Landlord and Tenant Rights in General

Tenant Rights in Texas©
by Professor Richard M. Alderman
The People's Lawyer  
(Revised January 1, 2008) 

Historically, landlord-tenant law has favored the landlord. But recently, there have been some changes, and while tenants may not have all the rights they would like, they are not without recourse. The following information is designed to help you understand your basic legal rights so that landlord-tenant disputes can be more promptly and fairly resolved. The most important part of any landlord-tenant relationship is the lease. Read the lease carefully before signing. If you don’t like something in the lease, don’t sign until the landlord agrees to remove it. Here is some general information about the landlord-tenant relationship.

I. RENTING AN APARTMENT

A. Must you have a formal, written lease in order to rent an apartment?

A lease agreement may be oral or written and may be as formal or as informal as the parties want to make it. An oral lease is valid as long as it is for one year or less. Without a written lease, the law implies a lease for at least as long as the period between rent payments. Thus, if you pay rent every month, you have an implied month-to-month lease and you and your landlord must give at least a month’s notice prior to terminating the lease. On the other hand, a written lease is a good way to protect both the landlord and tenant by spelling out the relative duties of each in the event that unforeseen circumstances occur.

B. May landlords refuse to rent to families with children?

The Fair Housing Act makes it illegal to discriminate against families with children. The landlord must rent to anyone, regardless of whether they are married, single, or have children. The only restrictions that may be placed are those that apply to everyone. For example, the number of occupants per unit may be limited. The major exception to this law is complexes intended for seniors. If a complex has 80% or more units occupied by at least one person over age 55, it is not required to accept children. On a related note, just because apartments cannot discriminate against families with children does not mean they cannot insist that the children keep quiet.

C. May landlords refuse to rent to the handicapped?

The Fair Housing Act also prohibits discrimination against handicapped persons. "Handicapped" is defined as a physical or mental impairment which substantially limits one or more of such person’s life activities. You can enforce this law privately, with the assistance of an attorney, or you can contact the Department of Housing and Urban Development.

D. Can I sublease?
You have no right to sublease unless your lease explicitly gives you the right to do so. However, even if your lease allows you this option, you must follow the specific provisions of the lease agreement with regard to the subleasing. If you have no legal right to sublease, you must get your landlord’s permission. Even if you do sublease, you are still responsible for the payment of rent if the sub-tenant doesn’t pay.

E. Can I get my application fee or deposit back if I am denied the apartment?

The law in this area changed for leases entered into after January 1, 2008.

Application for leases or renewals entered into before January 1, 2008:
If your application is rejected by the landlord, you are entitled to the full amount of both your application fee and deposit. A landlord who in bad faith fails to refund an application fee or deposit may be liable for an amount equal to the sum of $100, three times the amount of the application deposit, and the applicant’s reasonable attorney’s fees in a suit to recover the deposit.

Application for leases or renewals entered into after January 1, 2008:
After this date, the law differentiates between an application fee and an application deposit. An application fee is defined as a nonrefundable sum of money given to a landlord to offset the costs of screening an applicant. An application deposit is a sum of money that is refundable if the applicant is rejected as a tenant.

At the time an applicant is presented with a rental application, the landlord must make the tenant selection criteria and the reasons that the application may be denied available to the tenant. This information may be included in the rental application if the notice is underlined or in bold print. The selection criteria may include: criminal history, previous rental history, current income, credit history, or failure to provide complete and accurate information. If a landlord does not provide an applicant with the tenant selection criteria and rejects the applicant, the landlord must refund both the application fee and application deposit.

A landlord who in bad faith fails to refund an application deposit may be liable for an amount equal to the sum of $100, three times the amount of the application deposit, and the applicant’s reasonable attorney’s fees in a suit to recover the deposit.

 II. LIVING IN AN APARTMENT
A. Can I force my landlord to fix my apartment?

1. Minor inconveniences.

Unless your lease explicitly says so, your landlord is under no general obligation to repair the apartment. Small inconveniences and minor repairs are not legally the responsibility of the landlord unless he has agreed to make such repairs. The agreement to make repairs need not be in the lease itself. If your landlord has otherwise agreed to make such repairs, he may be obligated to make these repairs just as if the agreement was a part of the lease.

If your lease does require the landlord to make the repairs in question, you should contact him in writing and request that these repairs be made. If the repairs are not made, you can have the repairs made yourself and recover the cost in small claims court. You cannot deduct the amount from your rent, however, unless the landlord agrees.

2. Major problems.

Regardless of the terms of the lease, there is a law which requires the landlord to repair conditions which materially affect a tenant’s physical health or safety, and to provide hot water to a tenant. Texas law requires the landlord to make reasonable efforts to repair any condition which materially affects the health or safety of an ordinary tenant and to provide hot water to the tenant. The landlord’s failure to comply with this law may entitle a tenant to perform the repair and deduct the costs from rent, a court order requiring the landlord to make the repairs, a court order reducing the rent, and a penalty of one month’s rent plus $500. Alternatively, the tenant may terminate the lease, move out, and obtain a penalty of one month’s rent plus $500.

