Repairs

Check out this flyer from BASTA and TRLA to understand your right to repairs during COVID-19 (en español).

Before asking for repairs

Make sure that you are caught up on your rent and also in compliance with anything else required by the lease. You cannot withhold (not pay) your rent even if the landlord has failed to repair a condition that needs repair. Withholding rent will probably get you evicted in Texas.

Notify the landlord in writing of the problem(s) and keep a copy.

You should always follow the landlord’s procedure for requesting repairs  – – whether that is a work order system, an on-line portal, an in-person report, a text message, an email, or a telephone call.  But if the landlord does not repair the condition that affects health and safety, the law requires written notice to the landlord before the tenant may seek judicial remedies.

The written notice should include the date, the type of problem, and your name and address. 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: (1) you will have proof that the landlord got your notice; and (2) according to the repair statutes, you have to give a landlord only one notice of a problem if it is sent certified mail. See Section 92.056(b)(3), Property Code.  If you deliver the written notice in person or regular mail, you have to send the landlord two notices and give the landlord time to repair the problem in order to secure your rights under the law. 

For more on this, check out this video from Texas Tenants Union.

Notice to landlord requesting repair

This notice tells the landlord that there’s a problem that needs to be repaired. You have to give the landlord only one notice of a problem if it is sent by certified mail return receipt requested in order to use the statutory remedies provided in the Texas Property Code. Make sure you’re current with your rent when you send the notice. If you prefer to give notice by hand delivery or regular mail you must send the landlord two notices about the problem in order to use the statutory remedies authorized by the Texas Property Code. Do not send both notices at the same time; wait a reasonable time (generally seven days) between each notice.

BASTA Austin has put together a repair request with COVID-19 precautions included in the notice, linked here (en español).

You have to wait a “reasonable time” before taking legal action.

The repair statutes (laws) say a reasonable time is seven days. But it really depends on your situation. Seven days might not be a “reasonable” time to wait. See Section 92.056(d), Property Code. If the landlord’s repair work is insufficient, you should take photos of the work so that you can use them as evidence in the future.

Disasters are an exception for repair statutes.

If your home is damaged from fire or unusual weather (like hail, tornado, hurricane) the landlord does not have to make any repairs until they receive insurance money, if the rental unit is insured against these damages.  This exception only applies to the repair statutes as described below. You 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 paid. If pressured, landlords might let you relocate to other rental units they have available without putting up new fees, deposits or increased rents.

There are three sources of law that apply to repair issues.
  1. Lease agreement

Most leases explain what the landlord has to do with respect to repairs, and what the tenant has to do to request repairs. One form lease that many landlords use, from the Texas Apartment Association (TAA), might say something like: “We’ll maintain the dwelling in good order and pay for repair and maintenance.” If you have a lease that says something like this, you can use this provision to assert that the landlord needs to fix dishwashers, leaking faucets, and more serious problems.

  1. Repair statutes

Under Texas law, no matter what the lease says the landlord has 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 property 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.

  1. Municipal ordinances

Most cities have minimum housing standards that a landlord must follow. For example, most cities require hot water in the kitchen and bathroom of all dwellings, and that it must meet a minimum  temperature. Check with your city to determine if there is an ordinance that addresses your problem.

What are my options if the landlord doesn’t fix the problem and I have given proper notice to repair a condition that affects my health or safety?

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.

Option #1: Live with it until your lease expires.

Option #2: Fix the problem yourself, but only if the landlord gives you permission in writing and it is clear who will pay for the cost of the repair.

Option #3: Call the local code inspector.

Some cities have very few code inspectors, and it may be difficult get one to come out to inspect a problem. If you have trouble getting help from your local code inspector, contact your local elected city council representative to raise attention to your issue. It is always wise to put your complaint in writing and keep a copy in order to provide you some protection against retaliation.

