The Property Management Webinar Series Presents Repairs Presented by ABBY LEE, Associate Counsel February 20, 2013

Webina r Outline I.Landlord’s Duty to Repair II.Liability of Landlord and Tenant’s Remedies III.Tenant’s Duty to Repair IV.Liability of Tenant and Landlord’s Remedies V.Specific Statutory and Lease Duties VI.Questions

Landlord’s Duty to Repair A landlord’s duty to repair comes from… 1.The Texas Property Code, and 2.A lease between the landlord and tenant. Note: Local ordinances and building codes may also impose duties or obligations on the owner of the property.

Landlord’s Duty to Repair: The Texas Property Code Under the Texas Property Code, the landlord’s duty to repair is found in § (a): A landlord shall make a diligent effort to repair or remedy a condition if: (1) the tenant specifies the condition in a notice to the person to whom or to the place where rent is normally paid; (2) the tenant is not delinquent in the payment of rent at the time notice is given; and (3) the condition: (A) materially affects the physical health or safety of an ordinary tenant; or (B) arises from the landlord's failure to provide and maintain in good operating condition a device to supply hot water of a minimum temperature of 120 degrees Fahrenheit.

Landlord’s Duty to Repair: The Texas Property Code Under the Property Code, a landlord is not obligated to repair a condition that materially affects the physical health and safety of an ordinary tenant if… 1.The tenant is delinquent in rent at the time the notice of repair is given;

Landlord’s Duty to Repair: The Texas Property Code Under the Property Code, a landlord is not obligated to repair a condition that materially affects the physical health and safety of an ordinary tenant if… 1.The tenant is delinquent in rent at the time the notice of repair is given; (a); 2.The condition was caused by the tenant, lawful occupant, member of the tenant’s family, or guest or invitee of the tenant (b); Exception: Unless the condition was technically caused by normal wear and tear.

Landlord’s Duty to Repair: The Texas Property Code “Normal wear and tear”, under the Property Code, means deterioration that results from the intended use of a dwelling, including breakage or malfunction due to age or deteriorated condition. The term does not include deterioration that results from negligence, carelessness, accident, or abuse of the premises, equipment, or chattels by the tenant, by a member of the tenant's household, or by a guest or invitee of the tenant.

Landlord’s Duty to Repair: The Texas Property Code Under the Property Code, a landlord is not obligated to repair a condition that materially affects the physical health and safety of an ordinary tenant if… 1.The tenant is delinquent in rent at the time the notice of repair is given; (a); 2.The condition was caused by the tenant, lawful occupant, member of the tenant’s family, or guest or invitee of the tenant (b); Exception: Unless the condition was technically caused by normal wear and tear. 3.A landlord and a tenant agree for the tenant to repair or remedy, at the landlord's expense, any condition ; or

Landlord’s Duty to Repair: The Texas Property Code Under the Property Code, a landlord is not obligated to repair a condition that materially affects the physical health and safety of an ordinary tenant if… 4.A landlord and a tenant may agree for the tenant to repair or remedy, at the tenant's expense, any condition covered if all of the following conditions are met: a)At the beginning of the lease term: i.The landlord owns only one rental dwelling; ii.The dwelling is free from any condition which would materially affect the physical health or safety of an ordinary tenant; iii.The landlord has no reason to believe that any condition described above is likely to occur or recur during the tenant's lease term or during a renewal or extension; and b)The lease is in writing, the agreement for repairs by the tenant is either underlined or printed in boldface in the lease or in a separate written addendum, the agreement is specific and clear; and the agreement is made knowingly, voluntarily, and for consideration.

