Texas Tenant Advisor

• Home
  • Rights
    • Application deposit
    • Discrimination
    • Eviction
    • House rules
    • Landlord took property
    • Late fees
    • Lease
    • Locked out
    • Locks and security
    • Mobile homes
    • Privacy
    • Rent
    • Repairs
      • - Step 2
      • - Step 3
      • - Step 4
      • - Step 5
      • - Options
      • --Statutes
      • ---Forms
    • Retaliation
    • Roommates
    • Security deposit
    • Smoke detectors
    • Subleasing
    • Termination
    • Utilities
    • Who owns the property
  • Fight back
  • Prevention

The Texas Tenant Advisor is intended to provide general information regarding Texas residential tenancies only.

Unique facts can render some statements inapplicable to a given situation.

We attempt to provide current information; nonetheless, you are urged to consult an attorney for legal advice and assistance.

This web site is a public service of the Texas Low Income Housing Information Service.

Option #1: Terminate the lease.

Pursuant to the repair statutes you can (in theory) 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 Tex. Prop. Code § 92.056(f)), if you properly terminate your lease agreement you are:

(1) entitled to a pro rata 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. Landlords rarely think any condition materially affects health or safety, deny getting the notice(s), or they claim they did not have enough time and that they were diligently attempting to repair the problem. Thus, a typical landlord considers the termination by the tenant to be a premature termination of the lease and then keeps the security deposit, claims the tenant owes rent under the lease, and places negative information on the tenant's credit report. A landlord might be willing to negotiate but it usually involves the tenant giving the landlord some money it does not deserve.

Option #2: Suing is often the best solution.

You can sue the landlord in justice court for damages, or county or district court for a repair order and damages. You may think this too aggressive a move, but consider this:

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, but only if you filed the suit in county or district court;
(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 (for example, the cost of a hotel room you paid for because you could not stay in your rental unit), court costs and attorney's fees (if you choose to have an attorney represent you).

County and district court can cost more initially for filing the case, and be more formal and take longer to get to trial, but you can request the court to enter a temporary injunction order that will require the landlord to immediately repair the problem while waiting for the final trial to determine your damage award. Justice court is cheaper, easier for nonlawyers and will usually allow you to go to trial much sooner (but you technically cannot get an order requiring the repairs).

If you want to file suit, check out our form lawsuit, and our tips on how to sue your landlord. There is little risk with this option. During the lawsuit you must keep paying your rent and follow all the other terms of the lease (including the house rules). Just smile and wait for the landlord to make you an offer or just look forward to seeing it in court. Often management companies are running the show 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? So long as you filed the suit in good faith, you stand to lose your court costs you already paid and some of your time. (If you file a suit that you know is a bad suit, then you could also be responsible for the landlord's attorney fees should the landlord have to hire an attorney.) 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. (This is why you must be caught up on your rent -- a landlord can always evict a tenant if they are behind on rent.)

Too much trouble you say? Go to Option #5 or #6.

Option #3: Repair and deduct.

Okay, you thought we were saving this option because it sounds so good. True it sounds good. It actually is bad. 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 (specifically Tex. Prop. Code § 92.0561) 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, and most importantly, in reality the landlord never believes the tenant has properly used this remedy and does 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 listed in the yellow or business pages of the telephone directory or in the classified advertising section of the local newspaper. (Do not use a friend or relative.)

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. See Tex. Prop. Code § 92.0562.

This is only a summary of the prerequisites of this alleged option. You should at least read the repair statutes carefully and probably consult with an attorney before using this "remedy."

Option #4: Call local code inspector.

Some cities have very few code inspectors so feel lucky if you can 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. A landlord might retaliate for calling a code inspector. Having a copy of your letter won't stop that, but it will make it obvious if you complain one day and the next day the landlord is taking adverse action.