TENANTS' RIGHTS HANDBOOK

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Page 1

TENANTS'

RIGHTS

HANDBOOK

Prepared as a Public Service

by the

Texas Young Lawyers Association

and distributed by the

State Bar of Texas

1998

Page 2

OREWORD

This handbook is for residential tenants and is pub-

lished as a public service by the Texas Young Lawyers

Association. It is our sincere hope that distribution and

use of this handbook will explain many of the questions

and legal issues that arise in a landlord-tenant relation-

ship.

This handbook is intended to provide general guid-

ance only. It is not a substitute for the advice of a

lawyer. The Texas Young Lawyers Association hopes,

however, that by providing Texas residents with a better

understanding of their legal rights and remedies, this

handbook will help prevent many legal problems from

ever arising.

Page 3

ENANTS

' R

IGHTS

ANDBOOK

Texas Young Lawyers Association

Public Service Programs Committee

Š1985, 1987, 1991, 1994, 1998 Texas Young Lawyers Association.

Page 4

ABLE OF

ONTENTS

OVERVIEW

.................................................................1

Warning.....................................................................1

SELECTING YOUR NEW HOME

............................2

THE LEASE AND IMPORTANT PROVISIONS

.....3

Rent and Late Fees.........................................................4

House Rules ...................................................................5

Landlord's Right to Enter ...............................................6

Repair Language ............................................................6

Occupants and Visitors...................................................7

Lease Time Period and Month-to-Month Leases...........7

Changing Terms in the Middle

or End of a Lease ......................................................8

MOVING INTO YOUR NEW HOME

.......................9

TENANT RIGHTS AND REMEDIES

.......................9

Repairs and Improvements.............................................9

Exceptions to the Landlord's Duty to Repair

.........10

Procedure for Obtaining Repairs

............................11

Exception For Major Damage

................................15

Retaliation for Requesting Repairs

.........................15

Withholding Rent Is Almost

Always a Bad Idea

.............................................16

Improving or Changing the Premises

.....................16

Condemned or Closing Property

............................17

Locks and Security Devices .........................................18

Landlord Must Rekey Between Tenancies

...............18

Procedure and Remedies for Lock Problems

..........18

Smoke Detectors ..........................................................19

Landlord's Duty to Inspect and Repair

...................20

Procedure and Remedies for Smoke

Detector Problems

.............................................20

Tenant Disabling of Smoke Detector

......................20

Security Deposits .........................................................21

Landlord Must Refund or Explain

Within 30 Days

..................................................21

Exceptions and Miscellaneous

................................22

Hold Deposits

.........................................................22

Don't Use Deposit As Last Month's Rent

................23

Finding Out Who Owns and

Manages the Premises.............................................23

Discrimination..............................................................24

Serving Court Papers on Your Landlord .....................25

TENANT DUTIES AND CONSEQUENCES

..........25

Lockouts.......................................................................25

Utility Disconnection ...................................................26

Landlord Intentionally

Disconnects the Utility

......................................26

Utility Cutoff for Landlord's

Failure to Pay Utility Company

.........................28

Page 5

Landlord's Right to Remove Property..........................28

Landlord Cannot Remove Own Property

................28

Landlord May Remove Some Tenant Property

.......29

Subleasing ....................................................................30

Cotenancy.....................................................................31

Eviction ........................................................................31

Procedure and Suggestions

.....................................31

Appealing an Eviction Case

....................................34

TERMINATION AND MOVING OUT

...................35

By Agreement ..............................................................35

The Lease Ends ............................................................36

End of Express Lease Term

.....................................36

Month-to-Month Terminations

................................36

Exceptions to Failing to Renew or

Terminating a Month-to-Month

.........................36

Termination for Landlord Failures or

Military Transfers ...................................................37

Termination for Tenant Breach ....................................37

Change in the Landlord Usually Does

Not Terminate the Lease.........................................38

Disagreements About Terminations.............................38

Consequences for Terminating Without Excuse ..........39

Moving Out ..................................................................39

Page 6

OVERVIEW

This handbook is designed to assist residential ten-

ants in their search for answers to actual legal problems.

A residential tenant is a person who has leased or rented

a house, duplex, apartment, or other room for use as a

permanent residence or home. This handbook does not

address laws concerning boarding houses or motels,

commercial tenancies, or mobile homeowner rights,

although some of the legal concepts contained in this

handbook may be applicable. Most of the legal material

found in this handbook can be located in sections 24,

54, 91 and 92 of the Texas Property Code, which is

available in your local law library and can be found in

most public libraries.

Many times, the law can only be enforced in court.

Most disputes never reach the court and are settled

between the parties; justice can be expensive, risky, and

slow. Therefore, courteous, professional negotiation is

usually the fastest, most efficient solution in any dis-

pute. The law, as interpreted in this handbook, merely

sets forth the basic guidelines for negotiation. Often,

establishing or joining a tenant organization is an attrac-

tive option because such organizations encourage land-

lords to negotiate fairly. Also, a tenant organization may

get more attention from the media and local elected offi-

cials than individual tenants, and the fear of negative

publicity or pressure from these officials can affect a

landlord's actions.

WARNING:

This handbook is not designed to make

the reader an expert in landlord-tenant law, but is merely

intended as a guide to the general rights and responsibil-

ities of the tenant and landlord in various situations. If

you plan to terminate your lease, withhold rent, repair

and deduct, use your deposit for rent, sue your landlord,

or take other serious action based on what you have read

in the Property Code or this handbook, please consult an

attorney or tenant association to ensure all the legal

requirements have been met. This handbook does not

address every consideration that may be applicable in a

given situation. Also, interpretations of statutes routine-

ly change over time. The judgment of a court will also

depend on the exact circumstances of the individual

case. If you improperly terminate the lease, withhold

rent, sue, etc., the landlord may be entitled to collect

damages and attorney's fees from you. You also need to

be aware of the practical considerations of any lawsuit.

For example, this handbook indicates the specific

instances where you can terminate a lease agreement

and move out. Even though you may have correctly ter-

minated your lease, if your landlord does not agree with

your decision, he may take action against you (including

Page 7

withholding your deposit and giving a statement to a

credit reporting agency). Although the landlord's actions

may later be deemed illegal, you may have to go to

some trouble to achieve justice. Sometimes a landlord

may try to retaliate against you by refusing to renew

your lease, trying to terminate a month-to-month tenan-

cy, or raising your rent. The law specifically provides

you a cause of action for certain kinds of retaliation.

See

"Retaliation for Requesting Repairs."

To find the name of an attorney, call your local ten-

ant association, bar association, or other lawyer referral

service, all of which can usually be found by looking in

your telephone directory. You can also call the Texas

State Bar Referral Service at 1-800-252-9690. If you

have a very low income, you may be eligible to receive

free legal assistance from a legal services agency, and if

you decide to file a suit you may also be able to file a

statement describing your financial status instead of

having to pay court costs. If you need the name and

number of the legal services agency in your area, you

can call Texas Lawyers Care at 1-800-204-2222, ext.