Landlord’s Duty to Repair: The Texas Property Code Under the Property Code, a landlord is not obligated to repair a condition that materially affects the physical health and safety of an ordinary tenant if… 5.A landlord and tenant may agree that, except for those conditions caused by the negligence of the landlord, the tenant has the duty to pay for repair of the following conditions that may occur during the lease term or a renewal or extension: 1.damage from wastewater stoppages caused by foreign or improper objects in lines that exclusively serve the tenant's dwelling; 2.damage to doors, windows, or screens; and 3.damage from windows or doors left open. This subsection shall not affect the landlord's duty under Subchapter B to repair or remedy, at the landlord's expense, wastewater stoppages or backups caused by deterioration, breakage, roots, ground conditions, faulty construction, or malfunctioning equipment. Other requirements: The lease must be in writing, the agreement for repairs by the tenant is either underlined or printed in boldface in the lease or in a separate written addendum, the agreement is specific and clear; and the agreement is made knowingly, voluntarily, and for consideration.

Landlord’s Duty to Repair: The Texas Property Code What about emergency repairs? Texas Property Code § states: 1.A landlord that has an on-site management or superintendent's office for a residential rental property must provide to a tenant a telephone number that will be answered 24 hours a day for the purpose of reporting emergencies related to a condition of the leased premises that materially affects the physical health or safety of an ordinary tenant. 2.The landlord must post the phone number required by Subsection (1) prominently outside the management or superintendent's office. A landlord to whom Subsection (1) does not apply must provide to a tenant a telephone number for the purpose of reporting emergencies described by that subsection. 3.This section does not apply to or affect a local ordinance governing a landlord's obligation to provide a 24-hour emergency contact number to a tenant that is adopted before January 1, 2008, if the ordinance conforms with or is amended to conform with this section.

Landlord’s Duty to Repair: The TAR Residential Lease A lease between the landlord and tenant can also dictate the landlord’s duty to repair. Paragraph 18 of the TAR Residential Lease governs the rights and obligations of the parties with regard to repairs…

Landlord’s Duty to Repair: The TAR Residential Lease In addition to conditions that materially affect the physical health and safety of an ordinary tenant, if you are using the TAR form 2001 Residential Lease, paragraph 18(D) specifies the duties a landlord has:

Landlord’s Duty to Repair: The TAR Residential Lease Like the Property Code, the landlord’s duty under the TAR Residential Lease is triggered when the following things have occurred: 1.The tenant has provided notice—but unlike the Property Code, the TAR lease requires the request to be in writing. See paragraph 18(A). 2.The tenant is current in rent. If the tenant is delinquent in rent, the landlord is not obligated to make the repair. See paragraph 18(A).

Landlord’s Duty to Repair: The TAR Residential Lease What about emergency repairs? The TAR Residential Lease states: When can the landlord make repairs?

Liability of Landlord and Tenant’s Remedies The TAR Residential Lease also says…

Webina r Outline I.Landlord’s Duty to Repair II.Liability of Landlord and Tenant’s Remedies III.Tenant’s Duty to Repair IV.Liability of Tenant and Landlord’s Remedies V.Specific Statutory and Lease Duties VI.Questions

Liability of Landlord and Tenant’s Remedies Under the Texas Property Code, a landlord is liable if: 1)Tenant has given the landlord a notice to repair or remedy a condition by giving that notice to the person/place where rent is normally paid; Remember, the TAR Residential Lease requires the notice to be in writing.

Liability of Landlord and Tenant’s Remedies Under the Texas Property Code, a landlord is liable if: 1)Tenant has given the landlord a notice to repair or remedy a condition by giving that notice to the person/place where rent is normally paid; Remember, the TAR Residential Lease requires the notice to be in writing. 2)The condition materially affects the physical health or safety of an ordinary tenant;

Liability of Landlord and Tenant’s Remedies Under the Texas Property Code, a landlord is liable if: 1)Tenant has given the landlord a notice to repair or remedy a condition by giving that notice to the person/place where rent is normally paid; Remember, the TAR Residential Lease requires the notice to be in writing. 2)The condition materially affects the physical health or safety of an ordinary tenant; 3)The tenant has given the landlord a subsequent written notice after the landlord has had a reasonable amount of time to repair the condition after landlord received the tenant’s notice and if applicable, the subsequent notice;  A subsequent notice is only required if tenant initially gave notice in person or by regular mail (rather than by registered mail or certified mail, return receipt requested).

