Texas Landlords and Tenants Guide - Revised Jan 2010

1. REVISED JANUARY 2010

3. Landlords and Tenants Guide
Judon Fambrough
Attorney at Law
Texas A&M University
Revised January 2010
© 2010, Real Estate Center. All rights reserved.

5. Landlords and Tenants Guide
Contents
iii Foreword
1 Residential Landlord's Duty to Repair
9 Retaliation
11 Residential Landlord's Duty to Return Security Deposits
15 Rental Application
17 Residential Landlord's Duty to Install, Inspect and Repair Smoke Detectors
21 Residential Landlord's Liability for Utility Cutoffs and Interruptions
25 Miscellaneous Landlord-Tenant Topics
Charging Late Fees
Providing Emergency Phone Number
Guarantor's Liability When Lease Renewed
Advance Notices for Terminating Leases
Termination of Leases for Criminal Conviction
Tenants' Lien
S
. ubletting and Finding Replacement Tenants
Tenants' Insurance
Tenants' Right to Protest Property Taxes
Tenants' Right to Summon Police
Tenants' Right to Terminate Lease for Family Violence
Tenants' Right to Terminate Lease for Sexual Offenses
Tenants' Right to Terminate Lease for Military Service
33 General Provisions Relating to the Residential Landlord-Tenant Relationship
Landlord's Agents and Agent's Liability
Bad Faith and Harassment
Waivers and Venue
Cash Rental Payments
Occupancy Limits for Adults
Landlord's Duty to Mitigate Damages
Notices Sent to Tenant's Primary Residence
Policy Changes by Landlord
Care of Deceased Tenant's Personal Property and Security Deposit
37 Removal of Property and Lockouts
41 Residential Landlord's Duty to Install and Maintain Security Devices
49 Residential Landlord's Duty to Disclose Ownership and Management of Rental Unit
51 Public Nuisances at Multiunit Residential Property
53 Common Nuisances Occurring at Multiunit Residential Property
55 Residential Landlord's Lien
57 Landlord's Right to Evict Tenants and Pauper's Affidavit

6. Contents
65 Covenant for Quiet Enjoyment and Constructive Eviction
67 Residential Rental Locators
69 T
. elecommunications
71 S
. wimming Pool Enclosures
73 Pool Yard Enclosures with Relevant Definitions
81 Ascertaining the Criminal History of Employees of Residential Dwelling Projects
with Relevant Definitions
85 Towing Vehicles from Parking Lots and Public Roadways
91 Rules for Towing Vehicles from Multiunit Complexes' Parking Lots
with Relevant Definitions
95 Federal and State Statutes Affecting Residential and Commercial Tenancies
Soldiers' and Sailors' Civil Relief Act of 1940
Fair Housing Amendments of 1988
Pesticide Application
Warning of Lead-based Paint or Hazards
Statute of Frauds
Contract Addendum for Disclosure of Information on Lead-based Paint Hazards
101 Commercial Tenancies
109 Submetering Commercial Property
113 Landlord’s Lien on Commercial Buildings
115 Self-Service Storage Facility Liens
119 Mediation with Sample Agreement
121 Glossary
This report is for information only; it is not a substitute for legal counsel.
ii

7. Foreword
Income‑producing property plays a major role in and verify the criminal history of current and pro-
Texas real estate. Central to much of this property is spective employees.
the landlord‑tenant relationship. Significant legisla- In 1995, new laws were added concerning the
tive changes have been made in recent years. licensing of residential rental locators, the abate-
One basic rule of English common law was that ment of nuisances at multiunit residential property,
a tenant’s duty to pay rent was independent of the the installation of telecommunications equipment
landlord’s duty to repair without an agreement or on rental property and required educational courses
statute to the contrary. The lease was regarded as a dealing with landlord-tenant issues. In 1997, the
conveyance in land, subject to the doctrine of caveat 75th Legislature required landlords to mitigate
emptor (“let the buyer beware”). The landlord was damages when a tenant moves out early. Also, the
required to deliver only the right of possession. The legislators raised the maximum amount for the
tenant, in return, was required to pay rent as long repair-and-deduct statutes to $500 or one month's
as possession was retained, even if the building was rent, whichever is greater.
destroyed or became uninhabitable. This report discusses the various subchapters of
Texas courts and legislators have attempted to the Texas Property Code, the Texas Local Govern-
soften the harshness of this rule. The first major ment Code, the Texas Health and Safety Code, the
relief came in 1978, when the Texas Supreme Court Texas Human Resources Code, the Texas Govern-
established an implied warranty of habitability on ment Code, the Texas Civil Practices and Remedies
residential landlords (Kamarath v. Bennett, 568 S.W. Code and also Articles 6701g-2 and 6573(a) of the
2d 658 [Tex. 1978]). Texas Civil Statutes as amended, as each applies to
In 1979, Texas legislation effectively extinguished residential and commercial tenancies.
the implied warranty by enacting Subchapter B of Because of the number of recent amendments,
Section 92 of the Texas Property Code. As stated in many sections lack case law to construe and clarify
that subchapter, the law replaced existing common meaning and application. This is particularly true of
law (case law) and other statutory law, warranties laws dealing with security devices, pool yard en-
and duties of residential landlords for maintenance closures and towing vehicles. To make the statutes
and repair of rental units. more understandable, the language has been changed
More changes were enacted in 1993. Most signifi- to lay terms when possible.
cant was the replacement of subchapter D with new Landlords and tenants alike should be aware of
provisions requiring the installation of certain secu- the current statutes. For landlords, the awareness is
rity devices in residential units. The failure of the critical; knowledge helps avoid liability. Tenants, on
landlord to comply allows the tenant to unilaterally the other hand, need to know the law so they can
terminate the lease. Also, another new law permits preserve, protect and claim their rights and remedies.
employers in multiunit complexes to inquire about
iii