2155. You may also decide to represent yourself in Jus-

tice of the Peace Court. Justices of the Peace routinely

decide suits filed by parties who do not have lawyers. It

is still a good idea to get some tips on the best way to

represent yourself from an attorney or your local tenant

association.

SELECTING YOUR NEW HOME

The most important thing you can do to avoid has-

sles with your house or apartment is to get started on the

right foot. Many problems can be avoided if you do a

few things before you agree to rent, put down a deposit,

or sign a lease.

Look over the outside of the building. Are the stairs,

outside walls, roof, sidewalks, and grounds around it in

good shape? Do the buildings need to be painted? Do

the apartments have enough parking spaces? If there is a

laundry room for all of the residents, look it over.

Inspect the swimming pool. Find out what the neighbors

are like and what they say about the landlord. Ask

whether they ever had something that needed to be

repaired by the landlord. Was it fixed quickly? Have

they ever had any disputes with the landlord? Do they

have roaches? Has anyone in the area had any problem

with vandalism, burglaries, rape, muggings, or other

crimes? What is the area like at night? Are the grounds

well lit?

NEVER sign a lease or even put a deposit down on

an apartment or house until you have seen the exact

place you will be renting. Some apartment complexes

will show you a model apartment. Often, the apartment

Page 8

you actually get will not be as nice as the model. When

you inspect the place you may rent, look it over careful-

ly. Make sure the place does not smell bad. This could

signal mildew caused by roof or plumbing leaks. Make

sure the stove works. Check the refrigerator. Turn on the

dishwasher. Check the garbage disposal. Turn on the

water faucets and make sure the hot water works. Flush

the toilet. Test the heating and air conditioning units.

Open all of the cabinets and drawers in the kitchen and

bathroom. Look for signs of insects or rodents. Look

carefully at the carpet. Check around the windows. Are

there any signs of leaks or water damage? Does the

house or apartment have working smoke detectors? Test

all of the lights.

Carry a pen and paper with you. Make a list of any-

thing that is damaged or that needs repair. Take a copy

of your list to the landlord and ask to have all the items

repaired. Be sure to keep a copy of this list yourself. If

the landlord promises to fix the items, get the promise in

writing (or better yet, refuse to sign the lease or give a

deposit until the items are repaired to your satisfaction).

Finally, it is wise to check out the landlord before you

agree to rent or put down a deposit. If the city has a ten-

ant association, better business bureau, or consumer pro-

tection agency, call and find out if other people have

complained about the landlord, complex, or manage-

ment company. Ask if the landlord owns any other

rental properties. If so, check into those too.

THE LEASE AND

IMPORTANT PROVISIONS

The importance of the lease cannot be overempha-

sized. Your basic rights and duties, as well as those of

your landlord, will be found in the lease. If you violate

the lease, the landlord may have the right to ask you to

move and hold you liable for future rent payments and

other damages. Many people sign the lease without

carefully reading it. Often the lease consists of a long

form, which the landlord will say is the "standard" form

that everyone signs. Do not sign a lease until you have

read it and feel you understand it. A lease is valid as

soon as you sign it, and you usually cannot back out if

you change your mind.

See

"Consequences for Termi-

nating Without Excuse."

You can modify a lease before you sign it. The law

permits you to make almost any change in the terms of

the lease, as long as the landlord agrees to the change.

Do not be afraid to propose changes in the lease. Make

the changes in ink and make sure that you and the land-

lord initial the changes. Do NOT leave the manager's

office without a copy of the final lease agreement. If you

get into a dispute with your landlord, you will find it

Page 9

difficult to rely on verbal promises that have not been

put in writing. Both you and your landlord should sign

and date all pages separate from the lease agreement. If

you have agreements about pets, replacing the carpet,

painting the walls, or who pays the utilities, such agree-

ments should all be stated clearly in writing. Anything

you want fixed, replaced, or repaired should be request-

ed in writing. It would be wise not to rent from a land-

lord who will not put the agreement in writing.

ENT AND

ATE

EES

A landlord can charge any amount he wishes for

rent. There are no limits to increases, as long as the

lease is expired (or will soon expire) and a proper notice

is given.

See

"Changing Terms in the Middle or End of a

Lease."

Generally, rent is due on the first day of the month.

Many leases provide a "grace period" in which rent can

be paid late without penalty. Always get receipts and

keep them as long as you live there, especially if you

pay by cash or money order. If a landlord claims he did

not receive a money order from you and you do not have

a receipt, you can run a "trace" on the money order to

determine who may have cashed it by contacting the

company that issued the money order. If any of the land-

lord's employees cashed it, you are probably not respon-

sible for the rent. It may take several weeks, so be sure

to start the process quickly. Sometimes a money order

company will replace money orders that have not been

cashed after a few months.

A landlord must accept cash rental payments, unless

the written lease provides otherwise. If you pay your

rent in cash, your landlord must provide you with a

written receipt. The landlord must also keep a record of

the date and amount of each payment. If a landlord fails

to provide receipts or keep a record book, you can file

suit and may be entitled to a court order that: (1) directs

the landlord to comply with the law; (2) awards you the

greater of one month's rent or $500 for each violation;

and (3) awards you court costs and reasonable attorney's

fees. A landlord can refuse to take personal checks if it

is in your lease.

A landlord can charge a reasonable late penalty if

you pay rent after the due date according to your lease

agreement. If you do not pay your rent on the due date

(or beyond the grace period), the landlord usually has

the discretion to either terminate the lease agreement or

accept the rent and the appropriate late fee. If you offer

to pay the rent and appropriate late fee, and the landlord

refuses to accept it, you may still have a chance in court.

You should read the lease carefully and argue that you

offered to cure the problem according to the lease.

Page 10

A court may also consider your rent to be paid on time

if you have established a clear and undisputed pattern of

acceptance of late payment by your landlord. You

should argue that if your landlord no longer wished to

accept late payments, he should have given you some

advance notice.

See

"Termination for Tenant Breach." If

a landlord ever refuses to accept your rent, be sure to

offer the money in person and with a witness (not just

over the phone).

Although there are no specific legal limits, a late fee

should not be more than $35 for being one day late in a

typical lease where rent is $400 per month. Landlords

can also charge additional fees for each day the rent is

late. Generally, the total amount of late fees in any one

month should not be more than half a month's rent. But

again, a court could consider higher fees to be accept-

able or lower fees to be unacceptable, there is no sure

answer. A landlord sometimes deducts late fees from a

tenant's rent and then claims the tenant is behind on rent

again. Then the landlord charges late fees all over again.

There are no state laws that specifically address these

activities. However, a landlord may be in violation of

the Deceptive Trade Practices - Consumer Protection

Act if the landlord charges extremely excessive late

fees. A court may also refuse to evict a tenant if the ten-

ant only has refused to pay an unreasonable late fee.