Liability of Landlord and Tenant’s Remedies Under the Texas Property Code, a landlord is liable if: 1)Tenant has given the landlord a notice to repair or remedy a condition by giving that notice to the person/place where rent is normally paid; Remember, the TAR Residential Lease requires the notice to be in writing. 2)The condition materially affects the physical health or safety of an ordinary tenant; 3)The tenant has given the landlord a subsequent written notice after the landlord has had a reasonable amount of time to repair the condition after landlord received the tenant’s notice and if applicable, the subsequent notice;  A subsequent notice is only required if tenant initially gave notice in person or by regular mail (rather than by registered mail or certified mail, return receipt requested). 4)The landlord has not made a diligent effort to repair; and

Liability of Landlord and Tenant’s Remedies Under the Texas Property Code, a landlord is liable if: 1)Tenant has given the landlord a notice to repair or remedy a condition by giving that notice to the person/place where rent is normally paid; Remember, the TAR Residential Lease requires the notice to be in writing. 2)The condition materially affects the physical health or safety of an ordinary tenant; 3)The tenant has given the landlord a subsequent written notice after the landlord has had a reasonable amount of time to repair the condition after landlord received the tenant’s notice and if applicable, the subsequent notice;  A subsequent notice is only required if tenant initially gave notice in person or by regular mail (rather than by registered mail or certified mail, return receipt requested). 4)The landlord has not made a diligent effort to repair; and 5)The tenant was not delinquent in rent at the time any notice was given.

Liability of Landlord and Tenant’s Remedies What is a “reasonable time” to repair?  There is a rebuttable presumption that seven days is reasonable.  To rebut that presumption, the following factors must be considered: 1.The date on which the landlord received the tenant's notice, 2.The severity and nature of the condition, and 3.The reasonable availability of materials and labor and of utilities from a utility company. What does a “diligent effort” mean?  To take reasonable steps to repair or remedy the condition and to not delay unnecessarily.

Liability of Landlord and Tenant’s Remedies Under the TAR Residential Lease, paragraph 18(B) states that a landlord may be liable if Landlord fails to repair a condition that materially affects the physical health or safety of an ordinary tenant as required by the lease or Property Code.

Liability of Landlord and Tenant’s Remedies If the landlord fails to meet the requirements of the Texas Property Code or the TAR Residential Lease, the tenant may be entitled to certain remedies…

Liability of Landlord and Tenant’s Remedies Under the TAR Residential Lease, the tenant may have the following remedies available:

Liability of Landlord and Tenant’s Remedies Under the Texas Property Code, a tenant can: 1.Terminate the lease; 2.Have the condition repaired or remedied and deduct from the tenant's rent, without necessity of judicial action, the cost of the repair or remedy according to Section ; or 3.Obtain judicial remedies according to Section

Liability of Landlord and Tenant’s Remedies If the tenant elects to terminate the lease, then the tenant is entitled to: 1. A pro rata refund of rent from the date of termination or the date the tenant moves out, whichever is later; and 2. Deduct the tenant's security deposit from the tenant's rent without necessity of lawsuit or obtain a refund of the tenant's security deposit according to law. The tenant is not entitled to the other repair and deduct remedies or the judicial remedies.

Liability of Landlord and Tenant’s Remedies The Repair and Deduct Remedy: When can it be used and what is the process?

Liability of Landlord and Tenant’s Remedies A tenant can have a condition repaired or remedied and deduct the cost from a subsequent rent payment if: 1. The deduction for the repair does not exceed the amount of one month’s rent or $500, whichever is greater. However, if the tenant's rent is subsidized in whole or in part by a governmental agency, the deduction limitation of one month's rent shall mean the fair market rent for the dwelling and not the rent that the tenant pays, determined either by that governmental agency or what a reasonable amount of rent would be under the circumstances. Repairs and deductions may be made as often as necessary so long as the total repairs and deductions in any one month do not exceed one month's rent or $500, whichever is greater.

