Kevin Robinowich
Assistant Professor of Law, UNT Dallas College of Law
ISSUE 16 | FALL 2024 | CONSUMER PROTECTION |
I. Introduction
Tenants frequently need to ask their landlords to repair property conditions. Often, this process works smoothly: you inform your landlord about the needed repairs, and the landlord completes them promptly. However, some landlords fail to respond to proper repair notices in a timely manner––or at all. You need to understand your rights as a tenant and how to exercise them in these situations.¹
This article will explain some of your options as a tenant. While you may have several options available, the law requires you to take specific steps before using them. If you skip these steps, you might face increased costs, eviction, or other legal detriment. The Texas Property Code establishes these requirements to promote fair dealings between landlords and tenants and prevent retaliatory actions.
This article covers residential leases under the Texas Property Code and explains how the law handles some property repairs. Your lease may modify some responsibilities between you and your landlord. For example, your lease might specify who must pay for certain repairs.² While this article will help you understand your legal rights, you should consult with a lawyer before taking any action.
When you read this article, when you see the word “you,” it is used to indicate that you are the tenant.
Before asking your landlord to make a repair, ask yourself these key questions:
1. Does the law require your landlord to make this repair?
Have you stayed current with your rent and followed all lease terms?
What steps must you take to enforce your repair rights?
If your landlord refuses to make legally required repairs, what options can you pursue without finding yourself in legal trouble?
The following sections will help you understand your rights and prepare for discussions with your legal counsel before taking action.
II. What conditions must a landlord repair?
For a landlord to be legally required to act, you must (1) provide notice to the landlord (the person or organization to whom rent is normally paid, or to the location where you pay rent) of the specified condition in need of repair and (2) be current on rent at the time the notice is given.³
If both of those requirements are satisfied, then a landlord must make a “diligent effort” to repair conditions that (1) “materially affect the physical health or safety of an ordinary tenant”⁴ or (2) were created by the landlord’s failure to provide a device—in good working order—for hot water of a minimum temperature of 120 degrees Fahrenheit.⁵
Generally, the law only requires the landlord to fix conditions caused by normal wear and tear. Your landlord does not have to repair issues caused by the tenant, a lawful occupant of the dwelling, a tenant’s family member, or a “guest or invitee” of the tenant.⁶
Despite what you may think, a landlord is not required to provide utilities if utility lines are not reasonably available.⁷ Additionally, a landlord need not provide security guards.⁸
Thus, before taking legal action against your landlord for failing to make a repair, ask yourself these questions:
1. Did you tell the landlord about the need for repair?
2. Were you current on your rent when you told the landlord about the need of the repair?
3. Does the condition of the property materially affect the physical health or safety of an ordinary tenant?
4. Did you, your family, or your guest cause the damage?
III. What steps must a tenant take to request repairs?
Remember, if you fail to take the proper steps under the law, then you may open yourself up to legal liability. First, make sure you are current on rent at the time all notices are made. Second, be sure to follow your lease’s requirements for repair notices. You will see in this section that either one or two notices may be required from the tenant to the landlord notifying the landlord of the need to repair a condition meeting the standards detailed above.
To guide yourself through your obligations as a tenant, ask yourself:
1. Does your lease require you to make the first notice in writing?
2. Should you send your first notice in writing anyway, following the legal requirements for the second notice below? This might prevent you from needing to send a second notice.
3. How long does your landlord have to make the repair?
4. Did your landlord provide an affidavit of delay that legally extends the time allowed for the landlord to make the repair?
5. If your landlord does not make the repair in time, what remedies might you want to seek, and which of these should you list as potential next steps in your notice to your landlord?
A. First Notice
First, make sure that at the time you provide this notice to the landlord, you are current on your rent. If you are not, the landlord does not have to make the repair.⁹
Second, provide notice to the landlord of the specified condition you believe the landlord is legally required to repair as discussed above. If the lease is in writing and requires written notice, then the notice of repair must be in writing. However, it is recommended to always request repairs in writing to make sure that you can prove that the request was made, that it was delivered to the landlord, and when it was delivered to the landlord. You should keep a copy of this letter as well. Sending this notice via certified mail, return receipt requested, by registered mail, or by another form of mail that allows tracking of delivery can prevent you from having to send the second notice discussed below. However, you may still need to send the second notice if the remedy you seek requires the notice to include specific elements not included in the first notice.¹⁰ You can send the notices to your landlord or their management agent, leasing agent, or residential manager.¹¹
B. Allowing the Landlord Reasonable Time to Repair the Condition
The landlord is considered to have received the notice of repair when the landlord or the landlord’s agent or employee has actually received the notice or when the United States Postal Service has attempted to deliver the notice to the landlord.¹²
Under Texas law, a landlord has a “reasonable” amount of time from when they receive the first notice to make the repair.¹³ A “reasonable” time is usually considered to be seven days, but that time may be extended depending on the date the landlord received the notice, the problem’s severity, and the availability of materials, labor, and utilities needed to make the repair.¹⁴
C. Second Notice (If Necessary)
If the landlord does not repair the condition within a reasonable time, a second notice is required unless the first notice was in writing and sent using a trackable method (e.g., certified mail, return receipt requested).¹⁵ Under this law, a managing agent, leasing agent, or resident manager can receive notices and other communications on behalf of the landlord.¹⁶ You can send the notices to your landlord or their management agent, leasing agent, or residential manager.¹⁷ Remember, you must be current on your rent when you provide this notice or the landlord does not have to make this repair.¹⁸
This notice should state that it is the second notice, reference the date of the first notice, explain what needs to be repaired, and state what options you might choose should the landlord fail to make the repair within a reasonable time. Such options include termination of the lease, having the condition repaired and deducting the amount of the repair from your rent, or filing a lawsuit asking the court to make the landlord make the repairs and/or pay damages. NOTE: The remedies mentioned in this paragraph are only available in limited circumstances as described in section IV below.¹⁹
It is recommended to also include a request for an explanation of the delay. If the tenant makes such a request and the landlord fails to respond in writing within five days, a court will require the landlord—instead of the tenant—to prove that repairs were made in a reasonable time.²⁰
You must now allow your landlord a reasonable time after receipt of the second notice to make the repairs.