As mentioned above a remaining tenant may have conditions repaired and deduct the cost from the rent. This may be done only if:

1) the landlord has failed to remedy the backup or overflow or raw sewage inside the tenant’s dwelling or the flooding from broken pipes or natural drainage inside the 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 has expressly or impliedly agreed in the lease to furnish heating or cooling equipment; the equipment is producing inadequate heat or cooled air; and the landlord has been notified in writing by the appropriate local housing, building, or health official or other official having jurisdiction, that the lack of heat or cooling materially affects the health or safety of an ordinary tenant; or

4) the landlord has been notified in writing by the appropriate local housing, building, or health official or other official having jurisdiction that the condition materially affects the health or safety of an ordinary tenant.

It is worth noting that under the law, even if you have a claim against your landlord for not maintaining your apartment, you are not excused from paying rent until you take the necessary steps. If you stop paying rent, your landlord could have you evicted.

Here is what you must do to exercise your rights:
1) You must give the landlord written notice. Explain the problem, and tell the landlord that it materially affects your health or safety. You cannot be delinquent in the payment of rent at the time notice is given. The notice should also state that unless the condition is repaired you may terminate the lease, have the condition repaired and deduct the costs of repair from your next rent payment, or bring a civil action for a court order and damages. You should send this notice via certified mail, return-receipt-requested.

2) The landlord has a reasonable time to repair the problem. What is reasonable depends on the facts of the situation. A leaking roof for example, is serious, and a few days may be a reasonable time to repair the leak.

3) If your apartment is not repaired within a reasonable time and you sent the repair notice by certified mail, your landlord is liable. If you gave the notice any other way, you must give the landlord a written second notice and wait another reasonable period of time before your landlord is liable.

If the landlord is liable for not making the repairs, you have the right to: 
(1) have the condition repaired and deduct the costs from your next rent payment;
(2) sue and force a rent reduction;
(3) sue and get a court order requiring the landlord to make the repairs; and
(4) sue to recover damages of one month’s rent plus $500.
or

1. terminate the lease, move out; and
2. sue to recover damages of one month’s rent plus $500.

If you have to hire an attorney and you win the case, the landlord must pay your attorney’s fees.

B. Does my landlord have to provide security?

The only security required by law is locks on doors and windows, lights in common areas, and fences and latches at pools. Generally, every exterior door must have both a keyed and keyless bolting device as well as a door view, and all windows and sliding glass doors must have a latch, pin lock, or security bar. The law requires these devices to be installed at the landlord’s expense. The landlord is responsible for repairs or replacement of these devices during the term of the lease. The tenant must notify the landlord of the need for repair or replacement, and the landlord has a reasonable time to comply, which is usually considered to be one week. If the landlord does not provide the required amount of security, the tenant may: (1) install the security device and deduct the costs from the next month’s rent; (2) terminate the lease if the landlord does not comply within three days (the time is extended to seven days if the lease has a provision stating the tenant’s security device rights) after being given a written request by the tenant; or (3) file suit against the landlord and try to obtain a judgment for a court order directing the landlord to install a security device, and recover actual damages, court costs, and possibly attorney’s fees.

There are two instances in which a landlord must provide security measures in addition to those listed above. First, a landlord is responsible if he acts negligently. Negligence generally means not acting as a reasonable person would. For example, if your landlord is aware that there have been shady characters loitering around the complex and fails to provide additional security measures or report it to the police, he may be acting negligently and, as a result, be liable for civil damages. Second, the landlord may have incurred an obligation to provide security under the Deceptive Trade Practices Act if he or she made any false statements about the state of the complex’s security. This law would allow you to recover damages if you were injured as a result of the landlord’s failure to provide the promised security.

C. What if my landlord misrepresents the condition of the apartment or what he is going to do?
The Texas Deceptive Trade Practices Act applies to all lease agreements. The DTPA makes it unlawful to misrepresent the qualities of something. If the property leased is not as the landlord represented it to be, he has violated the law. For example, telling a tenant that her carpet will be replaced when it will not is a misrepresentation. The DTPA provides for up to three times your damages (tenant’s cost in repairing the carpet) plus any court costs and attorney’s fees involved.