9. Residential Landlord’s Duty to Repair or Close Leasehold:
Subchapter B, Chapter 92, Texas Property Code
Subchapter B is significant to residential landlords How do tenants know who to contact for
and tenants. Under the former implied warranty of repairs?
habitability, the landlord was obligated to make the
premises habitable throughout the lease term. The Landlords who have on-site management or a
duty arose automatically without the tenant taking superintendent’s office for residential rental prop-
any initiative. However, under the present legislative erty must provide a 24-hour telephone number for
standard, the tenant must inform the landlord of a reporting emergencies on the leased premises that
problem before the repair obligation arises. materially affect the physical health or safety of an
Each section of Subchapter B is discussed in the ordinary tenant. The number must be posted outside
order that it appears in the statutes, beginning with the management or superintendent’s office (Sections
Section 92.051 and ending with Section 92.061. The 92.020[a]&[b]).
focus is primarily on what the landlord must repair, What about landlords in other situations?
what the tenant must do to invoke the landlord’s
duty to repair and what the tenant’s options are if Landlords who do not have on-site management
the landlord fails to repair. or a superintendent’s office must provide tenants
The statutes addressing landlord retaliation, Sec- a telephone number for reporting emergencies on
tions 92.057 and 92.059, have been moved to Sub- the leased premises that materially affect the physi-
chapter H, Sections 92.331 through 92.334, effective cal health or safety of an ordinary tenant (Section
January 1, 1996. 92.020[d]. The manner by which the information
must be provided is not specified in the statute.
Which leases are affected?
Are there any exceptions to the rules?
The subchapter affects all residential leases execut-
ed, entered, renewed or extended on or after Septem- Yes. The rules do not apply to or affect a local ordi-
ber 1, 1979 (Section 92.051). Obviously, amendments nance governing a landlord’s obligation to provide a
added after 1979 became effective as specified by the 24-hour emergency contact number if the ordinance
enabling legislation. was adopted before Jan. 1, 2008, and if it conforms
with or is amended to conform with the require-
Which conditions must landlords repair? ments of the statute (Section 92.020[c]).
Section 92.052[b] sets the basic premise for the Which conditions need not be repaired by
subchapter. The landlord must make a diligent effort
to repair or remedy any condition when: the landlord?
• the tenant has specified the condition in a Unless the problem is caused by normal wear and
notice to the person who collects rent or to the tear, the landlord has no duty to repair conditions
place where the rent is normally paid, caused by:
• the tenant is current in rent payments when • the tenant
the notice is given, and • a lawful occupant of the apartment
• the condition: • a member of the tenant’s family
1) materially affects the health or safety of an • a tenant’s guest or invitee
ordinary tenant or Finally, the landlord is not required to furnish
2) arises from the landlord's failure to provide utilities from a utility company if the utility lines
and maintain in good operating condition are not reasonably available. The landlord is not re-
a device to supply hot water of a minimum quired to furnish security guards (Section 92.052[b]).
temperature of 120 degrees Fahrenheit. The phrase normal wear and tear is defined as
The notice must be in writing only if the written “deterioration that results from the intended use of
lease so requires. As a practical matter, all notices a dwelling . . . but the term does not include dete-
should be in writing and either delivered in person rioration that results from negligence, carelessness,
or sent by certified mail, return receipt requested. accident or abuse of the premises, equipment or
Otherwise, proving that notice was served may be chattels by the tenant, by a member of the tenant’s
difficult. If delivered, some verification such as a household, a guest or invitee of the tenant (Texas
witness or a written acknowledgment from the re- Property Code, Section 92.001[4]).
cipient is needed.
1

10. Who has the burden of proof? When may the landlord close a unit?
Normally, in a judicial proceeding, the tenant Basically, the landlord has the right to close a unit
must prove that the landlord failed to repair or rem- by giving written notices announcing that the land-
edy a condition that materially affects the health or lord is terminating the tenancy as soon as legally
safety of an ordinary tenant (Section 92.053). How- possible, and, after the tenant moves, the landlord
ever, the landlord must assume this burden if the will either demolish the unit or no longer use it for
tenant can show that residential purposes. Notices must be sent by certi-
• reasonable time has elapsed since the initial fied mail, return receipt requested, to the tenant,
notice to repair was given, to the local health officer and to the local building
inspector (Section 92.055).
• a subsequent written notice was given to the
After the tenant leaves, the landlord may not allow
landlord demanding an explanation for the de-
reoccupancy or reconnection of utilities by a sepa-
lay and
rate meter within six months. Likewise, neither the
• the landlord failed to make the repairs or give local health officer or building inspector may allow
a written explanation for the delay within reoccupancy or utility service by a separate meter
five days after the second demand notice was to the rental unit until all known conditions that
received. materially affect the physical health or safety of an
The major problems are determining what consti- ordinary tenant have been repaired or remedied.
tutes an unreasonable delay and what constitutes If the landlord gives the tenant the closing notice
a nondiligent effort to repair. Some guidelines are before the tenant gives the landlord a repair notice,
provided later in Section 92.056. Furthermore, if the landlord has no liability to the tenant. If the
repairs are not made by the landlord, the tenant has tenant’s notice to repair precedes the landlord’s clos-
three options, but only one involves judicial action. ing notice, the tenant’s monetary recoveries include:
Consequently, shifting the burden of proof is impor- • actual and reasonable expenses;
tant only to tenants who seek the judicial remedies
• pro rata refund of any unused, prepaid rent;
discussed later.
• return of the security deposit less any proper
How does casualty loss affect repair deductions;
obligations? • one month’s rent plus $500;
The landlord has no duty to repair following a ca- • actual damages; and
sualty loss such as that caused by fire, smoke, hail or • court costs and attorneys' fees, excluding any
explosions until the landlord receives the proceeds attorneys' fees for personal injury.
for an insured casualty (Section 92.054).
The statutes interject two important qualifications
Until the repairs are actually completed, however,
to this provision. First, the first three recoveries
either the landlord or tenant may terminate the lease
apply only if the tenant moves out before the end of
by giving to the other a written notice whenever the
the lease term. Second, the closing of one or more
casualty loss
units is permitted without closing the entire apart-
• rendered the unit totally unlivable and ment complex.
• was not caused by the negligence or fault of the Sections 92.056 and 92.0561 were amended by the
tenant, a member of the tenant’s family, a guest 75th Texas Legislature. Both sections apply to resi-
or invitee of the tenant. dential leases entered or renewed on or after January
If the lease is so terminated, the tenant is entitled 1, 1998.
to a pro rata refund of rent from the date the tenant It is the author's opinion that by complying with
moves out and to a refund of any security deposit the procedures outlined below, the tenant fulfills
required by law. both the old and new statutory requirements for
If the unit is rendered partially unusable for resi- repairing and deducting from rent. However, the
dential purposes from a casualty loss not caused by most the tenant may deduct is one month's rent for
the negligence or fault of the tenant, a member of unrenewed leases entered before January 1, 1998.
the tenant’s family, a guest or invitee of the tenant,
the tenant is entitled to a proportionate rent reduc-
At what point does the landlord become
tion upon a judgment of a county or district court. liable for not doing repairs after being
Although this alternative entails a judicial proceed- notified by the tenant?
ing, in practice it rarely occurs. However, the land- Section 92.056(b) lists several requirements for cre-
lord and tenant may agree to nonjudicial, proportion- ating landlord liability for nonrepairs, based on how
ate rent reduction measures in the lease. the tenant gave the notice to the landlord.
If the tenant notifies the landlord in person or in
writing, the landlord becomes liable when all of the
following are true.
2