Liability of Landlord and Tenant’s Remedies A tenant can have a condition repaired or remedied and deduct the cost from a subsequent rent payment if: 1. The deduction for the repair does not exceed the amount of one month’s rent or $500, whichever is greater. However, if the tenant's rent is subsidized in whole or in part by a governmental agency, the deduction limitation of one month's rent shall mean the fair market rent for the dwelling and not the rent that the tenant pays, determined either by that governmental agency or what a reasonable amount of rent would be under the circumstances. Repairs and deductions may be made as often as necessary so long as the total repairs and deductions in any one month do not exceed one month's rent or $500, whichever is greater. 2. The landlord has a duty to repair or remedy the condition under the Code and the duty has not been waived in a written lease by the tenant.

Liability of Landlord and Tenant’s Remedies A tenant can have a condition repaired or remedied and deduct the cost from a subsequent rent payment if: 1. The deduction for the repair does not exceed the amount of one month’s rent or $500, whichever is greater. However, if the tenant's rent is subsidized in whole or in part by a governmental agency, the deduction limitation of one month's rent shall mean the fair market rent for the dwelling and not the rent that the tenant pays, determined either by that governmental agency or what a reasonable amount of rent would be under the circumstances. Repairs and deductions may be made as often as necessary so long as the total repairs and deductions in any one month do not exceed one month's rent or $500, whichever is greater. 2. The landlord has a duty to repair or remedy the condition under the Code and the duty has not been waived in a written lease by the tenant. 3. The tenant has given the required notice to the landlord and, if required, a subsequent notice, and at least one of those notices states that the tenant intends to repair or remedy the condition. The notice shall also contain a reasonable description of the intended repair or remedy.

Liability of Landlord and Tenant’s Remedies A tenant can have a condition repaired or remedied and deduct the cost from a subsequent rent payment if: 4. Any one of the following events has occurred: The landlord has failed to remedy the backup or overflow of raw sewage inside the tenant's dwelling or the flooding from broken pipes or natural drainage inside the dwelling. 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. 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. 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.

Liability of Landlord and Tenant’s Remedies Once those conditions have been met, the tenant can begin to make repairs... 1.Immediately if it is to remedy the backup or overflow of raw sewage inside the tenant's dwelling or the flooding from broken pipes or natural drainage inside the dwelling. 2.After three days have passed from delivery of the notice if 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.After three days have passed from delivery of the notice if 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. 4.After seven days have passed from delivery of the notice if 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.

Liability of Landlord and Tenant’s Remedies Tenant’s Repair and Deduct Remedy, cont’d… Repairs must be 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 a newspaper of the local city, county, or adjacent county at the time of the tenant's notice of intent to repair. Unless the landlord and tenant agree otherwise, repairs may not be made by the tenant, the tenant's immediate family, the tenant's employer or employees, or a company in which the tenant has an ownership interest. Repairs may not be made to the foundation or load-bearing structural elements of the building if it contains two or more dwelling units. Repairs made pursuant to the tenant's notice must be made in compliance with applicable building codes, including a building permit when required. The tenant shall not have authority to contract for labor or materials in excess of what the tenant may deduct under this section. The landlord is not liable to repairmen, contractors, or material suppliers who furnish labor or materials to repair or remedy the condition. A repairman or supplier shall not have a lien for materials or services arising out of repairs contracted for by the tenant under this section. When deducting the cost of repairs from the rent payment, the tenant shall furnish the landlord, along with payment of the balance of the rent, a copy of the repair bill and the receipt for its payment. A repair bill and receipt may be the same document.