IV. What remedies can a tenant seek against a landlord who refused to make a repair as required under the law?
As a general rule, if the landlord has failed to repair the condition in accordance with the first and if necessary, the second notice, you may: (1) terminate the lease; (2) have the condition repaired or remedied, deducting the cost of the repair from the tenant’s rent without involving the court; and (3) obtain certain judicial remedies²¹ such as an order requiring the repairs to be completed and compensation for losses. If you elect to terminate the lease you are not entitled to remedies for repair and deduction or the other judicial remedies mentioned above.
When seeking a remedy, ask yourself:
1. Did you state in your notice to the landlord that if the landlord failed to repair the condition, you would seek this particular remedy?
2. Did you otherwise meet the requirements to place yourself in a good legal position to seek this particular remedy without opening yourself to liability as the tenant?
A. Terminating the Lease
If the landlord has failed to repair the condition in accordance with the first and, if necessary, the second notice, you may terminate the lease.²² In doing so, you are “entitled to a pro rata refund from the date of termination or the date you move out, whichever is later.”²³ You are also “entitled to deduct your security deposit from the rent without filing a lawsuit, or instead obtain a refund of the security deposit according to law.”²⁴
However, if you pursue termination of the lease, you are not entitled to the other remedies discussed below.²⁵
B. The Remedy of Tenant’s Repair and Deduction of Costs from Rent
Before seeking these remedies, ask yourself these questions:
1. Have you taken all of the proper steps necessary under the law to be able to refuse to pay some or all of your rent? Remember that failure to pay rent may not only prevent the landlord from being required to make the repairs, but it may subject you to monetary detriment and perhaps eviction, as discussed below.
2. Is the condition in need of repair one of the specific bases for this remedy as explained below?
3. Has the landlord failed to complete the repair and has the deadline now expired?
If the landlord fails to make repairs after receiving proper notice, you may have the condition repaired or remedied and you may deduct the cost from your next rent payment.²⁶
The repair costs cannot exceed one month’s rent or $500, whichever is greater.²⁷ For example, if your monthly rent is $800, you could deduct up to $800 for repairs.²⁸ If your rent is $400, you could still deduct up to $500. The tenant can make multiple repairs in a month, but the total deductions cannot exceed the monthly limit.²⁹
It is important to be cautious of what is considered the reasonable time period for a landlord to repair for each of the specific circumstances. The times range from immediate repair upon proper notice to the landlord, to the presumptive seven days.³⁰
The repair and deduct remedy is only available in specific circumstances:
1. The landlord has not fixed raw sewage backups or flooding caused by broken pipes or natural drainage inside the tenant’s dwelling.
2. The landlord has expressly or impliedly agreed in the lease to furnish potable water to the tenant’s dwelling and the water service to the dwelling has totally ceased.
3. The landlord agreed, either explicitly or implicitly, to provide heating or cooling equipment, but it is not working properly, and a local official has confirmed in writing that this issue poses a health or safety risk to an ordinary tenant.
4. The landlord has been notified in writing by the appropriate official that the condition materially affects the health or safety of an ordinary tenant.³¹
You must hire professional repair services.³² You cannot do the work yourself nor can you hire family members.³³ Check your lease carefully as there are some limited ways in which a landlord and tenant may mutually agree to repair, at the landlord’s expense, certain conditions. You must furnish the landlord, along with payment of the balance of the rent, a copy of the repair bill and the receipt for its payment.³⁴ It is strongly advised that you do not enter a contract requiring you to pay for repair services prior to the expiration of the landlord’s deadline to repair. The landlord might surprise you and make the repair just before the deadline, leaving you contractually required to pay for the contract you entered on your own.³⁵
C. Judicial Remedies Available to Tenants
If the landlord has failed to repair the condition in accordance with the first and, if necessary, the second notice, you may seek the following judicial remedies:
1. A court order directing the landlord to take reasonable action to repair or remedy the condition;
2. A court order reducing your rent, starting from when the first repair notice was given, based on how much the condition has lowered the value of the property, until the problem is fixed;
3. A judgment against the landlord for a fine of one month's rent plus $500;
4. A monetary judgment against the landlord for your actual loss; and
5. Court costs and attorney's fees, excluding any attorney's fees for personal injury claims.³⁶
V. Conclusion
As mentioned, this article describes some of the legal rights between a tenant and a landlord with regard to the landlord’s duty to repair. This article is meant to help you prepare for a conversation with your attorney about your rights and provide you with an overview of the steps a tenant must take in order to seek particular remedies both with and without court intervention.