Option #4: Sue your landlord to obtain damages and an order requiring the landlord to fix the problem (See 92.056(e)(4) and 92.0563(a) of the Texas Property Code).

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. Texas Rules of Civil Procedure 509.1 – 509.9 set forth the rules for justice court repair lawsuits.

If you choose to sue the landlord for failure to repair a condition — after proper notice — that affects health or safety, the court may: (1) order the landlord to repair the condition;(2) reduce your rent from the date of your first written request; (3) direct the landlord to pay you a civil penalty of one month’s rent plus $500; and (4) award you the amount of your actual damages, court costs, and any attorney’s fees.

Under Rule 509.3(b) of the Texas Rules of Civil Procedure, the justice court must hold the trial between 10 and 21 days after the lawsuit petition is filed.

If you want to file suit, make sure to read the rules, and our tips on how to sue your landlord. If you file suit and the court rules against you, the court  may award your landlord their attorney fees (you would owe them money), if the lease provides that the prevailing party in any litigation may recover fees from the other party.

During the lawsuit you must keep paying your rent and follow all the other terms of the lease (including the house rules). Often just filing the suit can let your landlord know that you have a serious issue. Court costs are low in justice court (less than $100) and can be waived if you have a very low income. See Sue your landlord for more on this.

What are the risks? You may lose and may be liable for the landlord’s attorney’s fee if the landlord hires an attorney. It is also possible that your landlord might retaliate against you by trying to evict you or raise your rent. Retaliation is illegal, but you still have to deal with this problem and you should consider that before filing suit. See Retaliation for more information.

Option #5: Terminate the lease (See 92.056(e)(1) of the Texas Property Code).

According to the repair statutes you can terminate your lease, after proper notice, if the landlord doesn’t make repairs that affect health and safety, but we don’t recommend this option.  Many landlords will claim the tenant does not have the legal right to terminate the lease because the condition does not affect health and safety or the landlord has made reasonable efforts to repair. Thus, the landlord will report to credit reporting agencies that the tenant breached the lease and owes unpaid rent.

If you do decide to terminate the lease, you should tell your landlord that you’re ending your lease in a written notice that says all of the following: 

  1. “The condition of this rental materially affects the physical health or safety of an ordinary tenant.”
  2.  “I sent a written request for repairs by certified mail, return receipt requested.” OR “I sent two written requests by hand delivery or regular mail.” 
  3. “I was not behind on rent when I sent the notice(s).”
  4. “You had a reasonable time to repair or remedy the condition.”
  5.  “You failed to diligently repair the problem.”
  6. “I am terminating the lease agreement effective [insert date] and will vacate on that date and return the key as follows…”  
  7. “My forwarding address for return of my security deposit is: [insert address].”

1-6, written above, must be true for you — if not, you cannot legally  terminate your lease under Texas laws (repair statutes). You may hand deliver the notice to the landlord or mail it by regular mail, but you should also mail it by certified mail, return receipt requested. Keep a copy of the letter for your records.  Also, keep a copy of the postal receipt along with the notice(s) you sent requesting repairs. You should also take photos of the conditions that the landlord did not repair and photos of the unit after you have cleaned it and removed your property.

The repair statutes (specifically Section 92.056(f) Property Code) say, 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 get a refund of your security deposit according to law; and

(3) not entitled to the judicial remedies (Option #4) or the other repair and deduct remedies (Option #6) 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 may do  everything correctly according to the law, the landlord may not agree. Many landlords consider termination by the tenant 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 #6: Repair and deduct.

Repair and deduct is paying for the repairs yourself and then subtracting them from your rent. This is legally complicated (Section 92.0561, Property Code). You should not attempt this unless you are working with a tenant counselor or an attorney.

Bed bugs

Check out this page from Texas A&M on bed bugs for information about what to do if you have bed bugs. 

Check out this page from TexasLawHelp.org for legal information about bed bugs. 

For other information about repairs, check out this page from TexasLawHelp.org.