Repairs

Step One:

Make sure that you are caught up on your rent and any other obligation you might have with your landlord. You generally cannot withhold your rent even if the landlord has failed to repair a problem it should have. Withholding rent will likely get you evicted in Texas.

Step Two:

Notify the landlord in writing of the problem(s) and keep a copy. An oral notice rarely triggers your legal rights and an oral notice is difficult prove. The written notice should have the date, the type of problem, and your name and address. Use our form notice if you like. You can deliver the notice in person to the manager or other person who collects the rent, but sending the notice certified mail, return receipt requested, is the best choice for two reasons: first, you will have solid proof that the landlord got your notice; and second, according to the repair statutes, you only have to give a landlord one notice of a problem if it is sent certified (and the manager also knows you mean business). Section 92.056(a)(3), Property Code.  If you deliver the written notice in person or regular mail, then to secure your rights under the repair statutes you must send the landlord two notices giving the landlord time to repair the problem.

Step Three:

Wait a reasonable time. The repair statutes presume a reasonable time is seven days. But clearly a reasonable time will be shorter in some situations and longer in others. Section 92.056(d), Property Code. If you do not see an adequate response to your notice, you should consider photographing the problem area for future use as evidence.

Exception for Repair Statutes: If your dwelling unit is damaged from fire or unusual weather (e.g., hail, tornado) the landlord does not have to make any repairs required by the repair statutes until it receives the insurance money, if the rental unit is insured against these damages.  Again, this exception only applies to the repair statutes as described below. The tenant could still argue that the landlord is breaching the lease agreement or that the landlord is violating a municipal ordinance regardless of whether the insurance company has been paid. If pressured, landlords will often offer relocations to other rental units they have available without putting up new fees, deposits or increased rents.

Step Four:

There are essentially three sources of authority in the law that can help you either prosecute or persuade the landlord to act:

First Source: Lease Agreement.

Most leases talk about what the landlord is responsible for, and what the tenant is responsible for. The form lease drafted by the Texas Apartment Association (TAA) may state in part: "We'll maintain the dwelling in good order and pay for repair and maintenance." If you have a lease with this provision you can use this provision to assert that the landlord is responsible to fix dish washers, leaking faucets, and more serious matters.

Second Source: Repair Statutes

Under Texas law, regardless of what the lease says the landlord is required to repair problems that materially affect the physical health or safety of an ordinary tenant and are not caused by the tenant, occupant, or a guest. If the problem developed from normal use of the premises by the tenant, occupant or guest, the landlord is still responsible for repair. For example, leaking plumbing, rodents, broken air-conditioning in extremely hot temperatures, sewage leaks, shattered sliding glass doors or caved ceilings all affect health and safety. Although a non-working garbage disposal or a leaky faucet is inconvenient, it may not materially affect health or safety.

Third Source: Municipal Ordinances.

Most cities have minimum housing standards that a landlord must comply with. For example, most cities require hot water to be available in the kitchen and bathroom of all dwellings, and that it must meet a specific temperature. Check with your city to determine if there is an applicable ordinance that addresses your problem. Here are links to ordinances of many Texas cities:

Options:

Option #1) terminate the lease and move;

Option #2) file suit to obtain damages and an order requiring the landlord to fix the problem (it's fast, easy and has fewer risks);

Option #3) have the problem repaired and deduct the cost from the rent (this is hard to do correctly, and most landlords file for eviction for nonpayment anyway, which bad for your rental record even if you win);

Option #4) notify the city code inspector about the problem;

Option #5) fix the problem yourself; and/or

Option #6) live with it until your lease expires

WARNING: Do not attempt to utilize any of these options before carefully reading more about each. If you improperly terminate your lease or deduct repair costs from your rent you could expose yourself to liability, or eviction.

Options

Option #1: Terminate the lease.

Pursuant to the repair statutes you can theoretically terminate your lease. It is advisable to send your landlord a notice when you decide to call it quits. The notice might state that:

(1) you are experiencing a condition that materially affects the physical health or safety of an ordinary tenant (2) you sent a written request for repairs certified mail, return receipt requested (or sent two by hand delivery or regular mail); (3) you were not behind on the rent when the notice(s) were sent; (3) the landlord had a reasonable time to repair or remedy the condition; (3) the landlord failed to diligently repair the problem; and (4) that the lease agreement is hereby terminated.

Each of these elements above should be true -- if not, you may not be able to terminate your lease pursuant to the repair statutes. You should also provide a move out date and a forwarding address so that you can (in theory) recover your security deposit. For help in drafting see the form termination notice. It is probably wise to send this notice to the landlord certified mail, return receipt requested. Keep a copy of the postal receipt along with the notice(s) you sent requesting repairs. It is also good to have a photograph or two of the problem.