[Tenants in Section 8, government-owned or govern-

ment-subsidized dwellings have strictly monitored rent

that varies with their income level and have additional

protections for unfair late fees.]

OUSE

ULES

House rules or apartment regulations are usually a

part of the lease even though they are not printed on the

lease form itself. Before you sign the lease, ask for a

copy of the rules. If the rules have not been written

down, ask the landlord to write them down and to sign

and date the document. Having written rules will pre-

vent the landlord from changing the rules in the middle

of your lease. In general, most house rules are enforce-

able as long as they do not illegally discriminate.

See

"Discrimination." Rules may be unenforceable if they

are completely unreasonable. For example, a broad cur-

few on adults has been considered unreasonable by

some lower courts. If you feel a landlord's rules are

unreasonable, it may be safer to follow them temporari-

ly and move rather than attempt to challenge them,

unless you have an attorney or tenant organization to

back you up.

See

"Overview."

Note that a landlord can fail to renew a lease or may

terminate a month-to-month lease by giving a 30-day

notice for almost ANY reason, and a court will probably

Page 11

uphold that decision. There are some exceptions.

See

"Termination and Moving Out" and "Exceptions to Fail-

ing to Renew or Terminating a Month-to-Month." [Ten-

ants in Section 8, government-owned or government-

subsidized housing have more protections against

unreasonable evictions and rules. These tenants should

contact their local housing authority or HUD office to

complain of any unfair rules.]

ANDLORD

IGHT TO

NTER

Study the lease carefully to determine the circum-

stances under which the landlord may enter your home.

Unless the lease agreement says the landlord can enter

your apartment or house, he has NO right to do so,

except perhaps in emergencies and for routine inspec-

tions or repairs when you are given advance notice. In

every residential lease (oral or written) a tenant has an

implied right to peaceable, quiet enjoyment of the

premises. A tenant also has a right of privacy in his own

home. A landlord should not violate either of these

rights by entering without the tenant's permission or

before giving advance notice, regardless of what the

lease says.

You may want the right to have your own keyed lock

on the door of the apartment or house. If you want your

own keyed lock, be sure you provide for this in your

lease or get written permission from your landlord.

Also, a dwelling must be equipped with a keyless bolt-

ing device on each exterior door of the dwelling without

necessity of request by the tenant. This will prevent

improper entries while you are home.

See

"Locks and

Security Devices." You may want to consider joining or

establishing a tenant organization; encouraging manage-

ment to allow all tenants to have their own keyed lock

(or change who has access to the keys); sending man-

agement a letter warning them of your intention to file

suit against them for any property stolen if there has

been no evidence of forced entry; or file suit for breach

of the implied covenant and right of privacy described

above.

But see

"Warning."

EPAIR

ANGUAGE

You are under no duty to repair or remedy most con-

ditions that affect your health and safety unless you

cause the damage through abnormal use. Make sure the

lease does not say that you give up your rights requiring

the landlord to make these repairs. Although such claus-

es are often considered void, it is better to modify the

lease than rely on the courts to resolve a dispute.

See

"Exceptions to the Landlord's Duty to Repair."

Texas law does NOT require a landlord to repair or

Page 12

remedy a condition that does not affect your health or

safety, such as a defective dishwasher. Therefore, you

should read the lease to see if the landlord promises to

repair such problems. If he does not, you should ask him

to change the lease to include repairing these problems.

See

"Repairs and Improvements."

CCUPANTS AND

ISITORS

The landlord can limit the number of occupants who

live in the house or apartment. The maximum number

should depend on the number of bedrooms and the age

of the occupants. Texas law generally limits occupancy

to three adults (persons over 18) for each bedroom of

the dwelling. The landlord can set lower standards, as

long as he does not illegally discriminate. For example,

if a couple living in a one-bedroom apartment has a

baby in the middle of their lease, the landlord probably

cannot require the couple to move to a two-bedroom

apartment because this may unfairly penalize them

merely because they had a child. A landlord generally

cannot limit visitors as long as they do not disturb other

residents or violate some other provision of the lease.

However, a tenant should be careful not to have the

same visitor spend the night too many times in a row

without the landlord's permission, otherwise, the land-

lord may consider the visitor as an unauthorized occu-

pant. Certainly, a visitor should not get mail or other

deliveries at the premises, or this will surely arouse sus-

picion. Too many visitors (even as few as three an hour)

might be incorrectly perceived as illegal drug activity.

Although the landlord has the burden to prove a tenant

has violated the lease in an eviction case, you may be

wise to avoid these disputes from arising in the first

place. Therefore, you should consider explaining the sit-

uation to the landlord to remove suspicion rather than

becoming offended by a landlord's questions and not

cooperating.

EASE

IME

ERIOD AND

ONTH

-M

ONTH

EASES

Normally, a written lease will last for a fixed period

of time, typically six months or one year. The advantage

of having a lease is that it protects you from rent

increases during that time. The landlord has the advan-

tage of being assured he will receive rent for that period.

One disadvantage is that you are obligated for the rent

for the entire lease period whether you live there or not,

unless the landlord substantially violates the lease or

agrees to let you out of the lease.

If you never had a written lease agreement or your

written lease has expired, you are probably a month-to-

Page 13

month tenant. A month-to-month lease continues from

one month to the next, as its name implies, until either

you or your landlord gives a one-month advance notice

of termination. (If you pay rent weekly, then you are a

week-to-week tenant and only one week's notice is

required.) No matter who terminates the lease, you

should always keep a copy of the notice of termination

as proof.

See

"Termination and Moving Out."

HANGING

ERMS IN THE

IDDLE OR

ND OF A

EASE

During the lease, one party cannot change any terms

of the lease agreement without the other party's consent.

If an agreement is reached, it should be made in writing,

dated, and signed by both parties. Unless an agreement

is reached, the parties must abide by every term in the

lease agreement (including any house rules). However,

one month prior to the end of the lease, either party can

propose changes to the lease agreement. For month-to-

month leases, either party can give a 30-day advance

notice of any change at any time. Unless the other party

clearly terminates (or fails to renew the lease), then that

party might be presumed to have accepted the new

terms offered by the other party. For example, if a land-

lord sends you a notice 30 days before the end of the

lease that the rent will be increased by $50, you will

have to pay the increased rent the first month of the new

lease (a written notice may not be required). The same

is true if you are on a month-to-month lease and the

landlord sends a notice on October 31 that the rent will

be increased by $50 for December. If you do not want to

pay the increased rent, try to negotiate with the landlord

and indicate you will not renew the lease unless the rent

is lower. If the landlord refuses, then you must indicate

(preferably in writing) that you will not renew the lease

and then give the landlord 30 days advance notice of ter-

mination. Otherwise, you will be responsible for the

higher rent. If you do not pay, then you will be behind

on rent. In this case, a landlord will have rights he can

use against you. In other words, if your landlord indi-

cates to you 30 days prior to the end of the lease that the

rent will be increased the month after the end of the

lease, you may be responsible for the increased rent

whether or not you sign anything or orally agree to the

new amount. A court may find that you accepted the

landlord's offer by your conduct alone. However, as a

tenant you should not assume anything, as a court will

decide each situation differently. You should always get

agreements in writing and signed by the owner or man-

ager.

