A landlord must make a diligent effort to repair or remedy a condition if:
1) The tenant specifies the condition in a written notice to the person or place where rent is normally paid;
2) The tenant is not delinquent in the payment of rent; and
3) The condition materially affects the physical health or safety of an ordinary tenant; or
4) Arises from the landlord's failure to provide and maintain in good operation a device to provide hot water.
However, if the condition was caused by normal wear and tear, the landlord does not have a duty to repair or remedy the condition if it was caused by the tenant, an occupant in tenant's dwelling, a member of tenant's family, or guest of tenant. The landlord is also not required to furnish utilities if utilities are not reasonably available, or to furnish security guards.
Send your written notice by both regular mail, and by certified mail, return receipt requested.
Landlord's Time to Repair or Remedy
If the tenant provided the adequate written notice to the landlord to repair or remedy, the landlord is allowed a reasonable time to repair or remedy. Under the statute, a reasonable period of time is presumed to be seven (7) days from the landlord's receipt of the written notice to repair or remedy. That presumption can be rebutted, and the reasonable time period extended, if on the date the landlord receives tenant's notice, the severity and nature of the condition, and/or the reasonable availability of materials and labor and of utilities from a utility provider justify such extension.
A landlord is in default if:
1) The tenant gave the landlord the requisite written notice to repair or remedy by certified mail, return receipt requested;
2) The condition materially affects the physical health or safety of an ordinary tenant;
3) The landlord had a reasonable time to repair or remedy the condition after receiving the notice to repair or remedy;
4) The landlord did not make a diligent effort to repair or remedy the condition after receiving the notice to repair or remedy; and
5) The tenant was not delinquent in payment of rent at the time the notice to repair or remedy was given.
Please note, if the original written notice to repair or remedy was not sent by certified mail, return receipt requested, the tenant must give a subsequent written notice to the landlord and the landlord must be given an additional reasonable time to repair or remedy before the landlord is considered to be in default.
Please note that the condition complained of must materially affect the physical health or safety of an ordinary tenant. This means that the condition must be one that would affect an ordinary tenant, not necessarily the specific tenant making the complaint. For example, if there were conditions that clearly affected personal safety, the fact that the tenant complaining is a police officer capable of protecting himself, cannot be considered.
If a landlord is in default of its duty to repair or remedy, the tenant may:
1) Terminate the lease;
2) Have the condition repaired or remedied and the cost of such repair or remedy deducted from its monthly rent. However, a tenant's ability to self repair or remedy is limited to only a few circumstances and if the lease agreement does not waive the tenant's right to do so, which most lease agreements do. Please see Texas Property Code sections 92.0561 and 92.0562 for further information; or
3) Take judicial action, which such actions being more specified under Texas Property Code section 92.0563.
Tenant's Choice to Terminate the Lease
If a tenant elects to terminate the lease:
1) The tenant is entitled to a pro rata refund of rent from the date of termination or the date the tenant moves out, whichever is later;
2) The tenant is entitled to deduct the tenant's security deposit from the tenant's rent or obtain a refund of the security deposit as normally allowed by law; and
3) The tenant is not entitled to the other repair and deduct remedies or judicial remedies provided for in Tenant's Remedies above.
The tenant has the burden of proof in enforcing their rights under the statutory process if a judicial action is initiated to enforce the lease agreement by the tenant or by the landlord. However, that burden shifts to the landlord if the tenant makes a written demand for an explanation of landlord's delay in performing their duty to repair or remedy and the landlord fails to provide a written explanation within five (5) days of receiving tenant's written demand for an explanation. This burden shifting only occurs after the initial written notice for the landlord to repair or remedy and a reasonable period of time to do so has elapsed.
Consequences of Tenant's Election of Remedies
If a tenant elects to terminate the lease, or elects any other allowed remedies, the tenant is liable to the landlord for breach of lease if the tenant did not follow the statutory process. This includes personal liability for future unpaid rent, landlord's costs to relet the premises, landlord's costs in dealing with the repair and remedy notices, landlord's attorney fees, and any other landlord damages provided in the lease or by law. Also, a landlord can report a defaulting tenant to the national credit bureaus, which may affect a tenant's credit rating for many years.
Thus, it is always advised for a tenant who wants to begin the process to terminate their lease or to exercise any other remedy to contact and consult with a real estate or landlord/tenant attorney before taking any action. Additionally, a lease agreement may have additional rights, remedies, and obligations not provided herein. PLEASE CONSULT AN ATTORNEY BEFORE TAKING ANY ACTION.
Additional resources provided by the author
The statutory process outlined in this guide is more fully detailed and provided in the Texas Property Code, sections 92.052, 92.053, 92.056, 92.0561, 92.0562, 92.0563, 92.058, 92.060, and 92.061.
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