11. • The notice is given to the person to whom the If the six factors are met, are there
tenant normally gives rent payments to repair exceptions under which the landlord still
or remedy a condition.
does not have to make repairs?
• The condition materially affects the physical
health or safety of an ordinary tenant. The landlord still has no obligation to repair or
remedy a condition when:
• The tenant gives a second notice in writing to
repair or remedy the condition after a reason- • the condition was caused by the tenant or
able time elapses. guests (Section 92.052[b]) or
• The landlord has had a reasonable time to re- • the landlord is awaiting the proceeds from an
pair or remedy the condition after receiving the insured casualty loss (Section 92.054).
second notice.
• The landlord does not make a diligent effort to What alternatives does the tenant have if
repair or remedy the condition after receiving the six conditions are met, creating landlord
the second notice. liability, and none of the exceptions apply?
• The tenant was not delinquent in rent at
A tenant to whom a landlord is liable may, accord-
the time the notice(s) were given (Section
ing to Section 92.056(e):
92.056[a]&[b]).
• terminate the lease,
If the tenant initially notifies the landlord by certi-
fied or registered mail, the landlord becomes liable • repair or remedy the condition according to Sec-
when all of the following are true. tion 92.0561 and deduct the cost of the repair
• The tenant notifies the landlord to repair or from the rent without the necessity of judicial
remedy a condition by certified mail, return action or
receipt requested or by registered mail. The • obtain judicial remedies as specified in Section
notice is sent to the person to whom the tenant 92.0653.
normally gives rent payments.
What happens if the tenant elects to termi-
• The condition materially affects the physical
health or safety of an ordinary tenant. nate the lease?
• The landlord has had a reasonable time to re- If the tenant elects to terminate the lease, the ten-
pair or remedy the condition after receiving the ant is entitled to:
notice (by certified or registered mail). • a pro rata refund of rent from the date of ter-
• The landlord has not made a diligent effort to mination or the date the tenant moves out,
repair or remedy the condition after receiving whichever is later, and
the notice (by certified or registered mail). • deduct the tenant's security deposit from the
• The tenant was not delinquent in rent at tenant's rent without the necessity of a lawsuit
the time the notice was given (Section or obtaining a refund of the tenant's security
92.056[a]&[b]). according to law (Section 92.056[f]).
The tenant is not entitled to pursue any of the
What is considered a reasonable time for other remedies specified in Section 92.056(e) if the
making repairs? tenant elects to terminate the lease.
According to Section 92.056(d), a rebuttable pre-
sumption exists that seven days is a reasonable time What is the repair-and-deduct option? What
to make repairs. Factors rebutting the presumption are its qualifications and limits?
include the: The repair-and-deduct option allows the tenant to
• date the landlord receives notice, arrange and pay for repairs, then deduct the amount
• severity and nature of the condition and from rent payments.
The statute qualifies this restriction to some de-
• the reasonable availability of materials and
gree. First, the deductions for repairs for any month
labor, and also the availability of utilities from
may not exceed one month's rent or $500, whichever
the utility company.
is greater. However, if the tenant’s rent is subsidized
When is the notice received for purposes of in whole or in part by a governmental agency, the de-
duction limitation means the fair market rent for the
calculating the seven days? dwelling and not the amount of monthly rent that
Notice is deemed received by the landlord when the tenant actually pays. The government agency
the landlord's agent or employee physically receives subsidizing the rent makes the determination.
it or when the U.S. Postal Service attempts delivery Otherwise, fair market rent is a reasonable amount
(Section 92.056[c]). under the circumstances.
3

12. Second, the repair person or supplier cannot place cooling equipment; the equipment is producing
a lien on the property for the materials or services inadequate heat or cooled air; and the landlord
contracted by the tenant under this remedy. The has been notified in writing by the appropriate
landlord is not personally liable for the repairs. local housing, building or health officials or
And finally, the statute places the following re- other official having jurisdiction that the lack
strictions on the option. of heat or cooling materially affects the health
• Unless there is an agreement to the contrary, or safety of an ordinary tenant; then the tenant
the tenant, the tenant’s immediate family, the must wait three days before making repairs.
tenant’s employer or employee of a company in • After the landlord has received written
which the tenant owns an interest cannot make notification from the appropriate local housing,
the repairs. building or health official or other official
• The repairs must be made by a company, having jurisdiction that some other condition
contractor or repair person listed in the Yel- exists that materially affects the health or
low Pages or business section of the telephone safety of an ordinary tenant, the tenant must
directory. Alternatively, they may appear in the wait seven days before making repairs (Sections
classified section of a local or county newspa- 92.0561[d]&[f]).
per or in the newspaper in an adjacent county In some situations, a local housing, building or
at the time the tenant gives the landlord notice health official must verify certain conditions materi-
of having selected the repair-and-deduct option. ally affect the health or safety of an ordinary tenant
• No repairs may be made to the foundation or before repairs can begin.
load-bearing structure of a building containing This verification is not required when the condi-
two or more dwelling units. tion involves raw sewage, flooding from broken
pipes, natural drainage inside the dwelling, potable
• All repairs must be made in compliance with water or water service, or failure of the heating or
building codes, including building permits air conditioning system. Otherwise, verification is
when required. (It is unclear whether the cost needed before proceeding under the repair-and-de-
of the permits is included as part of the repair duct option.
costs.)
• After the repairs are made, the tenant must How may the landlord delay the tenant’s
furnish the landlord a copy of the repair bill and option to repair and deduct?
the receipt for payment with the balance of the The tenant’s option to repair and deduct may be
next month’s rent (Section 92.0561). delayed by the landlord’s delivering the tenant a
Must the landlord inform the tenant of signed and sworn affidavit (Section 92.0562). The
Affidavit for Delay, as it is called, must be delivered
these remedies? before the tenant contracts for the repairs. The af-
Yes. Effective Jan. 1, 2008, all leases must contain fidavit may be executed by either the landlord or an
language that is underlined or placed in bold print authorized agent. It must be delivered to the tenant
informing the tenant of the remedies available under by one of three methods:
Sections 92.056 and 92.0561 (Section 92.056[g]). • in person,
The Real Estate Center at Texas A&M University
reproduced those remedies as a contractal addendum • by certified mail, return receipt requested or
on its website at recenter.tamu.edu/pdf/1837.pdf. • left in a conspicuous place at the tenant's
dwelling if notice of delivery in such a manner
When can the tenant begin to make repairs? is authorized in the written lease.
This depends on the situation. The affidavit must be submitted in good faith and
• When the condition involves the backup or summarize the reasons for the delay. The affidavit
overflow or raw sewage or the flooding from must contain a sworn statement that diligent efforts
broken pipes or natural drainage inside the have been and are being made to effect repairs. The
dwelling, the tenant may remedy the situation dates, names, addresses and telephone numbers of
immediately after giving notice. There is no the contacted contractors, suppliers and repair per-
waiting period. sons must be included.
• When the condition involves the breach of an The affidavit will delay repairs only in two circum-
expressed or implied lease agreement to furnish stances. If neither circumstance exists, the affidavit
potable water to the tenant's dwelling and the is ineffective. First, the inability to obtain necessary
water service has ceased totally, the tenant parts will delay the landlord’s repair obligation 15
must wait three days before making the repairs. days. Second, the general shortage of labor or materi-
als following a natural disaster such as a hurricane,
• When the condition involves an expressed or tornado, flood, extended freeze or widespread wind-
implied lease agreement to furnish heating or storm will delay the landlord’s obligation 30 days.
4

