A Tenant's Guide to TX Habitability Law

A Tenant's Guide to Habitability Law in Texas

Introduction

A landlord's obligation to make repairs under Texas law most commonly comes from three different sources:

1. The Texas Property Code; 

2. Housing codes adopted by the city you live in; or

3. Promises your landlord made in your lease.

While these sources of landlord obligation can (and often do) overlap, each is its own distinct weapon in the arsenal of tenant rights. They can cover different problems: for example, the Texas Property Code applies only to health and safety issues, but a city's housing code may be broader. And they can offer a tenant different forms of relief: the Property Code sometimes allows the tenant to break his or her lease, but a municipal housing code might not. Thus, understanding which weapon to use and when to use it can be essential to successfully forcing a recalcitrant landlord to make repairs.  

Before going into each, here's an important warning: Unlike some other states, Texas does not allow a tenant to hold back rent when the tenant's landlord fails to make repairs. Refusing to pay rent, even if your landlord hasn't fixed something, will generally backfire on you. Rather than getting repairs, you will probably get evicted. 

Finally, there is one additional source of legal repair obligations that applies in some cases - a landlord who participates in certain public housing programs must comply with the housing standards for those programs.  But such programs and requirements are currently beyond the scope of this article.  If you live in government subsidized housing, you may wish to speak with an attorney for help in understanding any additional laws that may apply.  

The Property Code

Strengths and Weaknesses of the Property Code

Where it applies, Section 92.056 of the Texas Property Code is generally the tenant's strongest weapon in the fight to secure repairs. This is because the Property Code gives the tenant the strongest remedies if the landlord breaches its obligations: the tenant can terminate the lease, or get a court order forcing the landlord to fix things. The tenant can have their rent reduced by court order, can force the landlord to pay them a civil penalty of one month's rent plus five hundred dollars, and can force the landlord to pay for the tenant's attorney. Finally, unlike a housing code, your rights under the Property Code are something you can enforce yourself - if your landlord doesn't do what they're supposed to, you can sue or move out. You don't have to wait for a city official to act.  

But the Property Code also has weaknesses. First, Section 92.056 only applies to conditions that "materially affect the physical health or safety of an ordinary tenant." In other words, it can be hard to use the Property Code to force your landlord to fix something like a broken washing machine. The Property Code also doesn't require the landlord to fix problems that were caused by the tenant, or the tenants guests or family members, unless the problem is the result of normal wear and tear.  

More importantly, the Property Code requires a very specific kind of notice before the landlord has any obligations at all.  The repair sections of the Property Code were written by lobbyists for the apartment industry to be intentionally hard to use and easy to screw up.  If you fail to cross your t's and dot your i's when requesting repairs, your landlord's obligation to make repairs is never "triggered" and your landlord has no obligation under the Property Code to do anything at all.  

Using the Property Code to Get Repairs

Step One: Send a Proper 92.056 Notice Your Landlord

All too often I see tenants who have been asking their landlord to make repairs for months, sometimes in writing, but who have never quite gotten the 92.056 notice quite right.  Their landlord keeps pretending that they'll get around to repairs, and obviously doesn't mention to the tenants that they haven't done the notice right.  So the tenant spends months living in an uninhabitable apartment, thinking they've been asserting their legal rights, and in reality they haven't even started the clock on their landlord's obligation to fix things.  Don't put yourself in that situation - follow the repair statute to the letter, and make sure you've triggered your landlord's obligations correctly.  

So how do you do a 92.056 repair request properly? The best (but not only) way to send a repair request to your landlord involves four steps:

1. Your repair request should be in writing. Here's a form you can use. KEEP A COPY.  

2. Make sure you're current on rent before you send the request.  If you send a repair request while you're behind on rent, it has no effect - even if you catch up on rent later.

3. Send the request by certified mail, return receipt requested. (You can find instructions sending a letter by certified mail here.) KEEP THE RETURN RECEIPT WHEN IT COMES BACK.

4. Send the letter either to the person or the place where you normally pay rent.  

There are other ways to send a repair request, but they're easier to screw up so I don't recommend them. If you've already been asking for repairs but don't know if you've done your notice right, I've put together a flowchart you can use:

As can be seen from the flow chart above, it's almost always better to send a single letter by certified mail.  If you attempt to request repairs without using certified mail, you're subject to several additional requirements: you have to make multiple repair requests, you have a waiting period between requests, and you have to be current on rent at the time of both requests.  Each of those is an opening for your landlord to argue that they actually had no repair obligation at all because you didn't do your repair notices properly.  