Liability of Landlord and Tenant’s Remedies Under the Texas Property Code, a tenant can: 1.Terminate the lease; 2.Have the condition repaired or remedied according to Section ; 3.Deduct from the tenant's rent, without necessity of judicial action, the cost of the repair or remedy according to Section ; and 4.Obtain judicial remedies according to Section

Liability of Landlord and Tenant’s Remedies A tenant’s judicial remedies include: 1. An order directing the landlord to take reasonable action to repair or remedy the condition; 2. An order reducing the tenant's rent, from the date of the first repair notice, in proportion to the reduced rental value resulting from the condition until the condition is repaired or remedied; 3. A judgment against the landlord for a civil penalty of one month's rent plus $500; 4. A judgment against the landlord for the amount of the tenant's actual damages; and 5. Court costs and attorney's fees, excluding any attorney's fees for a cause of action for damages relating to a personal injury.

Liability of Landlord and Tenant’s Remedies Tenant’s judicial remedies, cont’d :  The justice, county, and district courts have concurrent jurisdiction.  Burden of proof is on tenant in a judicial action unless the tenant shows that failed to make repairs within a reasonable amount of time after notice(s) was/were given and the landlord fails to provide a written explanation for delay.

Liability of Landlord and Tenant’s Remedies Don’t forget about this provision…

Webinar Outline I.Landlord’s Duty to Repair II.Liability of Landlord and Tenant’s Remedies III.Tenant’s Duty to Repair IV.Liability of Tenant and Landlord’s Remedies V.Specific Statutory and Lease Duties VI.Questions

Tenant’s Duty to Repair Under the Property Code, the landlord and tenant may agree that: 1. The tenant will repair or remedy any condition, at the landlord’s expense;

Tenant’s Duty to Repair Under the Property Code, the landlord and tenant may agree that: 1. The tenant will repair or remedy any condition, at the landlord’s expense; 2. The tenant will repair or remedy any condition, at the tenant’s expense if:  At the beginning of the lease term: the landlord owns only one rental dwelling; the dwelling is free from any condition which would materially affect the physical health or safety of an ordinary tenant; the landlord has no reason to believe that any material condition is likely to occur or recur during the tenant's lease term or during a renewal or extension; and the lease is in writing, the agreement for repairs by the tenant is either underlined or printed in boldface in the lease or in a separate written addendum, the agreement is specific and clear, and the agreement is made knowingly, voluntarily, and for consideration.

Tenant’s Duty to Repair Under the Property Code, the landlord and tenant may agree that: 1. The tenant will repair or remedy any condition, at the landlord’s expense; 2. The tenant will repair or remedy any condition, at the tenant’s expense if:  At the beginning of the lease term: the landlord owns only one rental dwelling; the dwelling is free from any condition which would materially affect the physical health or safety of an ordinary tenant; the landlord has no reason to believe that any material condition is likely to occur or recur during the tenant's lease term or during a renewal or extension; and the lease is in writing, the agreement for repairs by the tenant is either underlined or printed in boldface in the lease or in a separate written addendum, the agreement is specific and clear, and the agreement is made knowingly, voluntarily, and for consideration. OR 3. Except for those conditions caused by the negligence of the landlord, the tenant has the duty to pay for repair of the following conditions that may occur during the lease term or a renewal or extension: 1.Damage from wastewater stoppages caused by foreign or improper objects in lines that exclusively serve the tenant's dwelling; 2.Damage to doors, windows, or screens; and 3.Damage from windows or doors left open.

