas lease are addressed by the Texas Legislature at Section 92.051 of the Texas Property Code.
The landlord must make a "diligent effort" to repair or remedy a condition which "materially affects the physical health or safety of an ordinary tenant." Unfortunately for everyone, this phrase is not defined in the statute.
The tenant must give notice of the condition "to the person to whom or to the place where rent is normally paid." Further, the tenant must not be delinquent in the rent at the time the notice is given. The notice must be in writing only if the tenant's lease is in writing and requires written notice. Recommended practice would be to give written notice by certified mail to the person or place where the rent is normally paid. The tenant will then be able to prove proper notice was given if a dispute arises later.
Unless the condition was due to "normal wear and tear," the landlord does not have a duty to repair a condition caused by the tenant, the tenant's family or guests or "lawful occupants of the tenant's dwelling."
The tenant has the burden of proof if a court case is filed. If the tenant makes a written damand for an explanation of a delay in making a repair or remedy, the landlord must provide a written explanation of the delay or "the landlord has the burden of proving that he has made a diligent effort to repair and that a reasonable time for the repair did not elapse."
Warning: If the condition results from an insured "casualty loss" (such as fire, smoke, hail, explosion or a similar cause), the period for repair does not begin until the landlord receives the insurance proceeds.
If, after a "casualty loss" the rental premises are "totally unusable for residential purposes" and if the loss was not caused by the tenant, a member of the tenant's family or a tenant's guest or lawful occupant, either the landlord or tenant can terminate the lease by giving written notice to the other at any time before the repairs are completed.
If, on the other hand, after a casualty loss the premises are partially unusable for residential purposes (and if the "casualty loss" was not caused by the tenant, family or guests or lawful occupants), a reduction in rent is available--but only on court judgment or by agreement as provided in the lease.
Section 92.056 of the Texas Property Code lists the remedies available to tenants after all the hoops have been jumped through (including, but not limited to written notice, being current on the rent and giving the landlord a reasonable time to repair considering the nature of the problem and "reasonable availability of materials, labor and utilities"). The tenant may:
(1) terminate the lease if the condition is not repaired within seven days after tenant's notice of intent to terminate;
(2) have the condition repaired;
(3) under certain circumstances, deduct the cost of repairs, up to the amount of one month's rent. This is a very complicated procedure, and the conditions of Section 92.0561 take three pages of law to cover!
(4) obtain "judicial remedies" under Section 92.0563. Those include:
(a) a court order directing the landlord to repair or remedy the condition;
(b) a court order reducing the tenant's rent in proportion to the reduced rental value caused by the condition;
(c) a judgment against the landlord for one month's rent plus $500.00;
(d) court costs (such as filing fees and service of citation fees) and attorney's fees (excluding any attorney's fees for a personal injury claim).
There is also a section of the act prohibiting "retaliation by landlord" within six months of the tenant's notice to repair. This section is also full of qualifiers and exceptions.
The landlord may recover actual damages from the tenant if the tenant withholds rent in violation of the act. And if, after the landlord has notified the tenant in writing of the illegality of the tenant's rent withholding or tenant's proposed repair and penalties of this act, the tenant still withholds the rent or causes the repairs to be done, the landlord may recover from the tenant one month's rent plus $500.00. The prevailing party in such a lawsuit can recover attorney's fees from the nonprevailing party.
A managing agent, leasing agent or resident manager is the agent of the landlord for purposes of notice and other communications required under this act.
As one can see, the State Legislature has created a complicated act that is full of exceptions. However, the duties and obligations of both the landlord and the tenant are set out in some detail. This article has only touched on some of the aspects of this law. Specific questions should be addressed to your lawyer.
Written by Donald Ray Burger, Attorney at Law
Last revised: July 17, 1996
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