Once you've successfully sent a proper 92.056 request, you've done everything you need to do to "turn on" your landlord's legal obligation to make repairs.  That doesn't mean your landlord is automatically violating 92.056 if he or she doesn't make repairs - the problems might not be a health or safety issue or you might have caused them. But if the condition is the kind of thing you can make your landlord fix under the Property Code, you've done everything you need to trigger that obligation.  

Step Two: Organize Your Evidence for the Other 92.056 Elements

For many tenants, sending a 92.056 letter will get the landlord's attention and get them the repairs they need.  If the 92.056 letter worked for you, congratulations!  Mission accomplished. Send another 92.056 letter if the condition in your apartment recurs.  

If your landlord still won't make the repairs, then before you launch off into terminating your lease or filing a lawsuit, you want to make sure you have all the evidence you need of the various elements of your claim.  Once you terminate your lawsuit and move out, or once you've filed suit, it can be too late to collect some kinds of evidence if you don't have them already.  And you should always assume you may need to prove your case in court - even if you don't plan to sue - because your landlord may still try to sue you for rent if you move out.  

As stated above cause of action under 92.056 has four elements: 

1. A condition in the property that materially affects the physical health or safety of an ordinary tenant; which

2. Wasn't caused by the tenant, a guest, or family member (except for normal wear and tear); and

3. Which the tenant asked the landlord to repair in the right way (see section above); and

4. Which the landlord didn't make a diligent effort to repair or remedy.  

Make sure you have evidence of each of those four elements before you take action against your landlord.  

For example, before you move out you want to make sure you have evidence (beyond your own testimony) that the condition in question exists.  If you've been trying to get your landlord to take care of a rat infestation, you want to make sure take pictures of any rat droppings before you move out.  If you've been asking your landlord to fix bad wiring, you want pictures of the wiring. 

Likewise, part of a 92.056 claim is showing your landlord wasn't "diligent" about making repairs.  If your landlord has made some efforts to make repairs, but if those efforts haven't worked and you don't think the landlord was actually diligent, you may want to shore up your case before you file suit or move out.  

One good way to do that is to take advantage of Section 92.053 of the Property Code. Under Section 92.053, if a tenant gives the landlord a written request for an explanation for the delay in repairs, the landlord has five days to provide that explanation.  Otherwise the burden of proof in any court case shifts to them.  Whether your landlord provides a written explanation, you benefit and you've also put your landlord on notice that the problem still exists.  

With respect to some elements of a 92.056 claim, it's hard to give general advice.  For example, proving that the condition in your apartment is the type of condition that "materially affects the physical health or safety of an ordinary tenant" depends heavily on the particular facts of the detail in question.  Asbestos in an apartment might be a health issue, or it might not.  A single cockroach in the apartment probably isn't a health issue, but a severe infestation likely is.  Proving the health and safety aspect of a case is an area where it can be helpful to talk to an attorney, as sometimes expert testimony may be required and special rules of evidence may apply.  

Step Three: Exercise Your 92.056 Remedies

Once you’ve properly sent your 92.056 repair request and you’ve made sure you satisfy the other elements of 92.056, your next step is to employ the remedies granted to you by the Property Code.  A tenant’s remedies under the property code can generally be placed into one of two categories: “judicial” remedies, and “non-judicial” remedies.  

Judicial remedies are remedies you have to file a lawsuit to exercise - they’re “judicial” remedies because they’re granted by a judge.  By contrast, “non-judicial” remedies are rights you can exercise without needing to file a lawsuit.  However, it’s important to remember that even if you only exercise non-judicial remedies, you may still end up in court as your landlord may file a lawsuit against you.  

To a certain extent, you can mix judicial and non-judicial remedies.  For example, you can both move out and sue your landlord for a civil penalty, actual damages, etc.  However, by choosing some non-judicial remedies, you may also lose the right to some judicial remedies.  So it’s important to understand all your options before you choose a remedy. 

Judicial Remedies

A tenant’s judicial remedies under the Property Code are provided by Section 92.0563.  They include:

1. A court order (called an injunction) requiring the landlord to take steps to fix the problem;

2. A court order reducing the tenant’s rent in proportion to the amount that the unrepaired condition decreases the property’s value, running from the date of the first repair request until the condition is repaired;

3. A civil penalty (which gets paid to the tenant) of one month’s rent, plus $500;

4. A judgment for the tenant’s “actual damages”; and

5. A judgment for the tenant’s attorney’s fees.  

The easiest way to explain what all of these remedies do is to give an example.  Let’s say you’ve had a bad rat infestation in your apartment for the last three months, and you sent a valid 92.056 notice two months ago.  Assume your rent was $1,000 a month and that with the rat infestation your apartment was only worth $500 a month:

If you filed suit and won, the first thing the judge could give you is an order to your landlord basically saying “fix that rat infestation.”  If the landlord still refused, he or she might be held in contempt, sent to jail, etc.  Suffice it to say, it would be a serious problem for your landlord to ignore the order.  