Tenant’s Duty to Repair Under the TAR Residential Lease, a landlord is not obligated to repair a condition if:

Webinar Outline I.Landlord’s Duty to Repair II.Liability of Landlord and Tenant’s Remedies III.Tenant’s Duty to Repair IV.Liability of Tenant and Landlord’s Remedies V.Specific Statutory and Lease Duties VI.Questions

Liability of Tenant and Landlord’s Remedies Under the Texas Property Code, if the tenant withholds rents, causes repairs to be performed, or makes rent deductions for repairs in violation of the repair subchapter, the landlord may recover actual damages from the tenant. In addition, the landlord may recover from the tenant a civil penalty of one month's rent plus $500, if the tenant withholds rent, causes repairs to be performed, or makes rent deductions for repairs in bad faith violation of this subchapter, after a landlord has notified a tenant in writing of: 1.The illegality of the tenant's rent withholding or the tenant's proposed repair, and 2.The penalties of this subchapter.

Liability of Tenant and Landlord’s Remedies The landlord has the burden of pleading and proving, by clear and convincing evidence, that the landlord gave the tenant the required notice of the illegality and the penalties and that the tenant's violation was done in bad faith. In any litigation under this subsection, the prevailing party shall recover reasonable attorney's fees from the nonprevailing party.

Liability of Tenant and Landlord’s Remedies Under the TAR Residential Lease, if the tenant fails to comply with terms of the lease, the landlord can terminate the tenant’s right of occupancy and be entitled to the other remedies under paragraph 27:

Specific Statutory and Lease Duties The Texas Property Code and a lease may create more specific duties for repair than the general duties imposed on the landlord and tenants. Three areas of specific duties include: Casualty Loss Security Devices Smoke Alarms

Specific Statutory and Lease Duties: Casualty Loss Under the Texas Property Code: 1.If a condition results from an insured casualty loss, such as fire, smoke, hail, explosion, or a similar cause, the period for repair does not begin until the landlord receives the insurance proceeds.

Specific Statutory and Lease Duties: Casualty Loss Under the Texas Property Code : 1.If a condition results from an insured casualty loss, such as fire, smoke, hail, explosion, or a similar cause, the period for repair does not begin until the landlord receives the insurance proceeds. 2.If after a casualty loss the rental premises are as a practical matter totally unusable for residential purposes and if the casualty loss is not caused by the negligence or fault of the tenant, a member of the tenant's family, or a guest or invitee of the tenant, either the landlord or the tenant may terminate the lease by giving written notice to the other any time before repairs are completed.  If the lease is terminated, the tenant is entitled only to a pro rata refund of rent from the date the tenant moves out and to a refund of any security deposit otherwise required by law.

Specific Statutory and Lease Duties: Casualty Loss Under the Texas Property Code: 1.If a condition results from an insured casualty loss, such as fire, smoke, hail, explosion, or a similar cause, the period for repair does not begin until the landlord receives the insurance proceeds. 2.If after a casualty loss the rental premises are as a practical matter totally unusable for residential purposes and if the casualty loss is not caused by the negligence or fault of the tenant, a member of the tenant's family, or a guest or invitee of the tenant, either the landlord or the tenant may terminate the lease by giving written notice to the other any time before repairs are completed.  If the lease is terminated, the tenant is entitled only to a pro rata refund of rent from the date the tenant moves out and to a refund of any security deposit otherwise required by law. 3.If after a casualty loss the rental premises are partially unusable for residential purposes and if the casualty loss is not caused by the negligence or fault of the tenant, a member of the tenant's family, or a guest or invitee of the tenant, the tenant is entitled to reduction in the rent in an amount proportionate to the extent the premises are unusable because of the casualty, but only on judgment of a county or district court.  A landlord and tenant may agree otherwise in a written lease.

Specific Statutory and Lease Duties: Casualty Loss Under the TAR Residential Lease:

Security Devices  Both the Texas Property Code and the TAR Residential Lease have very specific requirements for the repair of security devices.  For an in-depth look at the requirements, check out the article “Lock and Key” in the September/October 2012 issue of Texas REALTOR ® magazine.  Log on to then click “Magazine” under the “Publications” tab.

Smoke Alarms Under the Texas Property Code, the landlord has a duty to inspect and repair a smoke alarm: 1.The landlord shall determine that the smoke alarm is in good working order at the beginning of the tenant's possession by testing the smoke alarm with smoke, by operating the testing button on the smoke alarm, or by following other recommended test procedures of the manufacturer for the particular model.