D. May my landlord enter my apartment and take my property if I don’t pay rent?

Maybe. He must first follow all of the proper legal steps needed to assert a landlord’s lien. To assert this landlord’s lien certain requirements must be met. The landlord’s right to assert a lien must be underlined or printed in conspicuous bold print in your lease or agreement. If the lease does not contain such a provision, your landlord has no right to take your property and doing so would be, in effect, theft, entitling you to substantial damages. If the lease contains such a provision, your landlord may peacefully enter your apartment and take your property until you pay the rent. If you don’t pay, he may even sell your property to pay the rent.
Certain types of property are excluded from a landlord’s lien, and if the landlord takes them it is a violation of the law. These are:
1) wearing apparel;
2) tools, apparatus, and books of a trade or profession;
3) school books;
4) a family library;
5) family portraits and pictures;
6) one couch, two living room chairs, and a dining table and chairs;
7) beds and bedding;
8) kitchen furniture and utensils;
9) food and foodstuffs;
10) medicine and medical supplies;
11) one automobile and one truck;
12) agricultural implements;
13) children’s toys not commonly used by adult;
14) goods that the landlord or the landlord’s agent knows are owned by a person other than the tenant or an occupant;                                                                                                          15) goods that the landlord or the landlord’s agent knows are subject to a recorded chattel mortgage or financing agreement.
The landlord must leave you a note explaining what he took and how you may get it back.

E. May my landlord lock me out?

If your landlord acts according to state law, he has the right to change the locks on your door but he must give you notice both before doing so and at the time of the lock change. The notice must inform you of how you can get a new key twenty-four hours a day.  The new key must be given to you. You may not be locked out and denied access to your apartment.

For leases entered into after January 1, 2008, a landlord may not change the lock on a tenant’s door unless the lease agreement contains an underlined or bold provision authorizing the landlord to change the door lock if the tenant is delinquent with rent.

F. Are landlords required to install smoke detectors?

Yes. Before you move in, the landlord must install at least one smoke detector on the ceiling or wall of the apartment. The required number and placement depends on the size and design of the unit. At the beginning of the lease, the landlord must test the smoke detector to ensure that it’s in good working condition. But after that, it’s up to the tenant to give the landlord notice of a malfunction or request that the landlord come inspect or repair it. The landlord must then repair or replace the smoke detector within a reasonable amount of time, usually one week. If the smoke detector needs new batteries, however, the tenant must supply them.

If a landlord fails to repair a smoke detector after being properly notified, a tenant may recover: (1) damages suffered due to the violation; (2) a civil penalty of one month’s rent plus $100; (3) court costs; and (4) attorney’s fees. In addition, the tenant may terminate the lease.

G. What happens if I want to break my lease?
If for some reason you decide to move out before your lease is up, your landlord basically has two options: (1) accept your surrender of the apartment and not hold you liable for any further rent; or (2) try to get a replacement tenant, and subsequently recover damages incurred as a result of having to find another tenant and for rent you owe until a new tenant is located. A landlord has a duty to mitigate damages, i.e. use reasonable efforts to find a replacement tenant.

III. ENDING A LEASE
A. May my landlord simply throw me out if he or she wishes?

A landlord who "throws out" a tenant may be liable for both civil and criminal penalties. Before you are evicted you will receive notice of the legal proceedings and opportunity to be heard in court. A tenant may only be evicted after the landlord has: 1) given the tenant a notice to vacate; 2) commenced legal proceedings against the tenant; 3) provided the tenant an opportunity to appear in court; 4) acquired a court order requiring the tenant to leave; and 5) obtained the services of a constable or sheriff to carry out the eviction.

B. What are the legal grounds for eviction?

Tenants may be evicted for non-payment of rent, lease violations, if the lease has expired, or if no lease exists.

C. How can I get out of my lease agreement?

A lease is a binding legal agreement and you may only terminate a lease early for reasons which are permitted by the lease itself. To determine under what conditions you may terminate the lease, look at the language. If the lease says you may terminate if you are transferred, then you may do so. There are, however, two extenuating circumstances (domestic violence and military service) under which you may terminate a lease save for those expressly included in the lease itself. If you break a lease agreement and terminate a lease early, you may be responsible for all damages which the landlord incurs; including rent for the period that he or she was unable to lease the apartment to someone else. The moral of this story is that if you think you may have to terminate your lease, make sure there is a clause permitting you to do so in the lease before you sign it.

D. How can I be sure that I will get my security deposit back?

If a landlord wrongfully keeps your security deposit, you may be entitled to three times your deposit, plus $100 and any court costs or attorney’s fees you incur. The Texas Security Deposit Law requires a landlord to return a security deposit within 30 days after the tenant moves out or give a written accounting as to why the deposit (or part thereof) is being kept. It is important to remember that you are only entitled to have your deposit returned to you if you complied with your lease, left a forwarding address, and left the apartment in good condition. For example, if you move before your lease is up, you may not be entitled to the return of the deposit. A landlord can also deduct the costs of cleaning the apartment if you left it damaged. No damages, however, may be deducted for ordinary wear and tear. In most cases a simple letter to your landlord will get your deposit returned.

E. Can I tell my landlord to use my security deposit as the last month’s rent?
You may not withhold payment of any portion of the last month’s rent on grounds that the security deposit is your last month’s rent. If you do, you will be liable to your landlord for three times the amount of the rent and the landlord’s reasonable attorney’s fees in a suit to recover the rent.