The judge could also give you an order reducing your rent to $500 until the landlord fixes the problem.  That means, until the problem is fixed, you would only have to pay $500 a month.  Since your rent would also be retroactively reduced to the date of the first repair request, you would have a credit of $1,000 with your landlord.  You don’t get rent reduced going back three months (even though the rats have been there that long) because the reduction runs from the date of your first repair request (which was two months ago in this example).  

The judge could also give you a civil penalty of one month’s rent plus $500, meaning your landlord would have to pay you $1,500.  

The judge could also give you judgment for your “actual damages.”  In repair cases, actual damages are most commonly the difference between what the house would have been worth if it had been repaired properly and what the house was actually worth in its unrepaired condition.  In our example, that’s probably $500.  Since the landlord hasn’t fixed the problem for two months after you asked for repairs, that would be an additional $1,000 your landlord had to pay you.  But if you also had to move out because your landlord wouldn’t make repairs, you might also get money for moving expenses, missed work, the difference in rent between your new home and your old one, etc.  One thing to remember is that you can’t get compensated for the same damages twice, so you can’t get both a retroactive rent reduction and an award of money for decreased value.  

Bear in mind, if you sue your landlord, you’ll have to prove the amount of your actual damages in order to recover them (for example, you’ll have to prove the difference between the value of the unrepaired apartment vs the value of the apartment if it had been repaired).  The specific ways this can be done are beyond the scope of this guide, but this an area where talking to an attorney can help.  

Finally, the judge could award you money for attorneys fees if you were represented by an attorney.  How this part works depends on the specifics of your contract with your attorney, but the basic purpose of this provision is that your landlord should have to pay for you to be represented by an attorney since the landlord didn’t do what they were supposed to do.  At trial, if you win, your attorney will testify to the reasonable and necessary fees for representing you, and the landlord will be required to pay what the court determines a reasonable fee is.  

Non-Judicial Remedies

A tenant’s non-judicial remedies are provided by Section 92.056(e)-(f) and Section 92.0561-2 of the Texas Property Code.  The remedies provided by Section 92.056(e)-(f), include the following:

The tenant can terminate their lease early and move out;

If the tenant has paid rent beyond the date when they move out, the tenant is entitled to a refund of rent.  

If the tenant hasn’t paid rent all the way through the time they move out, the tenant is entitled to deduct their security deposit from rent.  

Section 92.0561 theoretically lets a tenant fix a problem themselves and deduct the cost of the repairs from rent - in certain contexts. However, using Section 92.0561 is almost never a good idea, and I never recommend it for a few important reasons. Section 92.0561 is very complex and easy to screw up.  If you do screw it up, then now you haven’t paid rent, you will likely get evicted, and you’ve just paid out of pocket for work to be done on your landlord’s property that you won’t get reimbursed for.  In other words, screwing up 92.0561 puts you in the worst of all possible worlds - you’ve wasted your own money, still owe your landlord money, and you likely don’t have a good defense to an eviction suit.  

Bear in mind, if you elect to terminate your lease or make repairs yourself under 92.0561, you can’t get a court order telling your landlord to make repairs or a rent reduction order from the court.  This makes sense if you think about it: if you’ve moved out, you have no continuing legal interest in making your landlord do something to the property.  And since you aren’t paying rent anymore so don’t need an order reducing rent.  The same logic applies if you’ve repaired the issue yourself under 92.0561.  

Housing Codes Repair Obligations

In addition to the Property Code, tenants can sometimes turn to their city’s housing code in order to obtain repairs.  However, it’s important to understand the strengths and weaknesses of this approach before proceeding.  

Housing Code Strengths and Weaknesses

Every city has a different housing code, and therefore the repairs a landlord is required to make under a housing code can vary from city to city.  If you don’t live in a city, there may be no applicable housing code at all.  