13. The landlord can file repeated affidavits as long as liability is twice that of the former landlord’s for the
the total delay does not exceed six months. same act.
An Affidavit for Delay is effective only when
necessary parts are unavailable or there is a short- What judicial remedies are available to
age of labor or materials following a natural disaster. tenants?
However, no affidavit is required and no repairs are Until Jan. 1, 2010, Section 92.0563 lists as many as
necessary when the landlord is waiting for insurance five possible judicial remedies a tenant may pursue if
proceeds following a casualty loss mentioned in Sec- the judicial option is chosen:
tion 92.054. • A court order directing the landlord to take
The law presumes that the landlord acted in good reasonable steps to repair the condition.
faith and with continued due diligence for the first • A court order reducing the tenant’s rent accord-
affidavit. However, this presumption may be re- ing to the reduced rental value resulting from
futed or disproven by the tenant. After that, there is the condition. The reduction is figured from
a presumption to the contrary. If the landlord files the time the first repair notice was given until
a false affidavit or does not act with due diligence, the condition is repaired.
the landlord is liable for all the judicial remedies • A judgment for one month’s rent plus $500.
described later except that the civil penalties shall be • A judgment for the amount of the tenant’s
one month’s rent plus $1,000. actual damages.
If the landlord repairs the condition or delivers • Court costs and attorneys' fees excluding those
an affidavit for delay after the tenant has contacted relating to recoveries for personal injury.
the repair person but before the repair person begins
The tenant’s petition may be filed in the justice,
work, the landlord is liable for the repair person’s
county or district courts, depending on the amount
trip charge. If the landlord does not reimburse the
of the tenant’s claim. However, until Jan. 1, 2010,
tenant for the charge, the tenant may deduct the
the justice courts may not order the landlord to
charge from rent as if it were a repair cost.
make repairs. They can render the other remedies.
How does change of landlords affect The right of the justice court, the county court or
the district court to hear a certain case depends on
remedies?
the monetary amount of the claim or dispute.
The tenant’s choice of remedies may be affected by
an intervening change of ownership. If the tenant has What judicial remedies are available to
opted to terminate the lease, an intervening change tenants who file in the justice courts after
of ownership after proper notices have been given to
the former landlord does not necessitate new no-
Jan. 1, 2010?
tices to be given to the new landlord. Likewise, the If a suit is filed in the justice court (JP) requesting
tenant’s right to repair and deduct for sewage back- an order directing the landlord to take reasonable
up, inside flooding or cutoff of potable water is not steps to repair the condition, the justice court should
affected, and new notices are not required. However, conduct a hearing on the request between the 6th
new notices must be given for any other repair-and- and tenth day after the service of the citation on the
deduct situation if the: landlord. If the justice finds for the tenant, the court
may not award a judgment, including the costs of
• tenant has not contracted for the repairs,
repair, that exceeds $10,000, excluding interest and
• landlord acquires title without knowledge of court costs (92.0563[d] and [e]).
the tenant’s notices to the prior landlord and Note. The Texas Supreme Court is directed to
• acquiring landlord has notified the tenant of the adopt rule of civil procedure to effectuate Sections
new landlord’s name and address or an agent’s 92.0563(d) and (e). The rules must be adopted by the
name and address. high court by Jan. 1, 2010.
If the tenant has chosen the third option (judicial
remedies), any judicial remedy shall be limited to re-
Can the order from the justice court be
covery against the former landlord if an intervening appealed? What effect does an appeal have
change of ownership occurs. By issuing new notices on the order by the justice court?
to the acquiring landlord, however, the new landlord The judgment of the justice court may be appealed
becomes liable for the judicial remedies specified to the county court. The appeal takes precedence in
in Section 92.0563. If, however, the new landlord the county court. The appeal may be heard any time
violates Section 92.0562, the new landlord is liable after eight days after the transcript is filed. An appeal
to the tenant for a civil penalty of one month’s rent by the owner of the property perfects the appeal and
plus $2,000, actual damages and attorneys' fees. stays the effect of the judgment by the justice court
Exactly how a new landlord can violate Section without the need to post an appeal bond (Section
92.0562 is unclear. However, the new landlord’s 92.0563[f]).
5

14. Can tenants retaliate? poses two elements on the landlord. The first is to
The tenant is prohibited from withholding rents, make the repairs; the second is to make repairs at
causing repairs to be performed or deducting repair the landlord’s expense. The statutes place the two
costs from rent in violation of Subchapter B (Section elements in separate categories.
92.058). If the tenant breaches this rule, the landlord The first category permits waivers when the ten-
may recover actual damages. However, the penalties ant makes the repairs at the landlord’s expense. This
are more severe if the tenant undertakes any or all is somewhat akin to the repair-and-deduct option
three of the same acts, in bad faith, after the landlord but without the limitations and restrictions of one
has informed the tenant in writing that the acts are month’s rent. The second category permits waivers
in breach of the subchapter and stated the penalties when the tenant makes the repairs at the tenant’s
for the breach. expense. Obviously, the second category is nearly
Under these circumstances, the landlord may opposite of the first. Hence, the formalities for this
recover a civil penalty of one month’s rent plus $500 type of waiver are quite extensive.
and reasonable attorneys' fees. However, the land-
When may the tenant make repairs at the
lord must prove by clear and convincing evidence
that the landlord’s expense?
• written notice was given to the tenant in per- Two waivers apply (Sections 92.006[d] and
son, by mail or delivered to the premises and 92.0561[g]). The landlord and tenant may agree for
the tenant to repair, at the landlord’s expense, any
• the tenant acted in bad faith.
condition that materially affects the physical health
The tenant cannot take matters in hand but must or safety of the ordinary tenant (Section 92.006[d]).
follow precisely the procedures prescribed in Sub- Also, the landlord and tenant may mutually agree for
chapter B. If the steps are not followed exactly, the the tenant to repair, at the landlord’s expense, any
tenant, not the landlord, will be liable. condition of the dwelling regardless of whether it
materially affects the health or safety of an ordinary
Where does tenant send or deliver notices? tenant (Section 92.0561[g]).
A managing agent, leasing agent or resident Together, the two sections permit the landlord and
manager is the agent of the landlord for purposes of tenant to agree for the tenant to repair or remedy any
notice of repair for Section 92.060 or other commu- condition just as long as it is at the landlord’s ex-
nication required or permitted by the subchapter. pense. The waivers are not required to be in writing.
It is unclear whether Section 92.060 contradicts In fact, the statutes require no formalities except the
Section 92.052 discussed earlier. Section 92.052 existence of the agreement.
requires the tenant to give notice of a condition to Because of the monetary restrictions (one month’s
the person to whom or to the place rent is normally rent) and the subject matter limitation (only those
paid. Such a person or place may not be the man- things that affect the physical health or safety of an
aging agent, leasing agent or resident manager as ordinary tenant) the tenant may wish to pursue the
specified in Section 92.060. If they are not the same second waiver (Section 92.0561[g]) to make needed
person or place, the tenant should send two notices, repairs around the dwelling that do not fall within
one in compliance with each section. the coverage of Subchapter B.
The duties of a landlord and the remedies of a tenant
under Section 92.061 are in lieu of existing case law or When may tenants pay for repairs?
other statutory law, warranties and duties of landlords Two waivers apply in the second, more restric-
for maintenance, repair, security, habitability and tive, category (Sections 92.006[e] and 92.006[f]). The
nonretaliation and remedies of tenant for a violation landlord and tenant may agree for the tenant to re-
of those warranties and duties. In other words, Sub- pair, at the tenant’s expense (Section 92.006[e]), any
chapter B represents the tenant’s sole legal means to condition that materially affects the physical health
prompt a residential landlord to make repairs and the or safety of an ordinary tenant if the following eight
sole legal means for a judicial recovery in the event of conditions are met in the lease:
the landlord’s noncompliance. • The residential lease must have been entered
into or renewed after August 31, 1989.
Are waivers permitted?
• At the beginning of the lease term, the landlord
Discussion of a residential landlord’s duty to repair
must own only one rental dwelling.
is not complete without addressing waivers. Basical-
ly, the landlord is prohibited from waiving any duty • At the beginning of the lease term, the dwell-
to repair the premises except in four instances. Three ing must be free from any condition that would
are found in Subchapter A of Chapter 92 of the Texas materially affect the physical health or safety of
Property Code, the other in Subchapter B. an ordinary tenant.
Some general facts about the landlord’s duty to • At the beginning of the lease term, the landlord
repair will help explain the statutes. The law im- must have no reason to believe any condition
6

