Repairs: The Tenant’s Right and the Landlord’s Duty

Tenants have the right to have any condition that threatens their health or safety repaired. Subchapter B of Chapter 92 of the Texas Property Code (§92.051 – §92.061), describes the process a tenant must follow to enforce repair rights and provides specific remedies for a tenant if the landlord refuses to make the repairs. By giving the proper notices, a tenant can obtain repair remedies as soon as legally possible. Those remedies, described below, depend on the repair problem.

Conditions requiring repair fall into two categories: ones that threaten the health or safety of an ordinary tenant and ones that do not. An example of a repair that is not a threat to health or safety is a dishwasher or garbage disposal that does not work properly and is not dangerous in some other way.

For tenants living anywhere in Texas, the landlord must provide:

  1. A dwelling that is decent, safe, and sanitary;
  2. Repairs of conditions that threaten the health or safety of an ordinary tenant;
  3. A device in good working condition to supply hot water of a minimum temperature of 120° Fahrenheit;
  4. Smoke detectors; and
  5. Secure locks on all doors and windows, including a keyless bolting device. See ATC’s brochure, Locks and Other Security Devices, for a complete list of security devices required by law.

The Austin Housing Code specifically requires that all residential dwellings in the city of Austin have:

  1. Heating facilities capable of maintaining a room temperature of 70° Fahrenheit;
  2. Hot water supplied to plumbing fixtures at a temperature of not less than 110° Fahrenheit; and
  3. A kitchen sink, a shower or bathtub, a toilet, and hot and cold water.

If the rental unit does not meet state/city standards or other conditions exist which threaten the health or safety of an ordinary tenant, the procedure described below should be used. Follow the proper process of requesting repairs is essential to obtaining the repairs or to having remedies if the landlord refuses to make them. Please read these instructions carefully before requesting repairs.

Procedure for Requesting Health and Safety Repairs
1. All rent must be paid.
A tenant who is behind in rent or withholds rent because repairs have not been made may be evicted and forfeits all rights to have repairs made until the rent is paid. The only time a tenant may withhold rent is when the tenant has given the required notices and is exercising the right to repair and deduct. See the section, “Repair and Deduct.”

2. If a landlord does not respond to telephone or oral repair requests, the tenant should send a letter by certified or registered mail to the landlord and/or manager which includes:

3. After the deadline given in the first letter has passed and if the landlord has not made a diligent effort to make the repairs, a tenant should write a second and final notice that is the same as the first.
This second notice DOES NOT have to be sent if the first notice is sent by certified mail, return receipt requested or by registered mail (available through the post office). If the first notice is delivered by any other method, then a second notice MUST be sent.

4. After the landlord has been notified of the needed repair and refused to respond or remedy the problem, the tenant may file suit in justice court without an attorney and seek an order for the repair, reduction in the rent, civil penalty of $500 plus one month’s rent, actual damages, and attorney’s fees if an attorney is hired.

5. Keep copies of the letter(s).
Having proof that the landlord received the request for repairs is always important. It is best to send it by certified or registered mail or to hand-deliver the request. If the letter is delivered in person, the tenant should take a witness who can attest to the fact that the letter was delivered or get a written receipt of its delivery from the landlord.

The Austin Tenants’ Council has a Self-Help Repair Packet, which includes form letters that can be used to make proper repair requests.

Casualty Loss
If a needed repair is the result of an insured casualty loss, such as fire, smoke, hail, explosion, or something similar, the landlord does not have to make the repair until the landlord receives the insurance proceeds.

If the casualty loss is not caused by the negligence or fault of the tenant or a guest of the tenant and the rental property is totally unusable for residential purposes, either the tenant or the landlord may terminate the lease by giving written notice any time before repairs are completed. If the lease is terminated, the tenant is entitled to a prorated refund of the rent and the return of the security deposit in accordance with the security deposit law.

If the casualty loss is not caused by the negligence or fault of the tenant or a guest of the tenant and the rental property is partially unusable for residential purposes, the tenant is entitled to a reduction in rent in an amount equal to the extent the premises are unusable. However, only a county or district court can award this reduction and the tenant is not entitled to a reduction in rent if the lease prohibits it.

If the Landlord Does Not Make Repairs
If all required notices have been sent, and the landlord has not made a diligent effort to make health and safety repairs before the final deadline, then the tenant may, according to the Texas Property Code:

1. Terminate the lease and move.
The tenant should give the landlord a written notice that the tenant is terminating the lease. The notice should give a date by which the tenant will move. The tenant will be entitled to a refund of the security deposit in accordance with the law and to a refund of the rent for the remainder of the month after the tenant leaves. The tenant may also deduct the security deposit from the rent. A tenant who moves is also entitled to the other remedies listed below, except the court order directing repairs and the court-ordered partial rent reduction when taking the landlord to court.

and/or

2. Take the landlord to justice, county, or district court where an order may be issued:

and/or

3. Repair and deduct as outlined below.

Repair and Deduct
The repair and deduct law is complicated, and ATC recommends that a tenant get further assistance before exercising this remedy. A tenant should contact either the Austin Tenants’ Council or an attorney.

To exercise the right to repair and deduct, two things must be done:

  1. The tenant must have a local housing, building, or health official or other official having jurisdiction notify the landlord in writing that the conditions affect the material health or safety of the tenant (but see exceptions described below); and
  2. The tenant must deliver the required notices requesting the repair as outlined above. However, the final notice given to the landlord must state the tenant’s intent to exercise the right to repair and deduct and include a reasonable description of the intended repairs. (NOTE: If the tenant sends the first request for repair by certified or registered mail, then a second notice is not required. The first notice is also the final notice and must state the tenant’s intent to exercise the right to repair and deduct and include a reasonable description of the intended repairs.