Smoke Alarms Under the Texas Property Code, the landlord has a duty to inspect and repair a smoke alarm: 2.During the term of a lease or during a renewal or extension, the landlord has a duty to inspect and repair a smoke alarm, but only if the tenant gives the landlord notice of a malfunction or requests to the landlord that the smoke alarm be inspected or repaired. This duty does not exist with respect to damage or a malfunction caused by the tenant, the tenant's family, or the tenant's guests or invitees during the term of the lease or a renewal or extension, except that the landlord has a duty to repair or replace the smoke alarm if the tenant pays in advance the reasonable repair or replacement cost, including labor, materials, taxes, and overhead.

Smoke Alarms Under the Texas Property Code, the landlord has a duty to inspect and repair a smoke alarm: 3.The landlord must comply with the tenant's request for inspection or repair of a smoke alarm within a reasonable time, considering the availability of material, labor, and utilities.

Smoke Alarms Under the Texas Property Code, the landlord has a duty to inspect and repair a smoke alarm: 4.The landlord has met the duty to inspect and repair if the smoke alarm is in good working order after the landlord tests the smoke alarm with smoke, operates the testing button on the smoke alarm, or follows other recommended test procedures of the manufacturer for the particular model.

Smoke Alarms Under the Texas Property Code, the landlord has a duty to inspect and repair a smoke alarm: 5.The landlord is not obligated to provide batteries for a battery- operated smoke alarm after a tenant takes possession if the smoke alarm was in good working order at the time the tenant took possession.

Smoke Alarms Under the Texas Property Code, the landlord has a duty to inspect and repair a smoke alarm: 6.A smoke alarm that is in good working order at the beginning of a tenant's possession is presumed to be in good working order until the tenant requests repair of the smoke alarm as provided by this subchapter.

Smoke Alarms  A landlord is liable if: (1) the landlord did not install a smoke alarm at the time of initial occupancy by the tenant as required by law; or (2) the landlord does not install, inspect, or repair the smoke alarm on or before the seventh day after the date the tenant gives the landlord written notice that the tenant may exercise his remedies under the law if the landlord does not comply with the request within seven days.  A tenant of a landlord may be able to obtain one or more of the following remedies: a court order directing the landlord to comply; a judgment against the landlord for damages suffered by the tenant because of the landlord's violation, court costs and possibly attorney’s fees; a judgment against the landlord for a civil penalty of one month's rent plus $100 if the landlord does not repair the smoke alarm within the time required; and unilateral termination of the lease without a court proceeding if the if the landlord does not repair the smoke alarm within the time required.  The landlord has a defense to liability if the tenant is delinquent on rent or on the date the tenant terminates the lease or files suit the tenant has not fully paid costs requested by the landlord and authorized by Section (tenant must pay cost of repair if tenant’s fault).

Authority of Property Manager If you are using the TAR form 2201 Residential Leasing and Property Management Agreement, paragraph 4 states the Broker has the authority to: The Property Code also says that “A managing agent, leasing agent, or resident manager is the agent of the landlord for purposes of notice and other communications required or permitted by this subchapter.”

Questions My tenant has an unusual dust allergy and claims that the air quality within the rental property, which he has been residing in for two months, is materially affecting his physical health and safety. He wants the landlord to install a very expensive device on the air conditioner to remedy this condition. He has a note from his doctor saying he could have severe respiratory problems if this problem isn’t taken care of. What do I do?

Questions Neither the Texas Property Code, nor the lease, would require the landlord to install this specialized device on the air conditioner, at the landlord’s expense, in this property. A standard air conditioner, in good working order, in use at a property, is not a condition that would materially affect the physical health and safety of an ordinary tenant. Remember, the question is not Does the condition negatively affects a particular tenant?, rather the question is Would the condition affect an ordinary tenant? The TAR Residential Lease states that all decisions regarding repairs rest in the landlord’s sole discretion, and while the lease does state that the landlord will pay the entire cost to repair the heating and air conditioning systems, one could easily argue the unit is not in need of repair.