Through this article, you have learned to first look to your lease and to the law to determine what conditions a landlord is required to repair or remedy. If the repair sought is one for which the landlord is responsible, there are very specific notice requirements under the law, and possibly under the lease language. Be sure that your notice(s) comply with the law and the lease and recognize that requirements may change depending on the remedy sought.
You may find that your situation differs factually from those discussed in this article. Examples of other common situations include, but are not limited to: (1) the total destruction of the leased premises for reasons other than the fault of the tenant,³⁷ (2) the premises become unlivable due to natural disaster,³⁸ or (3) the landlord’s failure to provide security devices such as adequate locks on external doors.³⁹ These situations are handled differently under the law.
Once you decide to seek repairs, the law provides protection to tenants against retaliation by the landlord where the tenant acts in good faith under the lease or the law.⁴⁰ However, these protections against retaliation are not guaranteed. The tenant must be able to prove the retaliatory basis for the eviction, and the landlord may try to prove the eviction was for otherwise lawful reasons.⁴¹ For example, if you refuse to pay your rent in full and have not taken the proper legal steps to make such a refusal, the landlord will argue that you violated the lease and may successfully seek to evict you.
The law changes frequently, and the Texas Property Code is no exception to this trend. In fact, at the time of the writing of this article, new language has been proposed to the Texas Legislature for the 2025 term which might alter the rights and processes provided in this article.⁴² For this reason, and all the reasons mentioned above, it is important to speak with an attorney to make sure that you understand your rights at the time your particular matter arises.
Suggested Citation: Kevin Robinowich, A Guide to Your Repair Rights as a Residential Tenant, ACCESSIBLE LAW, Fall 2024, at 1.
Sources:
[1] Moreno v. Brittany Square Assocs., L.P., 899 S.W.2d 261, 263 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (“The purpose of Subchapter B, and its predecessor, art. 5236f, is to set forth the procedures tenants and landlords are to follow regarding conditions that need to be repaired on leased premises. Subchapter B imposes duties on both landlords and tenants and protects both from retaliatory acts of the other arising from the duty to repair.”).
[2] Tex. Prop. Code Ann. § 92.006.
[3] Id. § 92.052(a)(1)–(2).
[4] Id. § 92.052(a)(3)(A); Materially means the condition would have a significant impact on the tenant’s health or safety. See Material, Black’s Law Dictionary (12th ed. 2024).
[5] Tex. Prop. Code Ann. § 92.052(a)(3)(B).
[6] Id. § 92.052(b).
[7] Id. § 92.052(c)(1).
[8] Id. § 92.052(c)(2).
[9] Id. § 92.056(b)(6).
[10] Id. § 92.056(b)(3).
[11] Id. § 92.060.
[12] Id. § 92.056(c).
[13] Id. § 92.056(d).
[14] Id.
[15] Id. § 92.056(b)(3).
[16] Id. § 92.060.
[17] Id.
[18] Id. § 92.056(b)(6).
[19] Id. § 92.0561(d)(2).
[20] Id. § 92.053(b).
[21] A judicial remedy is a court-ordered solution given to someone who wins a civil lawsuit. The purpose is to address the harm they experienced because of another person’s wrongful action or failure to act. See Legal Information Institute, Remedy, Cornell Legal Info. Inst., https://www.law.cornell.edu/wex/remedy (last visited Dec. 27, 2024).
[22] Tex. Prop. Code Ann. § 92.056(e).
[23] Id. § 92.056(f)(1).
[24] Id. § 92.056(f)(2).
[25] Id. § 92.056(f)(3).
[26] Id. § 92.0561(a).
[27] Id. § 92.0561(b).
[28] For tenants with subsidized rent, the fair market rent determines the “one month’s rent” limit. Id.
[29] Id. § 92.0561(c).
[30] Id. § 92.0561(e).
[31] Id. § 92.0561(d)(3).
[32] Id. § 92.0561(f).
[33] Id.
[34] Id. § 92.0561(j).
[35] See id. § 92.0562(a)–(f) (discussing a landlord’s right to delay repairs by delivering a good-faith affidavit summarizing diligent efforts to complete the repairs and continuing such efforts).
[36] Id. § 92.0563.
[37] Id. § 92.054.
[38] Id. § 92.062.
[39] Id. § 92.153.
[40] Id. § 92.331.
[41] Id.
[42] See Tex. H.B. 1100, 89th Leg., R.S. (2024) (proposing tenant’s notice may be provided through an online apartment portal if it is maintained by the landlord and rent is paid through the portal).