In Austin, the official having jurisdiction is usually a building inspector from the City of Austin’s Building Inspection Department. See the section, “For Assistance in Enforcing Repair Rights,” below. If these conditions are met and the landlord still fails to make the repair or remedy within a reasonable time, a tenant may have the repairs made and deduct the costs from the monthly rent by using the following procedure.

The tenant’s deduction for the cost of the repair or remedy may not exceed the amount of one month’s rent or $500, whichever is greater. 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 of the dwelling and not the actual amount the tenant pays.

In two situations a tenant may exercise rights to repair and deduct without having an official send verification that the condition is a threat to health or safety:

  1. If 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; or
  2. If the landlord has agreed to supply potable (drinking) water to the tenant’s dwelling and the water service to the dwelling has totally ceased.

If the conditions involve sewage or flooding, the tenant may repair and deduct immediately after giving notice. If the condition involves the lack of water or inadequate heat or cooled air, the tenant may repair and deduct three days after giving the final notice (provided that an official has sent verification that the condition is a threat to health or safety). (See NOTE above about what constitutes a final notice.)

Repairs must be made by a company, contractor, or repairman listed in the yellow pages or business pages of the telephone directory or in the classified advertising section of a local newspaper. 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 interest.

Repairs must also be made in compliance with applicable building codes, including obtaining a building permit when required. When deducting the cost of repairs from the rent payment, the tenant shall furnish the landlord, along with the balance of the rent, a copy of the repair bill and the receipt for its payment.

Procedure for Requesting Repairs That Are Not a Threat to Health or Safety
1. All rent must be paid.
A tenant who is behind in rent or withholds rent because repairs have not been made, may be evicted and forfeits all rights to have repairs made until the rent is paid. The only time a tenant may withhold rent is when the tenant has given the required notices and is exercising the right to repair and deduct. See the section, “Repair and Deduct.”

2. A letter should be written to the landlord and/or manager which includes:

3. Keep a copy of this letter
The letter may be sent to the landlord by certified mail, return receipt requested (available through the post office), or hand-delivered to the landlord or manager. It is a good idea to send a second copy by first class mail. If the letter is delivered in person, the tenant should take a witness who can attest to the fact that the letter was delivered.

If the landlord has not made a diligent effort to make repairs after receiving written request, then the tenant will need to go to court to enforce his rights. The justice of the peace court is suitable for a tenant who wishes to recover only monetary damages. If the tenant wants to be released from the lease or wants an order for the landlord to make the repairs, suit must be filed in county or district court.

A Landlord May Not Retaliate
Subchapter H of Chapter 92 of the Texas Property Code (§92.331 – §92.335) prohibits a landlord from retaliating against a tenant by filing an eviction proceeding, depriving the tenant of the use of the premises, decreasing services to the tenant, increasing the tenant’s rent, terminating the tenant’s lease, or in bad faith interfering with the tenant’s rights under the lease for six months from the time the tenant in good faith takes any of the following actions:

  1. Gives a landlord a notice to repair or exercises a rememdy under Chapter 92 of the Texas Property Code;
  2. Attempts to exercise against a landlord some right or remedy granted to the tenant by lease, municipal ordinance, or federal or state statute; and/or
  3. Complains to a government entity, a public utility, or a civic or nonprofit agency about a building or housing code violation or utility problem.

Retaliation by the landlord is a defense to an eviction. However, the landlord may evict the tenant if the landlord can prove that the eviction is not in retaliation (e.g. if the tenant does not pay full rent or has damaged the property). Also, the landlord may increase the rent or decrease services if it is part of a regular pattern of rent increases or service reductions for all units in a multi-dwelling project.

If a court finds that a landlord retaliated against a tenant, the tenant may recover one month’s rent plus $500; actual damages including moving costs if the tenant has moved; and court costs and attorney’s fees less any rent or other sums the tenant owes the landlord.

In Austin, a landlord who retaliates against a tenant for calling the building inspection department may also face criminal penalties.

For Assistance in Enforcing Repair Rights
If the landlord does not respond to repair requests, a tenant may want to call the local building inspection department for an inspection of the rental unit. A building inspector will be sent to investigate complaints. The inspector will then send an assessment of conditions to the owner. The tenant should request a copy of this report from the building inspector. In Austin, call the inspection department at 311 or 974-1855, and an inspection will be performed free of charge. The local health department inspector and/or fire marshal may also be contacted, if appropriate.

The Austin Tenants’ Council has two programs which assist tenants who live in Austin in obtaining repairs:

  1. The Telephone Counseling Program advises tenants and landlords about their rights in Texas. The telephone number for the counseling line is 512-474-1961.
  2. The Renters Rights Assistance Program (RRAP) is a mediation program for low- to moderate-income tenants. RRAP provides assistance to tenants who need repairs which are a threat to their health or safety. To qualify for RRAP, a tenant must be income eligible and current on rent. Through this program, a tenant will be assisted in enforcing repair rights under the Texas Property Code repair law. The telephone number for this program is 512-474-7006.

The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.

Austin Tenants’ Council • 1640-B East 2nd Street • Austin, TX 78702 • 512.474.7006