See

"Tenant Duties and Consequences."

Page 14

MOVING INTO YOUR NEW HOME

When you move into your new home make sure all

the repairs your landlord promised have been complet-

ed. If some of the repairs have not been made, contact

your landlord immediately. If the landlord fails to make

the repairs he promised before you signed the lease, he

may be liable for violating the Texas Deceptive Trade

Practices Consumer Protection Act. Contact a lawyer

or tenant association for more details. You should also

make a written list noting the condition of the apartment

on the day you move in. This list will help you avoid

disputes when you move out, and may also be crucial in

getting back your security deposit. Make a note of every

spot on the carpet and every damaged item in the place.

Give a copy of the list to the landlord and keep a copy

for yourself. Your landlord has a duty to test all smoke

detectors to verify they are in working order when you

move in. The landlord also has the duty to rekey the

locks between tenants.

TENANT RIGHTS AND REMEDIES

This section of the handbook discusses tenant rights

and remedies provided by Texas law. Unless otherwise

indicated, a lease cannot remove or diminish any right

or remedy described below. However, your lease may

provide additional protections and remedies. So, be sure

to read your lease first to see if your problem is

addressed.

EPAIRS AND

MPROVEMENTS

Texas law requires landlords to make a diligent effort

to repair anything that materially affects the physical

health or safety of an ordinary tenant. Examples of

things that materially affect the health and safety of an

ordinary tenant are sewage backups, roaches, rats, no

hot water, faulty wiring, roof leaks, and sometimes lack

of heat or air conditioning. If the problem violates a pro-

vision of your city's building, health, or fire code, then it

is more likely to be considered a health or safety risk.

Problems such as broken dishwashers, walls that need

painting, unsatisfactory draperies, or grass that needs

cutting are generally not covered by state law. However,

your lease agreement may require the landlord to fix

these problems as well. Be sure to read your lease to

find out. If you are uncertain how to classify the prob-

lem, consult a lawyer, health or building inspector, or

tenant association.

It is possible that a landlord's failure to repair prob-

lems that do not affect health or safety (such as a broken

dishwasher) may be addressed as a breach of the lease,

Page 15

even if the lease fails to mention repairs. A court may

find that a landlord is still responsible if the landlord

clearly implied he would fix anything that broke in the

apartment. Texas law does not provide an easy-to-use

remedy, so careful and courteous negotiation is the best

practical solution. The remaining sections of "Repairs

and Improvements" will only discuss the requirements

and remedies provided by state law as described above.

Although some of the general advice may be applicable

in other situations, a tenant should not assume that ANY

of the remedies discussed below will be available.

[Tenants in Section 8, government-owned or govern-

ment-subsidized housing have additional rights concern-

ing repairs. A local housing authority administers many

of these programs and can inspect and "abate" (stop)

paying its portion of the rent on the tenant's dwelling

until the repairs are completed. If the landlord files for

eviction, the tenant may have defenses. The landlord

may not be able to evict based on nonpayment of the

housing authority's rent as long as the damage was not

caused by the tenant's abnormal or reckless use of the

premises. The tenant should call his housing authority,

attorney, or tenant association for more information.]

Exceptions to the Landlord's Duty to Repair

Texas law does not require a landlord to repair a con-

dition caused by the tenant or a guest, family member,

or lawful occupant of the tenant (unless the condition

was caused by normal use of the premises). The law

also specifically provides that the landlord need not fur-

nish security guards for an apartment complex, even if

the complex is unsafe, although better lighting, locks,

fencing, and other security measures could be required

in some situations. The law also exempts landlords who

only have one rental unit. Texas law allows these small-

er landlords to change their duty to repair entirely if the

unit was free of health and safety risks when the tenant

moved in (and the landlord was unaware that there

would be problems during the lease). In such a case, if

the landlord wants you to repair items that would nor-

mally be his responsibility, he must put a specific provi-

sion in your lease to this effect and it must be underlined

or in bold print.

Any landlord may require a tenant to pay for broken

windows, screens, and doors if the provision is specific

and underlined or bolded in a written lease regardless of

who broke them, assuming the window or door did not

break from normal use and the landlord did not cause

the damage. The landlord also may require the tenant to

repair damage caused by leaving windows and doors

open, and from sewage backups if a toy or other

improper item is found in the line that exclusively leads

to the tenant's unit and is the cause of the backup, if the

Page 16

provision is specific and underlined or bolded in a writ-

ten lease. Otherwise, the landlord must repair these

items at his expense within required time limits and

guidelines.

Other than these exceptions, a landlord must provide

you with a home that is free from health and safety

risks, regardless of what is in the lease. If a landlord

intentionally tries to change this duty in your lease

(other than the exceptions stated above), you may have a

claim against him for actual damages, one month's rent

plus $2,000, and reasonable attorney's fees. The law pre-

sumes the landlord acted without knowledge, so give

your landlord a written notice (and keep a copy) if he is

violating the law, and ask him to change the lease. If he

refuses, you may have a stronger claim against him.

Procedure for Obtaining Repairs

Tenants with problems requiring landlord repairs

must take the following steps:

1. Always Give Notice

You must give notice of the problem to the person to

whom you pay rent. Phoning is usually the fastest way,

but you should also give the notice in writing and keep a

copy for yourself as proof. Be sure to date the notice.

Many leases require that all requests for repair be in

writing. If you mail your rent payments, you can mail

the notice to the same address. Sending the notice by

certified mail provides the best proof that it has been

received; however, this is not required.

2. Pay Your Rent

The landlord is not obligated to make repairs unless

you are current on your rent. You must perform your

obligation to pay rent or you cannot force the landlord

to perform his obligation to repair. Your rent must be

current at the time you give the first notice, otherwise

that notice may not have any legal effect.

3. Wait a Reasonable Time

If the above conditions are met, the landlord has a

"reasonable time" to fix the problem after receiving your

initial notice. The length of time considered reasonable

will depend on the circumstances. The nature of the

problem and the reasonable availability of material,

labor, and utilities are all factors that will be taken into

consideration in determining how much time is reason-

able. During this time, the landlord must make a diligent

effort to repair the problem. For broken water pipes or

sewage blockages, the reasonable time is short (general-

Page 17

ly one or two days). For small roof leaks, the time is

longer.

4. Call an Inspector

If the landlord has had a reasonable time to fix the

problem and has not done so, you should call the appro-

priate city or county inspector (housing, health, or fire).