Questions A tenant has notified me that the water heater has stopped working. I was able to get a repairman out the next day and he told me that the water heater is in need of a part, which he will have to order. The part won’t be in until tomorrow. The tenant is very upset and wants the landlord to pay for a hotel room for the night. The landlord does not want to do this, but is the landlord obligated to?

Questions No. A landlord is not obligated to provide alternative housing for a tenant based on a repair that is needed, even if that repair is based on a condition that could be construed as materially affecting the physical health and safety of the ordinary tenant. Only if the landlord failed to make a diligent effort to remedy the condition after the tenant, who was not delinquent in rent and who properly provided notice, could the tenant then pursue the specific remedies in § Nothing in that section or any other section requires that the landlord put the tenant up in a hotel while repairs are being made.

Questions We leased a property to tenant and used the TAR Residential Lease. In the paragraph for special provisions, the landlord has written in a deductible for repairs. During the tenant’s lease term, the air conditioner stops working. As required in Paragraph 17(A)(13) of the lease, the tenant promptly notified the landlord, in writing, of the needed repair. The landlord charged the tenant the deductible and then contacted an AC repair company to fix the condition. The landlord then pays the remainder of the cost for the repair. Did the landlord do the right thing?

Questions No. The landlord has broken the terms of the lease spelled out in Paragraph 18(D)(1). A landlord is required to pay the entire cost of repairing the AC unless the condition was caused by the tenant. Therefore, the landlord must bear the entire cost to repair the AC, and the landlord is prohibited from charging the tenant the deductible.

Questions Several days ago, an unknown person broke into rental property I own, shattering a window in the process. The tenant of that property, who was not home at the time, called me and sent me written notice of the broken window. The tenant is arguing that because the damage was the result of a criminal act by a third person, the landlord is obligated to pay. The landlord thinks the tenant still has to pay. Who is right?

Questions Under paragraph 18(D)(2) of the TAR Residential Lease, a landlord does not have to pay to repair damage to windows and screens, unless caused by the landlord’s negligence. Therefore, under the lease, the tenant could be found responsible for the cost of repairing the window regardless of the fact that the damage was caused by a person committing a criminal act.

Questions A tenant’s dishwasher has stopped working and the tenant has requested a repair in writing. Under the TAR Residential Lease, who must pay for the repair?

Questions Under the TAR Residential Lease, unless the dishwasher is an item specifically listed in paragraph 18(D)(2)(f) as something the tenant will pay to repair, the landlord should pay for the repair. Paragraph 18(D) states that “landlord will pay to repair or remedy conditions in the Property in need of repair if Tenant complies with the procedures for requesting repairs as described in this Paragraph 18.” As long as the tenant has complied with the procedures under the lease, the landlord has to pay the repair.

Questions A tenant has requested that we replace carpet in one room because it looks worn and therefore “is in need of repair”. Does the landlord have to agree to repair this?

Questions No. While Paragraph 18(D) of the TAR Residential Lease does state that the Landlord will pay to repair or remedy conditions in the Property in need of repair as long as tenant requests the repair correctly, this does not mean that the landlord has the obligation to repair something like this. Whether or not something is actually in need of repair is a determination based upon a “reasonable person” standard: Would a “reasonable person” believe this is a condition in need of repair? Additionally, paragraph 18(D)(2) states that a landlord will not pay to repair “items that are cosmetic in nature with no impact on the functionality or use of the item.”

Repairs Questions?

Repairs Thanks for your participation in our webinar! Future Webinar Dates: May 22, August 21, October 23, & December 18 Questions? Contact the Legal Hotline at Give us your feedback! Complete the survey in the follow-up