15. that materially affects the physical health or last one) after February 28, 1990. Finally, this waiver
safety of an ordinary tenant is likely to occur or requires the tenant to pay for repairs. It says nothing
recur during the tenant’s lease term or during a about the tenant making the repairs.
renewal or extension.
• The lease must be in writing. How may landlords be penalized for waiver
• The agreement for the tenant’s repairs must be violations?
either underlined or printed in boldface in the If a landlord knowingly violates either of the last
lease or in an attached, written addition (adden- two waivers by contracting orally or in writing to
dum). waive the landlord’s duty to repair, severe statutory
• The agreement must be specific and clear (un- remedies are mandated. The tenant may recover
ambiguous). actual damages, a civil penalty of one month’s
rent, $2,000 and reasonable attorneys' fees (Section
• The agreement must be made knowingly, vol- 92.0563[b]). The tenant has the burden of pleading
untarily and for consideration (money). and proving the landlord breached the statute know-
It is unclear when or why a tenant would agree to ingly. If the lease is in writing and in compliance
such an arrangement unless the consideration was with Section 92.006, the tenant’s proof must be clear
rent reduction equal to the repair costs or a reim- and convincing.
bursement equal to the cost of a third party making Although the penalties are intended to keep a
the repairs. landlord from violating the waivers, it is difficult to
The landlord and tenant may agree (Section imagine how a waiver made in compliance with Sec-
92.006[f]) that the tenant has the duty to pay for tion 92.006 can be violated knowingly. Two of the
repairs for four requirements for either of the last two waivers
• damage from wastewater stoppages caused by are for them to be underlined or in boldface print and
foreign or improper objects in lines serving the to be made knowingly, voluntarily and for consider-
rental unit exclusively; ation. However, to make sure the tenant is aware of
• damage to doors, windows or screens; and any such waivers in the lease, the landlord should
have the tenant initial and date the provision.
• damage from windows or doors left open. Significant changes were made to Subchapter B of
How are Section 92.006(f) waivers the Texas Property Code in 1989. As with any new
law, it will take time for the courts to construe and
implemented? clarify their meaning. In the meantime, landlords
To implement this waiver, the following eight and tenants must puzzle over what repairs material-
conditions must be met: ly affect the physical health or safety of an ordinary
• The residential lease must have been executed tenant.
or renewed before March 1, 1990. Also, some concept of what constitutes an ordi-
nary tenant must be formulated. Are babies and the
• The condition occurred during the lease term or
physically handicapped “ordinary tenants?” Obvi-
a renewal or extension.
ously, conditions that would affect their health and
• The condition was not caused by the landlord’s safety might not affect the health of others.
negligence.
• The agreement does not relieve the landlord’s What lease provisions are important?
duty to repair wastewater stoppage or backups Tenants and landlords also should be aware of how
caused by deterioration, breakage, roots, ground the lease agreement can affect the landlord’s duty
conditions, faulty construction or malfunction- to repair. Tenants may unwittingly give up (or even
ing equipment. gain) certain rights when they sign the lease. Here is
• The lease must be in writing. a list of the relevant lease provisions mentioned in
• The agreement for the tenant’s repairs must be Subchapter B.
either underlined or printed in boldface in the • The landlord and tenant can agree that the ten-
lease or in an attached, written addition (adden- ant will make all the repairs at the landlord’s
dum). expense. This may be placed in the lease or
• The agreement must be specific and clear (un- made orally (Sections 92.006[d] and 92.0561[g]).
ambiguous). • The landlord and tenant can agree that the ten-
• The agreement must be made knowingly, vol- ant will make all repairs that materially affect
untarily and for consideration (money). the physical health and safety of an ordinary
tenant at the tenant’s expense. This waiver
The last four requirements for this waiver are
must meet the eight requirements previously
identical to the prior one. Also, it is apparently
outlined (Section 92.006[e]).
impossible to agree to a Section 92.006(f) waiver (the
7

16. • The lease agreement may address whether the It is imperative that both the landlord and ten-
first notice to repair must be in writing (Section ant know and understand Subchapter B of the Texas
92.052). Property Code. From the landlord’s perspective, it
• The landlord and tenant may agree to a pro- is important to know what items must be repaired
portionate reduction in rent if a casualty loss and when the tenant has taken the appropriate steps
renders the unit partially unusable (Section (notices) to prompt their repair.
92.054). From the tenant’s perspective, knowledge of Sub-
chapter B is important in taking advantage of the
• The landlord and tenant may agree that the
available remedies. Tenants who attempt self-help
tenant, the tenant’s immediate family, the
measures or improperly attempt to invoke Subchap-
tenant’s employer or employee of a company
ter B remedies may be liable to the landlord, accord-
in which the tenant owns an interest can make
ing to Section 92.058.
the repairs under the repair-and-deduct option
Most tenants may know that a notice must be
(Section 92.0561).
given before the landlord’s repair duty arises. How-
• The landlord may waive any expressed or im- ever, few may realize that at least two, and possibly
plied duty to furnish heating and cooling equip- three, notices are necessary. Likewise, tenants may
ment (Section 92.0561). not know when the notices must be given nor what
• The tenant may agree (or refuse to allow) the they must say.
landlord to give effective notices by leaving the Finally, tenants must know that the landlord has a
notice in the tenant’s dwelling in a conspicu- duty to repair only conditions that materially affect
ous place. This affects whether a notice may the physical health and safety of an ordinary tenant.
be given by leaving an Affidavit of Delay at Even then, those conditions caused by the tenant,
the tenant’s dwelling (Section 92.0562). It may a member of the tenant’s family, a tenant’s guest or
affect whether the landlord can give notice to a lawful occupant of the dwelling are not covered.
the tenant concerning the withholding of rent, Third party verification by health officials may be
causing repairs to be performed or deducting required.
repair costs from rent in breach of Subchapter B
(Section 92.058).
8