This may put additional pressure on the landlord if the

condition violates local ordinances. The inspector may

also help you decide if the problem affects health or

safety. Be sure to get a written report and the name of

your inspector.

5. Give a Second Notice and Request Explanation

After the landlord has had a reasonable time to fix

the condition following your initial notice, you must

send a second written notice and request an explanation

for the delay. If you ask the landlord for an explanation

and he does not respond within five days, you will have

an easier case to prove if it ever goes to court. You

should probably send this notice by certified mail to

prove the landlord received it. Remember to save a copy

of your notice. The notice should say that it is your sec-

ond written notice, that you are requesting an explana-

tion, and it MUST explain what you plan to do if the

landlord does not repair the condition. You have three

basic alternatives: terminate the lease, repair and deduct

the amount from your rent, or file a lawsuit. It may be a

good idea to list all the alternatives in your second

notice, and decide later which ones you will use. You

should also consider getting other tenants, city officials,

and the media involved.

See

"Overview."

6. Tenant Remedies

If the landlord has clearly had a reasonable amount

of time to repair the condition after he received your

second notice (usually seven days) and has failed to

make a diligent effort to remedy the problem, you can

exercise one or more of the alternatives listed in your

second notice: terminate the lease and move out; have

the problem fixed yourself and deduct the amount spent

from your rent, if you follow ALL of the procedures

mentioned; and/or sue the landlord for failing to repair.

(a) Terminating the Lease

If you decide to terminate the lease, you must inform

the landlord in your second written notice that you will

terminate the lease unless the condition is repaired or

remedied within seven days. Remember, you have the

right to terminate only if the condition materially affects

Page 18

the physical health or safety of an ordinary tenant, and

you are not delinquent in paying your rent.

See

"Warn-

ing."If you terminate the lease, you must move out. You

can stop paying rent on the day you move out or the

date of termination (whichever is later). If you correctly

terminated the lease, you are entitled to a refund of rent

from the day you terminated the lease or moved out (if

you paid rent in advance); you may use your deposit to

pay any rent that is owed without having to go to court.

If you terminate the lease, you may still sue the landlord

(if you gave the proper notice) for one month's rent plus

$500, actual damages, attorney's fees, and court costs.

But you cannot sue to obtain a reduction in rent or to

have the condition repaired, nor can you exercise any

repair and deduct remedies discussed below.

When you move out, the landlord must return your

security deposit unless he has reason to deduct an

amount from the deposit (such as for damage you

caused to the premises). Your landlord cannot keep your

security deposit solely because you terminated the lease

under these circumstances. If your landlord does not

refund the unearned portion of your rent or wrongfully

withholds your security deposit, you may wish to file

suit against him.

See

"Security Deposits."

(b) Using Repair and Deduct

A tenant can hire a contractor to repair a condition

that affects health or safety, after giving the required

notices and waiting a reasonable time. The tenant is

allowed to deduct the money paid to the contractor from

the NEXT month's rental payment.

See

"Warning."

However, repair and deduct can be used ONLY if one of

the following occurs:

* the landlord has failed to remedy the backup or over-

flow of raw sewage inside the dwelling, or flooding

from broken pipes or natural drainage inside the

dwelling;

* the landlord has agreed to furnish water and the

water has stopped;

* the landlord has agreed to furnish heating or cooling

and the equipment is not working adequately, and

the landlord has been notified in writing by a local

health, housing, or building official that the lack of

heat or cooling materially affects health or safety of

an ordinary tenant; or

* the landlord has been notified in writing by a local

health, housing, or building official that the condi-

tion materially affects health or safety of an ordinary

tenant.

After giving a proper second notice and the condi-

tions outlined above are met, you must wait seven days

Page 19

for the landlord to repair the problem before you can

hire a contractor to repair it. (Exception: You do not

have to wait at all if the condition involves sewage prob-

lems or flooding, and you only have to wait three days if

the condition involves lack of drinking water, heat, or

air conditioning.)

Although the repair and deduct remedy can be used

as often as necessary, the amount that can be deducted

to repair any one condition CANNOT be greater than

one month's rent. [A tenant of Section 8, government-

owned or government-subsidized housing may repair

and deduct up to the monthly fair market rent of the

dwelling from future rental payments.] Further, the total

deductions in any one month cannot exceed one month's

rent. The company or contractor you hire to make the

repairs must be listed in the phone book or classified ads

and must not have any personal or business connection

with you. You cannot deduct for repairs made yourself,

unless the landlord agrees (get the agreement in writ-

ing).A landlord has the right to delay a tenant from exer-

cising the repair and deduct remedy by delivering an

Affidavit of Delay. This affidavit can delay repair up to

30 days, but it must set forth the reasons for the delay

including, dates, names, addresses, and telephone num-

bers of contractors, suppliers, and repairmen contacted

by the owner. Affidavits must be made in good faith and

the landlord must continue diligent efforts to repair the

condition. A landlord can be severely penalized for

wrongfully issuing Affidavits of Delay. Check with a

lawyer or tenant association for more details.

If you successfully sue, you can get a court order

requiring the landlord to repair the condition, and you

can also recover your actual damages (direct costs

resulting from landlord failing to repair), a reduction in

rent effective from the first notice to repair until the con-

dition is remedied, and one month's rent plus $500, rea-

sonable attorney's fees, and court costs.

See

"Warning."

Filing suit in Justice of the Peace Court is cheaper

and faster than doing so in County Court or District

Court. You may easily represent yourself in Justice of

the Peace Court. However, by filing in Justice of the

Peace Court, you will be limited in some small respects.

First, the total amount you recover cannot exceed

$5,000, plus court costs. Second, the Justice of the

Peace cannot order your landlord to repair the condition,

as described above. Third, either party can appeal the

case to the County Court for a new trial, and thus not be

bound to the judgment of the Justice of the Peace Court.

One advantage to filing suit in County Court or District

Court is that you can get a court order to make the land-

Page 20

lord repair or remedy the condition that endangers your

health or safety. However, filing suit in these courts will

probably require the expertise of a lawyer, the costs will

be higher, and your case may not be tried for a long

time.

Exception For Major Damage

Special rules apply if the unsafe condition results

from an insured casualty loss such as fire, smoke, hail,

explosion, or similar cause. Under those circumstances,

the landlord is not required to start repairs until he gets

paid by his insurance company. He still has a reasonable

time after receiving the insurance proceeds to complete

the repairs. However, as long as you or your guests were

not responsible for the damage, you may terminate the

lease at any time prior to the completion of the repairs

and be entitled to a pro rata refund of any rent paid in

advance and the appropriate deposit. Alternatively, you

may be entitled to a reduction in rent proportionate to

the extent the premises are unusable (unless the lease

states otherwise). If an agreement cannot be reached

regarding a rent reduction and you wish to file suit, the

suit must be filed in either County Court or District

Court.