Again, in theory, pursuant to the repair statutes (specifically Section 92.056(f) Property Code), if you properly terminate your lease agreement you are:

(1) entitled to a prorated refund of rent from the date of termination or the date you move out, whichever is later;

(2) entitled to deduct your security deposit from the rent without necessity of lawsuit or obtain a refund of your security deposit according to law; and

(3) not entitled to the judicial remedies (Option #2) or the other repair and deduct remedies (Option #3) provided by the repair statutes.

The reason this is all theoretical is because no tenant that we are aware of has successfully terminated their lease because of a repair problem without significant difficulties. While the tenant does everything correctly according to the law, the landlord often does not agree. Many landlords consider termination by the tenant to be a premature termination of the lease and then keep, the security deposit, claim the tenant owes rent under the lease, and place negative information on the tenant's credit report.

Option #2: Suing is often the fastest, best solution.

You can sue the landlord in justice court for an order of repair and damages without a lawyer. 

If you choose to sue for the landlord's failure to repair a condition that affects health or safety under the repair statutes, the court may: (1) direct the landlord to repair the condition;(2) reduce your rent from the date of your first written repair for the loss of value and use of the rental unit; (3) direct the landlord to pay you one month's rent plus $500 in penalties; and (4) award you the amount of your actual damages, court costs and attorney's fees (if you choose to have an attorney represent you).

A hearing will be scheduled within one week of service of the documents on the landlord.

If you want to file suit, check out the rules and the form here, and our tips on how to sue your landlord. There is less risk with this option; however, if you file suit inappropriately and the landlord hires a lawyer, the lawyer may request the judge to award the landlord their attorney fees.

During the lawsuit you must keep paying your rent and follow all the other terms of the lease (including the house rules). Often management companies handle matters for the actual landlord and your suit will draw the actual landlord's attention. Often just filing the suit can get you positive results. Court costs are low in justice court (less than $100) and can be waived if for the truly indigent.

What are the risks? As long as you filed the suit in good faith, you stand to lose the court costs you already paid and some of your time. It is also possible that your landlord might retaliate against you by trying to evict you or raise your rent. Retaliation is often illegal, but you still have to deal with this problem and you should consider that before filing suit.  See Retaliation for more information.

Option #3: Repair and deduct.

The simple explanation is that you use your own money to fix the landlord's problem and then in theory you get to deduct the expenses from your rent. First, you should not have to use your money to fix these problems. These problems are the landlord's responsibility. Second, the law allowing this remedy (Section 92.0561, Property Code) is quite complicated.

Third, in addition to following the other steps mentioned previously, you must have the dwelling inspected by the appropriate local housing, building, or health official who must then notify the landlord, in writing, that the condition materially affects the health or safety of the tenant. (Exceptions: raw sewage has overflowed into the dwelling; the dwelling has flooded because of broken pipes; or the water to the dwelling has been cut off and the landlord has agreed in the lease to furnish water). Fourth, landlords rarely believe the tenant has properly used this remedy and do not honor the tenant's deduction from the rent. Thus, when the tenant does not pay the rent to the landlord and instead pays the plumber to keep sewage from running all over the floor, the landlord politely claims the tenant owes rent and proceeds to take a variety of actions which might include a lock out or eviction. See what we mean? This remedy is no remedy.

But in theory, if (1) the city code inspector certifies in writing to the landlord that the condition materially affects your health and safety (or the problem fits within an exception); (2) the landlord has not made a diligent effort to make the repair after you have given proper written notice and you are caught up on your rent; and (3) you have sent another written notice indicating you intend to repair the premises (and specify what you intend to have done) and deduct the cost; then you may have the repair made by a company, contractor, or repairman.

The total cost of the repair cannot exceed one month's rent or $500, whichever is greater. If you deduct the cost of the repair from the rent payment, you must provide the landlord with a copy of the repair bill and the receipt for its payment along with the rental payment remaining after the deduction.

Another exception: You may not contract for repairs from a professional if the landlord gives you an affidavit (a sworn statement) explaining the reasons for the delay before you contract for the needed repairs.

This is only a summary of the prerequisites of this alleged option. Read the repair statutes carefully and consider consulting with an attorney before using this remedy.

Option #4: Call local code inspector.

Some cities have very few code inspectors, it may be difficult get one to come out to inspect a problem. If you don't get satisfaction contact your local elected representative, and maybe you will get more attention. Also, it is wise to put your complaint in writing to the code inspector office and keep a copy in order to provide you some protection against retaliation.

FORMS

Notice to Landlord Requesting Repair

Termination Notice

District Court Petition for Repair

Justice Court Lawsuit Petition for Repair and Damages

Note that the procedure to file suit and request damages and an order from justice court became effective January 1, 2010.  The rules for these suits and a form petition were recently enacted.  See link to the rules and petition here (petition on page 12).