17. Retaliation:
Subchapter H, Chapter 92, Texas Property Code
Subchapter H of the Texas Property Code was en- landlord violates a court order under Section 92.0563
acted by the 74th Texas Legislature, effective January by:
1, 1996. The new subchapter is composed primarily • increasing rent under an escalation clause in a
of former Sections 92.057 and 92.059 of the Property written lease for utilities, taxes, or insurance
Code. It prohibits a landlord from retaliating when a or
tenant pursues a repair-and-deduct option. Subchap-
• increasing rent or reducing services as part of a
ter H contains Sections 92.331 through 92.334.
pattern of rent increases or services reduction
Can landlords retaliate? for an entire multi-dwelling project.
Landlords are prohibited from retaliating against a What if an eviction or lease termination
tenant who:
occurs within the six-month period?
(1) in good faith exercises or attempts to ex-
No eviction or lease termination shall be deemed
ercise against a landlord a right or remedy
retaliatory if based on one of the following:
granted to the tenant by lease, municipal
ordinance, or federal or state statute, • the tenant is delinquent in rent when the land-
lord gives notice to vacate or files an eviction
(2) gives a landlord a notice to repair or exercise
action,
a remedy under this chapter or
• the tenant, a member of the tenant's family, or
(3) complains to a governmental entity responsi-
a guest or invitee of the tenant intentionally
ble for enforcing building or housing codes, a
damages property on the premises or by word
public utility, or a civic or nonprofit agency,
or conduct threatens the personal safety of the
and the tenant:
landlord, the landlord's employees or another
• claims a building or housing code viola- tenant,
tion or utility problem and
• the tenant materially breaches the lease, other
• believes in good faith that the complaint than by holding over, by an action such as
is valid and that the violation or problem violating written lease provisions prohibiting
occurred (Section 92.331[a]). serious misconduct or criminal acts, except as
provided by this section,
What type of retaliatory actions are
• the tenant holds over after giving notice of
prohibited? termination or intent to vacate,
Basically, for six months after the date the tenant
• the tenant holds over after the landlord gives
undertakes an action described in Section 92.331(a),
notice of termination at the end of the rental
the landlord may not retaliate by:
term and the tenant does not take action under
• filing an eviction proceeding, except for the Section 92.331 until after the landlord gives
grounds stated in Section 92.332 (discussed notice of termination or
later),
• the tenant holds over and the landlord's notice
• depriving the tenant of the use of the premises, of termination is motivated by a good faith
except for reasons authorized by law, belief that the tenant, a member of the tenant's
• decreasing services to the tenant, increasing family, or a guest or invitee of the tenant
the tenant's rent or terminating the tenant's might:
lease or 1. adversely affect the quiet enjoyment by
• engaging, in bad faith, in a course of conduct other tenants or neighbors,
that materially interferes with the tenant's 2. materially affect the health or safety of the
rights under the tenant's lease (Section landlord, other tenants or neighbors or
92.331[b]).
3. damage the property of the landlord, other
What defenses do landlords have? tenants or neighbors (Section 92.332[b]).
According to Section 92.332, a landlord is not
liable if the actions were not taken for purposes of
retaliation. However, liability remains whenever the
9

18. What are the tenant's remedies for a writing that a violation of a building or housing code
landlord's retaliation? does not exist or that a utility problem does not ex-
ist, there is a rebuttable presumption that the tenant
If the tenant can prove the landlord's actions were acted in bad faith.
retaliatory, the tenant may recover:
• a civil penalty of one month's rent plus $500, Can tenants retaliate?
• actual damages, The tenant is prohibited from withholding rents,
causing repairs to be performed or deducting repair
• court costs and costs from rent except in exact compliance with the
• reasonable attorney's fees in an action either to repair-and-deduct procedures outlined in Subchapter
recover property damages, moving costs, actual B. If the tenant breaches this rule, the landlord may
expenses, civil penalties, or to get declaratory recover actual damages. However, the penalties are
or injunctive relief, less any delinquent rents more severe if the tenant undertakes any or all three
or other sums for which the tenant is liable to of the same acts, in bad faith, after the landlord has
the landlord. informed the tenant in writing that the acts are in
If the tenant's rent payment to the landlord is sub- breach of the subchapter and stated the penalties for
sidized in whole or in part by a governmental entity, the breach.
the civil penalty granted under this section shall Under these circumstances, the landlord may
reflect the fair market rent of the dwelling plus $500 recover a civil penalty of one month's rent plus $500
(Section 92.333). and reasonable attorney's fees. However, the land-
lord must prove by clear and convincing evidence
What remedies do landlords have for bad that the
faith claims filed against them? • written notice was given to the tenant in per-
son, sent by mail or delivered to the premises
If a tenant files or prosecutes a suit under this
and
subchapter in bad faith, the landlord may recover
possession of the dwelling unit and may recover • the tenant acted in bad faith (Section 92.058).
from the tenant a civil penalty of one month's rent The tenant cannot take matters in hand but must
plus $500, court costs and reasonable attorney's fees follow precisely the procedures prescribed in Sub-
(Section 92.334[b]). If the tenant's rent payment to chapter B. If the steps are not followed exactly, the
the landlord is subsidized in whole or in part by a tenant, not the landlord, will be liable.
governmental entity, the civil penalty granted under
this section shall reflect the fair market rent of the What defenses do tenants have?
dwelling plus $500. The tenant can defend an eviction suit by the
The term bad faith is not defined. An example of landlord by showing that it is retaliatory (Section
a tenant's bad-faith action is illustrated in Section 92.335). Likewise, the tenant can defend a suit for
92.334(a). If a tenant files or prosecutes a suit for nonpayment of rent by showing that it is in compli-
retaliatory action based on a violation of a building ance with the repair-and-deduct procedures outlined
or housing code or a utility problem, and the govern- in Subchapter B.
ment building or housing inspector or utility com-
pany representative visits the premises and states in
10

19. Residential Landlord’s Duty to Return Security Deposits:
Subchapter C, Chapter 92, Texas Property Code
Subchapter C of the Texas Property Code governs defined as “deterioration that results from the
security deposits (Section 92.001 through Section intended use of a dwelling . . . but term does not
92.109). The sections are addressed in numerical include deterioration that results from negligence,
order. When possible, the statutes have been restated carelessness, accident or abuse of the premises,
in common terms. equipment or chattels by the tenant, by a member of
the tenant’s household or by a guest of the tenant”
Which leases are covered? (Texas Property Code, Section 92.001[4]).
The subchapter applies to all residential leases Although there is a statutory definition of normal
regardless of when they were executed [Section wear and tear, there has been no case law to amplify
92.101]. its meaning. Consequently, the determination is on
a case-by-case basis with no fact situations as prec-
How is the term security deposit defined? edents.
Effective September 1, 1995, a security deposit is The landlord is required to give the tenant a writ-
defined as any advance of money, other than a rental ten, itemized list of all the deductions except when
application deposit or an advance payment of rent, • the tenant owes rent at the time of the surren-
intended primarily to secure performance of the resi- der and
dential lease that has been entered by both a landlord • the amount of rent owed is not disputed.
and tenant (Section 92.102). No language dictates the
size of the deposit; the amount is strictly negotiable. How and when should the unit’s condition
When should landlords return a deposit? be verified?
Deductions from the security deposit are one of
The landlord is required to return the tenant’s
the major areas of dispute between the landlord
security deposit on or before 30 days after the tenant
and tenant. The problems center on (1) whether the
surrenders the premises (Section 92.103). The tenant
unit’s condition justified a cleanup, (2) whether a
need not give advance notice of the surrender as a
defect was caused by the tenant or resulted from nor-
condition for the refund except when the lease so
mal wear and tear and (3) the amount of any justified
provides. Even then, the requirement must be under-
repairs on cleanup. Unless proper precautions are
lined and placed in conspicuous bold print.
taken by the landlord and tenant, proving the unit’s
If the landlord is in bankruptcy when the refund is
condition both at the move-in and time of surrender
required, the tenant’s right to the deposit takes prior-
may be difficult.
ity over the claim of any creditor, including a trustee
Part of the problem lies with the different motiva-
in bankruptcy.
tions of the parties at the critical times. When show-
Must the security deposit be mailed by the ing the unit, the landlord tends to accentuate the
unit’s positive aspects and downplay the negative.
landlord or received by the tenant within 30 When the tenant moves out, the landlord tends to
days after surrender of the premises? accentuate the negative aspects of the unit to justify
According to Section 92.1071, a landlord must deductions from the security deposit. Obviously, the
mail the security deposit (and an accounting if tenant takes the opposite side each time.
deductions are made). The letter must be placed in Consequently, accumulation and preservation
the U.S. mail and postmarked on or before the end of of objective evidence of the unit’s condition at the
the 30-day period. It does not have to be received by crucial times are imperative. Both parties should be
the tenant within the 30 days. amiable to one or more of the following suggestions.
Perhaps the easiest way to document defects,
What charges may be deducted from a flaws, needed repairs, dirty spots, unclean appliances
security deposit? and so forth is for the landlord and tenant to conduct
Some charges may be deducted from the security a walk-through and list problems as they are discov-
deposit (Section 92.104). The landlord may deduct ered. After the walkthrough, the list should be dated
damages and charges for which the tenant is legally and signed. Both the landlord and tenant may wish
liable under the lease or as a result of its breach. to reserve the right to document other problems
However, no charges are allowed for normal wear discovered within a certain period after move-in or
and tear. The phrase normal wear and tear is move-out.
11