Retaliation for Requesting Repairs

Your landlord is restricted for six months from retali-

ating against you because you gave him a repair notice.

Illegal retaliation occurs when the landlord wrongfully

terminates the lease, files for eviction, deprives the ten-

ant of the use of the premises, decreases services to the

tenant, increases the rent because a tenant requested

repairs to the premises, or engages in activity that mate-

rially interferes with the tenant's rights under the ten-

ant's lease. There are several exceptions. For instance,

the landlord can increase the rent if the lease has a pro-

vision for an increase in the rent due to higher utility

taxes or insurance costs. The landlord may also increase

the rent or reduce services if it is part of a pattern of rent

increases or service reductions for the whole complex.

Furthermore, the landlord can still terminate the lease

and evict you if you fail to pay your rent, intentionally

cause property damage to the premises, threaten the per-

sonal safety of the landlord or the landlord's employees,

or break a promise you made in your lease. Your rights

to possession can also be terminated. You are also

responsible for your family and guests

There are other proper grounds for termination avail-

able to the landlord that are not considered retaliatory.

Of course, if you received a notice of termination at the

end of the lease before you gave the landlord notice to

repair, you are not protected. This is why it is a good

Page 21

idea to give the first repair notice in writing, date it, and

make a copy for your protection. There may be another

exception to obtaining retaliation damages if the land-

lord legally closes down the premises, but you are typi-

cally entitled to damages in this situation.

See

"Con-

demned or Closing Property."

If the landlord engages in activity that constitutes

unlawful retaliation, you may seek a court order against

your landlord awarding you: (1) one month's rent, plus

$500; (2) the reasonable costs to move to another place;

and (3) attorney's fees and court costs. But remember,

the landlord will win if he can prove that his actions

were not for purposes of retaliation.

Although the Texas Property Code does not specifi-

cally provide protection for other forms of retaliation,

you may be able to successfully sue a landlord for other

forms of improper retaliation. You should consult an

attorney before taking such action.

Withholding Rent Is Almost Always a Bad Idea

Your landlord can be awarded actual damages plus

other statutory penalties (and he can probably terminate

your rights to possession and evict you) if you withhold

any portion of your rent without an agreement, unless:

(1) you first obtain a court order permitting you to do

so; (2) you have properly repaired and deducted as

described above; or (3) you have lawfully terminated

your lease because of the landlord's unlawful behavior

with regard to repairs and you are using your deposit as

rent, as described above, or your utilities have been ter-

minated improperly. If you improperly try to use your

deposit as rent, you can also be penalized for three times

the amount you withheld. Therefore, only tenant organi-

zations with large numbers and an extreme commitment

should consider such a serious and risky tactic.

See

"Warning."

Improving or Changing the Premises

If you change the premises and reduce its value, the

landlord can hold you responsible. Even if the change

increases the value, a tenant has no absolute right to

make an alteration, and could be responsible for return-

ing the premises to its original condition. If the problem

affects your health or safety, however, the landlord may

have to let you modify the premises (at your expense).

For example, the landlord may not have to pay to alter

an apartment so it is wheelchair-accessible, but the land-

lord may have to allow you to alter the apartment at

your expense. In some situations, the landlord cannot

charge you for expenses required to return the apartment

to the original condition after you move out. If you want

to install a bookcase, hang a chandelier, paint the walls,

Page 22

lay carpet, or make other alterations, discuss your idea

with your landlord. Get his permission first, and you

might try to get him to agree to let you deduct the costs

from your next month's rent. Determine whether you

can take the addition with you when you move. Then

put your agreement in writing. If an agreement cannot

be reached, get further advice from an attorney or tenant

association.

Condemned or Closing Property

The landlord may decide to close the rental property

where you live for a variety of reasons. A landlord

CANNOT close down the property in the middle of a

lease term (with or without notice) without breaking his

agreement with you. If he does this, he can be liable for

actual damages, moving expenses, your deposit, and

other statutory penalties. If a governmental agency has

condemned the premises, contact them to discuss their

intentions. They generally cannot take any action

against you for continuing to occupy the premises, and

you may be entitled to some relocation assistance from

the municipality.

A landlord can legally close the premises by failing

to renew the lease, or may terminate a month-to-month

lease by giving you a 30-day advance notice. If the land-

lord does this in response to your requests for repairs,

the landlord will also be liable to you for moving

expenses, your deposit, and other statutory penalties. If

you stay longer, after the landlord legally closes down

the property, the landlord can remove you ONLY by

going through the courts.

See

"Lockouts" and "Evic-

tion." If the landlord shuts off the utilities, this will have

the same effect as closing down the premises, and the

landlord will probably still be liable in the situations

described above. You may be able to get the utilities

transferred to your name or be able to make other

arrangements, especially if the landlord has shut off the

service in the middle of a lease term.

See

"Utility Dis-

connection."

The landlord may allow you to transfer to another

unit he owns, although this alone will not forgive his lia-

bility. Check out the new place as described in "Select-

ing Your New Home." Make sure your deposit will

transfer as well, and negotiate to obtain moving expens-

es (by getting one month's rent free, for example). Get

any agreement in writing. If negotiations break down,

get in touch with an attorney or tenant association and

get more advice. In some instances, you may be able to

transfer and still sue your landlord for damages as dis-

cussed above.

Page 23

OCKS AND

ECURITY

EVICES

A landlord must install the following security

devices and without necessity of your request: a window

latch on each exterior window of the dwelling; a door-

knob lock or keyed deadbolt on each exterior door; a

sliding door pin lock on each exterior sliding glass door

of the dwelling; a sliding door handle latch or a sliding

door security bar on each exterior sliding glass door of

the dwelling; and a keyless bolting device and a door

viewer on each exterior door of the dwelling. Keyless

deadbolts are not required for units reserved for the

elderly (over 55 years of age) or disabled if it is part of

the landlord's responsibility to check on the well being

of the tenants. Also, keyed deadbolts or doorknob locks

are not required on all exterior doors as long as one door

if the dwelling has french doors, so long as at least

one french door has both keyed and keyless deadbolts

and the rest of the doors have keyless deadbolts.

A landlord may not require you to pay for repair or

replacement of a lock or other security device if it

breaks because of normal wear and tear. A landlord may

require you to pay for repair or replacement of a lock

that was damaged by your misuse (or the misuse of your

family or guest), but only if authorized by an underlined

provision in a written lease. You have the burden to

prove that the damage was not caused by you, your fam-

ily, or your guest. Unless a landlord fails to timely

install, change, or rekey a lock after giving the appropri-

ate notices and paying any required fee as described

below, you cannot install, change, or rekey a lock with-

out the landlord's permission.

Landlord Must Rekey Between Tenancies

A landlord must rekey or change all the key-operated

locks (or other combination locks) on the exterior doors

between each tenancy at his expense. The landlord must

rekey not later than the seventh day after you move in.