Housing codes differ from the Property Code in several key respects.  First, unlike the Property Code, housing codes will often require landlords to meet a standard of maintenance that goes beyond issues immediately affecting a tenant’s physical health and safety.  Thus, the housing code may require repairs where the Property Code does not.  It can also work the other way around - there may be a health or safety issue in your home that’s not covered by a housing code.  

Another key difference is that the housing code generally cannot be directly enforce by the tenant.  In this respect, housing codes can be like laws against speeding.  It may be illegal for your landlord not to fix something, but only the city has the right to enforce that law.  If the city doesn’t - either because they’re too busy, or the city official just disagrees with you about whether there’s a problem - you may not have the right to enforce the code yourself. (One exception to this is that sometimes landlords will promise in their lease to comply with the applicable housing code, in which case you may be able to enforce the code through the lease.)

A third key difference is that housing codes generally don’t require the same sorts of tenant notices that the Property Code requires.  Thus, while the Property Code only requires the landlord to fix things in response to a proper request, a housing code may require a landlord to meet a given standard of maintenance even without receiving a repair request from the tenant.  

Using the Housing Code to Get Repairs

Because housing codes are enforce by the city and not by tenants, it can sometimes be enough to call your city’s code compliance department and lodge a complaint. However, as noted above, there's not really a way to force the city to take any action on your complaint. As explored in some additional depth in the section below, some leases in Texas require the landlord to comply with applicable housing codes, so you may be able to enforce the housing code through your lease.  

Because city officials can be overworked, you may want to review the housing code yourself so you can make a more specific complaint (and also so you can know if your landlord is actually violating the law).  Likewise, if your lease contains a provision requiring your landlord to comply with the housing code, you may want to review the code for your city to determine whether violation exists.  

In order to do, it’s important to understand how housing codes work.  Generally, cities don’t write their own housing codes, and instead adopt “model” codes written by third parties.  The city then may make its own modifications to that model code, or it may simply adopt the code without changes.  Thus, when you look up your city’s housing code you’re actually looking up three different things:

1. Your city’s “adopting statute,” which will tell you which model code applies.  

2. The particular model code adopted by your city; and

3. Any local amendments your city may have made to that model code.  

Information for housing codes in certain large Texas cities is provided here. Generally you can find all three of these things online with some time and Google.  

To illustrate with examples, (as of March, 2016) Section 25-12-211 of the City of Austin code adopts the 2012 edition of the International Property Maintenance Code.  Section 25-12-213 then makes a significant number of local amendments to the International Property Maintenance Code.  By contrast, the City of San Marcos (as of March, 2016) has adopted the 2015 edition of the International Property Maintenance Code without local amendments.  

Thus, in order to find what your city code actually requires, you need to first find which model code you city adopts and then find whether you city has made any local amendments.  

Landlord Repair Obligations Under the Lease

The third main mechanism for securing repairs from a landlord is the lease between the landlord and tenants.  

As a general rule, this mechanism tends to be the least helpful to the tenant for two reasons:

First, in a traditional landlord-tenant situation, tenants don't have nearly as much bargaining leverage as their prospective landlord.  Thus, while leases tend to contain dozens of paragraphs relating to the obligations of tenants, there tend to be very few lease provisions actually placing repair obligations on the landlord.  Moreover, even where the landlord has included provisions requiring it to make repairs in its lease, those provisions are often encumbered by preconditions and qualifications which can make them harder to use.  However, it's important to check the specific language of your particular lease, as leases vary and your lease may give you more protection that most.  

A second, more fundamental problem with relying on lease provisions is that the tenant's only remedy is generally to sue for breach of contract.  This is important because of the remedies available in a breach of contract suit - as a general rule, the only remedy available to the tenant is going to be the tenant's money damages and, sometimes, the tenant's attorney fees.  Money damages in a breach of contract cases are generally measured by what's called the "benefit of the bargain" - the difference between what the tenant was promised under the lease and what the tenant actually got.  So if an apartment would have been worth $800 a month if the landlord had fixed what they were supposed to, but was only worth $600 a month because the apartment went unrepaired, the tenant's contract damages would only be $200 per month.  (There's an important exception for lease provisions that can be enforced through the Texas Deceptive Trade Practices Act, but that's beyond the scope of this guide.)

At the same time, the provisions in a lease can sometimes offer protections that neither the property code nor the city's housing code provide.  For example, the most common lease in Texas - the Texas Apartment Association's "TAA Lease" - provides that the landlord must "act with customary diligence to ... substantially comply with all applicable laws regarding safety, sanitation, and fair housing; and make all reasonable repairs, subject to [the tenant's] obligation to pay for damages for which [the tenant] is liable."