20. Another approach is to take photographs or video- accurate records of all security deposits. There is no
tapes of the unit’s condition at move-in and move- legal requirement that the escrow payment be held
out. This may be supplemental to the walk-through in a separate account or that it accrue interest.
or in lieu of it if both parties cannot be present at
either or both times. Why is a forwarding address important?
The latter approach is preferable for several rea- The tenant is required to give the landlord a writ-
sons. First, the severity of a problem can be docu- ten statement of the tenant’s forwarding address for
mented better on film. Second, ownership or man- purposes of refunding the security deposit. Until the
agement may change after move-in. The new owners written forwarding address is received, the landlord
or managers may dispute the findings of a walk- has no duty to
through conducted when they were not personally • return the tenant’s security deposit or
present. Third, in major apartment complexes, it is
• give the tenant a written description of dam-
physically impossible for the landlord to be present
ages and charges.
for each move-in and move-out when many tenants
arrive and leave at the same time. However, failure to give the forwarding address
And finally, photographs taken both at the begin- does not cause the tenant to forfeit the right of re-
ning and end of a lease term help differentiate dam- fund or the right to receive a description of damages
ages and normal wear and tear. The tenant is liable and charges.
for damages but not for normal wear and tear. The tenant’s written notice of a forwarding address
Another unanticipated problem could arise even is a condition for the refund of the security deposit
with careful walk-throughs and accompanying pho- (Section 92.107). However, it does not state when or
tographs. Such problems include sudden damages how the notices must be given.
occurring after move-in that are not caused by the The tenant has at least two possible approaches to
tenant. These include damages such as a leaking roof the problem. If the tenant has a permanent address,
or flooding. as students do while away at college, the forwarding
Obviously, the tenant should call these problems (or home) address may be placed on the lease when it
to the landlord’s attention. However, the landlord is signed.
may do nothing and charge the damages to the ten- If the forwarding address is not placed on the lease
ant’s security deposit. This could happen, especially form, proof of the delivery may be a problem. The
if a change of ownership intervenes. Consequently, tenant may wish to pursue either or both of the fol-
pictorial documentation of damages occurring after lowing procedures.
move-in should be made and preserved. First, personally deliver a written copy of the for-
Even with a walk-through, photographs or both, warding address and have the landlord or authorized
the tenant should be aware of any lease provision agent acknowledge the receipt. Keep the acknowl-
permitting clean-up costs. The wording of the provi- edgment (on a separate piece of paper) for proof of
sion and the amounts allowed for a cleanup in the delivery and the date notice was given.
lease are important. Second, send the forwarding address to the land-
For instance, the tenant might leave the apart- lord or authorized agent by certified mail, return
ment immaculate. Even so, the lease still may allow receipt requested. Keep a copy of the notice and the
the landlord to have the unit cleaned for a predeter- return receipt for proof of delivery.
mined cost. In fact, either a personal delivery of the forward-
ing address or a certified letter sent to the landlord
Who returns a deposit when ownership approximately 30 days before the lease terminates
changes? can satisfy several requirements. First, if the lease
mandates an advance written notice as a condition
When an intervening change of apartment own-
for refund of the security deposit (as discussed earlier
ership occurs, the former owner who received the
by Section 92.103), the advance notice can fulfill
security deposit and the new owner are jointly liable
such a requirement.
for the return (Section 92.105). However, the former
Second, as just discussed, the letter can apprise the
owner’s liability terminates once the new owner de-
landlord of the tenant’s forwarding address if it was
livers to the tenant a signed statement acknowledg-
not attached to the lease at signing.
ing the owner has received and is responsible for the
Finally, most written leases require the tenant to
tenant’s security deposit. The notice must specify
give the landlord a 30-day advance written notice of
the exact amount of the deposit received.
move-out. This is required even though the lease is
The section applies to any change of ownership
for a fixed term. Again, this requirement can be met
by sale, assignment, death, appointment of receiver,
with such a notice.
bankruptcy or otherwise except to a real estate mort-
To make sure the check is not lost in the mail, the
gagee who acquires title by foreclosure.
tenant may wish to amend the lease by requiring the
Section 92.106 gives a directive without impos-
landlord to forward both the security deposit and the
ing a penalty. It simply requires the landlord to keep
12

21. itemized list of deductions by certified mail, return • the tenant’s reasonable attorneys' fees.
receipt requested. However, the tenant generally The landlord, not the tenant, has the burden of prov-
does not have sufficient leverage to negotiate such a ing the retention of any portion of the deposit was
change. reasonable.
The last two sections of Subchapter C describe the
tenant’s and landlord’s liability. May a landlord wrongfully fail to provide an
itemized list of deductions?
May a tenant withhold rent in lieu of the
The landlord who acts in bad faith by not provid-
security deposit? ing a written description and itemized list of dam-
A tenant is prohibited from withholding any part ages and charges
of the last month’s rent on grounds that the security • forfeits the right to withhold any portion of the
deposit will cover the balance (Section 92.108). If tenant’s security deposit,
the tenant so withholds, the law presumes the ten-
ant acted in bad faith. The tenant is liable for three • forfeits the right to bring suit against the tenant
times the amount of rent wrongfully withheld plus for damages to the premises and
the landlord’s reasonable attorneys' fees. • is liable for the tenant’s reasonable attorneys'
fees.
May a landlord wrongfully withhold a This section’s impact on tenants cannot be over-
security deposit? emphasized. Section 92.104 allows the landlord to
The landlord is prohibited from wrongfully with- deduct “damages and charges for which the tenant
holding a security deposit or failing to provide a writ- is legally liable under the lease” from the tenant’s
ten description and itemization of the deductions security deposit.
(Section 92.109). If the landlord wrongfully continues The tenant may unknowingly consent to a multi-
to do either or both for more than 30 days after the tude of charges when signing the lease. The tenant
tenant surrenders the premises, the law presumes should realize that both the provision permitting the
the landlord acted in bad faith. charge and the amount of the charge are, in theory,
The term bad faith is not defined by the statute. negotiable. Leases often require tenants to pay
However, the case law does lend some clues. In the charges for the following:
case of Reed v. Ford, 760 S.W. 2d 26, the court held • cleanup (discussed earlier)
that the term meant “ . . . an honest disregard of • late rent payments (both initial and daily)
tenant’s rights; bad faith requires intent to deprive
tenant of refund known to be lawfully due.” • violating pet restrictions
Knowledge of the law plays an important role. In • unpaid utilities
the case of Ackerman v. Little, 679 S.W. 2d 70, the • unreimbursed service charges
court held that the landlord was an “amateur lessor” • utilities for repairs or cleaning
having only one rental property. As such, the land-
lord was ignorant of the statute. This was a factor to • admitting company representatives to remove
consider in determining bad faith. resident’s telephone or TV cable services
An appellate decision in 1994, Leskinen v. Burford, • opening the apartment for resident or occupant
892 S.W. 2d 135, exonerated a landlord from liability, who has lost or forgotten key
citing the "amateur lessor" defense. The landlord • duplicate keys
returned the deposit 35 days after surrender of the
• unreturned keys
premises.
The appellate court distinguished this case from • insufficient light bulbs
a former one, Wilson v. O'Connor, 555 S.W. 2d 776, • scratches, burns, stains or unapproved holes
where the landlord was held liable. In Wilson the • removing or rekeying unauthorized locks or
landlord never returned the deposit as opposed to be- latches
ing five days late in this instance.
• reletting costs
To offset these cases, the tenant may wish to
include a copy of Section 92.109 with the forwarding • returned check charges (not to exceed $100)
address. If the security deposit is insufficient to cover the
The landlord who acts in bad faith by withholding charges and damages, the landlord may recover the
all or a portion of a security deposit is liable to the balance along with attorneys' fees, filing fees and
tenant for court costs in a judicial proceeding against the tenant.
• $100, The tenant should examine provisions pertain-
ing to security deposits before signing the lease. In
• three times the portion of the deposit wrong-
particular, does the lease require an advance notice
fully withheld and
as a condition for a refund (Section 92.103)? Exactly
13