You can also ask the landlord to rekey or change the

locks repeatedly during the tenancy, but these changes

will be at your expense.

Procedure and Remedies for Lock Problems

The landlord must install, repair, or rekey devices

within a reasonable period of time, usually within seven

days of the request. In cases of violence occurring in the

complex in the preceding two months, a break-in or

attempted break-in of your place, or a break-in or

attempted break-in of another unit in your complex

within the preceding two months, the reasonable period

is shortened to three days. You must notify the landlord

Page 24

of the violence, break-in, or attempted break-in for the

shorter time period to apply. Give your notice and

request for installation or repair in writing, and be sure

to keep a copy of the notice. If you are responsible for

paying the landlord for the installation, repair, or modi-

fication of the locks, the landlord may require the

charges to be paid in advance but only in very limited

circumstances.

If the landlord fails to install, repair, or rekey locks

by the deadlines described above, you should give a

written notice to the landlord requesting compliance. In

some circumstances, a landlord can be liable without

this written notice, but you have fewer and smaller

remedies. The notice requesting compliance will proba-

bly be your second notice concerning your lock or secu-

rity problem. If the landlord fails to comply within

seven days of the compliance notice (or three days if

there has been foul play of the sort described above, or

if the lease fails to disclose various tenant rights con-

cerning security devices as described in this section),

you are allowed to do any one of the following: unilater-

ally terminate the lease; install/repair the security device

and deduct the cost from the rent; or file suit for a court

order requiring the landlord to bring all of his dwellings

into compliance, and for actual damages, punitive dam-

ages, civil penalty of $500 and one month's rent, court

costs, and attorney's fees.

See

"Warning."

MOKE

ETECTORS

Smoke detectors are required by state law and may

also be mandated by local ordinances. For information

on whether your community has adopted such ordi-

nances, consult your local building, fire, or housing

codes. At least one smoke detector must be installed by

the landlord outside of each bedroom. If several bed-

rooms are served by the same corridor, one smoke

detector may be installed in the corridor in the immedi-

ate vicinity of the bedrooms. In an efficiency apartment

where the same room is used for dining, living, and

sleeping purposes, the smoke detector must be located

inside rather than outside the room. If there is a bed-

room above the living or cooking area, the detector must

be placed on the ceiling above the stairway.

Smoke detectors should be installed on a ceiling or a

wall. Smoke detectors installed on a ceiling should not

be closer than 6 inches to a wall. Smoke detectors

installed on a wall should be between 6 inches and 12

inches from the ceiling. If a smoke detector in your

house or apartment is not properly installed, you should

request that the landlord reinstall it by giving the land-

lord a written notice. It is a good idea to keep a copy of

the notice for yourself.

Page 25

Landlord's Duty to Inspect and Repair

The landlord has the duty to inspect and test the

smoke detector at the beginning of your tenancy (or at

the time of installation). After you have moved in, the

landlord's duty applies only if you give the landlord

notice of a malfunction or make a request to the land-

lord for inspection or repair. The notice need not be in

writing, unless the landlord and tenant have agreed in

the lease that such notice must be in writing (however, it

is always better to give notices in writing and keep a

copy). The landlord has a reasonable time to inspect and

repair the smoke detector, considering the availability of

materials, labor, and utilities. A landlord has no duty to

inspect or repair a smoke detector that has been dam-

aged by you or your family or guests, unless you pay in

advance for the reasonable costs of the repair or replace-

ment. The landlord also has no duty to provide replace-

ment batteries for a battery-operated smoke detector, as

long as it was operating when you moved in.

Procedure and Remedies for Smoke Detector Problems

If you ask your landlord to install or repair a smoke

detector in your apartment and he improperly fails to do

so within a reasonable period of time, you should give

your landlord another written notice stating that if he

fails to comply with your request within seven days you

may exercise the remedies provided in the Texas Proper-

ty Code. If the landlord improperly fails to install or

repair a smoke detector within seven days of your

request, you may then bring court proceedings against

the landlord or you may terminate the lease without

court proceedings.

See

"Warning."

To succeed in court, you must be current on all rent

due to the landlord from the time you gave him the first

notice. If the damage to the smoke detector was caused

by you or your family or guests, you must also have

paid to the landlord in advance the reasonable costs of

the repair or replacement of the smoke detector. If you

bring court proceedings against the landlord, you may

be entitled to obtain: (1) a court order directing the land-

lord to comply with your request (not in Justice of the

Peace Court); (2) a court order awarding you damages

that resulted from the landlord's failure to install, repair,

or replace the smoke detector; (3) an award of one mon-

th's rent plus $100 as a penalty against the landlord; and

(4) court costs and attorney's fees.

Tenant Disabling of Smoke Detector

You may be liable for damages to the landlord for

removing a battery from a smoke detector without

immediately replacing it with a working battery, or for

Page 26

disconnecting or intentionally damaging a smoke detec-

tor, causing it to malfunction. If the lease between the

landlord and you contains a notice in underlined or bold-

faced print warning you to not disconnect or intentional-

ly damage a smoke detector, or warning you to replace a

battery that has been removed from the smoke detector

by you, the landlord may be able to obtain a court order

directing you to comply with the landlord's notice, to

pay a civil penalty of $100, and a judgment against you

for court costs and reasonable attorney's fees.

ECURITY

EPOSITS

The landlord can only deduct damages and charges

from the security deposit for which you are legally

liable under the lease agreement, or for physical damage

to the property. Your landlord cannot retain part of your

security deposit to cover normal wear and tear. Normal

wear and tear means deterioration or damage that occurs

based upon the normal intended use of the premises, and

that is not due to your negligence, carelessness, acci-

dent, or abuse. For example, the landlord cannot with-

hold part of your security deposit for worn carpet, small

nail holes, scratches on the sink or countertops, or fin-

gerprints on the walls. A landlord may be able to deduct

for large permanent stains on the carpet and crayon

marks on the walls caused by you or your guests. Even

in these cases, the landlord may not be entitled to

replace all of the carpet or paint the entire house at your

expense. However, a landlord may be able to deduct rea-

sonable cleaning fees if authorized in the lease.

Landlord Must Refund or Explain Within 30 Days

Your security deposit must be refunded to you within

30 days after you move out of the apartment or house,

provided that you give a written forwarding address to

your landlord. You can give your forwarding address at

any time; however, the landlord's duty to refund does

not exist until you do so. If your landlord has cause to

retain all or a portion of your security deposit, he must

provide you with a refund of the balance of the security

deposit, if any, together with a written description and

itemized list of all deductions within 30 days of your

move out (if you provided him a forwarding address).