22. what damages and charges can be deducted from the What happens if the landlord, not the
deposit (Section 92.104)? tenant, finds a satisfactory replacement?
If the tenant finds a satisfactory If the landlord secures a replacement tenant satis-
replacement, what effect does this have factory to the landlord and the replacement tenant
occupies the dwelling on or before the commence-
on the landlord's retention of the security ment date of the lease, the landlord may retain and
deposit or rent-prepayment fee? deduct from the security deposit or rent prepayment
Effective January 1, 1996, a landlord may not with- either:
hold a security deposit or a rent prepayment fee if • a sum agreed to in the lease as a lease cancella-
the tenant secures a replacement satisfactory to the tion fee or
landlord and the replacement tenant occupies the
• actual expenses incurred by the landlord in
dwelling on or before the commencement date of the
securing the replacement, including a reason-
lease (Section 92.1031[a]).
able amount for the time the landlord expended
in securing the replacement tenant (Section
92.1031[b]).
14

23. Rental Application:
Subchapter H, Chapter 92, Texas Property Code
Subchapter H of the Texas Property Code was add- is not signed, it is presumed that the notice was not
ed effective January 1, 1996, (Section 92.351 through provided (Section 92.3515[b]).
Section 92.354). The sections address a landlord-
tenant problem relating to rental application depos- How must the acknowledgment read?
its, primarily how they interact with security depos- The acknowledgment must include the following
its and when the deposit must be refunded. language or its substantive equivalent.
A list of definitions contained in Section 92.351 “Signing this acknowledgment indicates that you
includes: have had the opportunity to review the landlord’s
• Application deposit means a sum of money tenant selection criteria. The tenant selection cri-
that is given to the landlord in connection with teria may include factors such as criminal history,
a rental application. It is refundable if the ap- credit history, current income, and rental history.
plicant is rejected as a tenant. If you do not meet the selection criteria, or if you
• Application fee means a nonrefundable sum of provide inaccurate or incomplete information, your
money that is given to the landlord to offset the application may be rejected and your application fee
costs of screening an application for acceptance will not be refunded.” (Section 92.3515[c])
as a tenant.
May the acknowledgment be included in
• Applicant or rental applicant means a person
the rental application form?
who applies to a landlord for a dwelling rental.
Yes. The acknowledgment may be a part of the
• Co-applicant means a person who applies to
rental application form if it is underlined or placed
rent a dwelling with other applicants and who
in bold print (Section 92.3515[d]).
plans to live in the dwelling with other appli-
cants. Under what circumstances can the tenant
• Deposited means money deposited in an ac- get the rental application fee returned or
count of the landlord or the landlord’s agent in
a bank or other financial institution. refunded?
• Landlord means a prospective landlord to If the landlord rejects the application and the
whom a person applies to rent a dwelling. required selection or rejection criteria was not made
available to the applicant, the landlord must return
• Rental application means a written request
the application fee and any application deposit (Sec-
made by an applicant to a landlord to lease
tion 92.3515[e]).
premises from the landlord.
• Required date means the required date for If required to do so, may the landlord refund
any acceptance of the applicant under Section the application fee through the mail?
92.352.
Yes. If the applicant requests the landlord to mail
What information must accompany the the refund, the landlord must mail it to the address
furnished by the applicant (Section 92.3515[f]).
rental application when presented to the
applicant? When is an application deemed rejected?
When the applicant receives the rental application An application is considered rejected when the
form from the landlord, the landlord must provide, landlord does not give notice of acceptance to the ap-
in writing, his or her criteria for accepting or deny- plicant on or before the seventh day after the:
ing the application. The criteria may include the (1) date the applicant submits a completed rental
applicant’s criminal history, previous rental history, application to the landlord on a form furnished
current income, credit history, or failure to provide by the landlord or
accurate or complete information on the application
(2) date the landlord accepts an application deposit
form (Section 92.3515[a]).
(Section 92.352).
Must the tenant verify receipt of the criteria The landlord cannot reject one co-applicant with-
form? out rejecting all co-applicants.
Yes. The applicant must sign an acknowledgment
form indicating the notice was provided. If the form
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24. What if the seventh day falls on Saturday, What is the landlord’s liability for not
Sunday or a state or federal holiday? refunding the application fee or deposit?
The required compliance date is extended to the A landlord who in bad faith fails to refund an appli-
end of the next day following the Saturday, Sunday cation fee or deposit (presumably within the seven-
or state or federal holiday on which the deadline falls day period) is liable for $100, three times the amount
(Section 92.353[c]). wrongfully retained and the applicant’s reasonable
attorney’s fees (Section 92.354).
To whom must the landlord communicate The term bad faith is not defined. Presumably the
acceptance or rejection of the application? same definition used in the security deposit section
Unless the applicant requests otherwise, a landlord applies (Section 92.109).
is presumed to have given notice of acceptance or
rejection depending on the mode of communication
May any of the requirements imposed
(Section 92.353). If by telephone, the message must on landlords for providing the criteria
be given to the applicant, co-applicant or a person standards and refunding the application fees
living with the applicant either on or before the be waived?
required date. If by mail, the notice must be by U.S.
No. Any provision in a rental application that pur-
mail, addressed to the applicant and postmarked on
ports to waive a right or exempt a party from liabil-
or before the required date.
ity or duty under the requirements governing rental
If the applicant requests acceptance or rejection by
applications is void (Section 92.355).
mail, the acceptance or refund must be mailed to the
address furnished by the applicant.
The statute is explicit concerning the date an ap-
plication is deemed rejected. However, the statute
does not state the exact date the refund is due.
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