A landlord is presumed to have refunded a security

deposit or provided you with an itemized description of

the security deposit deductions, if on or before the thirti-

eth day from your move-out, the refund or itemization is

placed in the United States mail and postmarked on or

before the thirtieth day. If a landlord who has the tenan-

t's forwarding address fails either to return the security

deposit or to provide a written list of deductions on or

Page 27

before the thirtieth day after the tenant moves out, then

the landlord is presumed to have acted in bad faith. If

your landlord retains all or part of your security deposit

in bad faith, you may sue him and recover $100 plus

three times the amount of the security deposit that was

wrongfully withheld, plus attorney's fees and court

costs. If your landlord, in bad faith, fails to provide a

written description and itemized list of damages and

charges to you for a portion of your security deposit that

has been withheld, he has forfeited all rights to withhold

any portion of the security deposit or to bring suit

against you for damages to the premises. Tenants who

wish to sue for their deposits can do so fairly easily

without an attorney in Justice of the Peace Court. In

these courts, you can be awarded up to $5,000 plus

court costs. Contact a lawyer or your local tenant associ-

ation for tips on suing in Justice of the Peace Court.

Exceptions and Miscellaneous

The landlord is required by law to keep accurate

records of all security deposits; however, the landlord is

not obligated to keep the funds in a separate account.

The landlord is also not required to pay interest on the

security deposit. The landlord is not required to furnish

a description or itemized list of deductions, as described

above, if any rent is due and unpaid at the time you

move out and there was no dispute that the rent was due.

If the lease requires you to give advance notice of termi-

nation, you should do so. However, advance notice of

termination may not be a condition for a refund of your

security deposit unless the requirement of advance

notice is underlined or printed in conspicuous, bold

print in the lease agreement. Even if you fail to give

notice, as specified in the lease, and the provision is

signed and underlined, the landlord may have to show

how he was damaged by your failure to give advanced

written notice before he can keep the deposit. If the

house or apartment is sold or otherwise transferred to a

new owner, the new owner is responsible for returning

the deposit unless the new owner purchased the property

from the bank (or mortgage lender) of the property at a

foreclosure sale. In this case, the old owner remains

responsible for the security deposit unless the new

owner gives a written notice to you stating that he is

responsible for the deposit.

Hold Deposits

Sometimes people place a deposit on an apartment

or house so a landlord will not lease the unit to anyone

else. This deposit does not usually become a "security

deposit" until after the depositor signs the lease and

Page 28

moves in. Before the depositor signs the lease, the

money is part of a separate contract between the land-

lord and the depositor that guarantees the depositor will

be able to rent the dwelling and assures the landlord that

if the depositor decides not to sign a lease, he will be

able to keep the money. In other words, if a person puts

down a deposit to hold an apartment or house, that per-

son cannot change his mind in a week or so and expect

the landlord to refund the entire deposit. The amount the

landlord can lawfully keep will depend on the agree-

ment between the parties, the length of time the deposi-

tor took to change his mind, and the actual damage suf-

fered by the landlord.

Don't Use Deposit As Last Month's Rent

You must not withhold any portion of the last mon-

th's rent on grounds that the security deposit serves as

security for the unpaid rent. [There are exceptions if you

lawfully terminated the lease because of a landlord's

failure to repair or pay the utility bills.] If you fail to

abide by this requirement, you can be liable to the land-

lord for three times the amount of the rent that was

wrongfully withheld and for reasonable attorney's fees.

INDING

WNS

AND

ANAGES THE

REMISES

As a tenant, you have the right to know the name and

address of the owner of the premises. You also have the

right to know the name and street address of any proper-

ty management company that is managing your house or

apartment. The landlord may satisfy his duty of disclo-

sure by providing you with a written copy of the infor-

mation, by having the information posted continuously

in a conspicuous place in the apartment complex or resi-

dent manager's office, or by having the information

included in your copy of the written lease agreement or

house rules.

If you want to know the name and address of the

owner and property management company for your

apartment or house, you should first see if the informa-

tion is in your lease or posted in the office. If it is not,

then request the information from the manager. Your

notice need not be in writing unless your written lease

agreement requires it (but it is always better to put the

request in writing and keep a copy for your records). If

the landlord fails to provide the information you

requested in one week, you should give him another

written notice that if the information is not furnished to

you within seven more days you may exercise the reme-

dies provided by the Texas Property Code.

Page 29

If you were current on your rent when you gave the

notices, and the landlord has not complied with your

second notice after seven days (or intentionally gave

you incorrect information), you may sue the landlord for

a court order that: (1) requires the landlord to disclose

the information; (2) awards to you your actual cost

incurred in discovering the information; (3) imposes a

penalty against the landlord in the amount of one mon-

th's rent plus $100; and (4) awards you attorney's fees

and court costs. You may also terminate the lease agree-

ment without court proceedings.

See

"Warning." You

may sue your landlord if he furnished an incorrect name

or address of the owner or property management com-

pany by willfully posting or stating wrong information,

or by willfully failing to correct information known by

the landlord to be incorrect. You may sue your landlord

under these circumstances even if your rent is past due.

ISCRIMINATION

A landlord cannot treat anyone differently based on

race, color, religion, sex, handicap, having children, or

national origin. If you believe that you have been denied

housing or that you are being treated differently because

of your race, color, religion, sex, handicap, having chil-

dren, or national origin, you should contact the Fair

Housing office in the city where you live, the Depart-

ment of Housing and Urban Development (HUD) office

in your area, and/or the Texas Commission on Human

Rights in Austin. You should also contact your local ten-

ant association or an attorney for advice. If you file a

complaint with a city Fair Housing office or HUD, they

must investigate the claim and get back to you with their

findings.

Only the seven groups mentioned above are protect-

ed. A landlord can use any other factor to determine

who he wants to rent to, as long as that factor does not

have the obvious effect of discriminating against one or

more of the groups. For example, a landlord cannot dis-

criminate against people who wear dresses (this clearly

has the effect of illegal discrimination on the basis of

sex). But, a landlord may use financial history, criminal

history, previous rental history, and eviction records to

determine whether he wants to rent to a tenant (assum-

ing these factors do not clearly impact one of the cate-

gories).

A landlord is generally not in violation of Fair Hous-

ing (anti-discrimination) laws if he wishes to evict you

if you have failed to pay the rent or broken some other

term of the lease. There are exceptions to this. For

example, it may be illegal for the landlord to give ten-

ants of Race A more time to pay the rent before he

Page 30

evicts than he gives to tenants of Race B. If you were of

Race B and in this situation, you might have a Fair

Housing claim and maybe a defense in an eviction case.

ERVING

OURT

APERS

OUR

ANDLORD

If you wish to sue your landlord, you must list the

landlord's name as the defendant and have the court

papers served upon your landlord or your landlord's

agent. If the owner's name and business street address

have been furnished in writing to you, you must serve

the court papers at that address. If that information has

not been provided, and if the apartment complex is man-

aged by a management company whose name and busi-

ness address have been furnished in writing to you, that

management company is the proper agent for service of

court papers. Otherwise, the resident manager or rent

collector serving the apartment complex can be the

proper person upon whom court papers may be served.

TENANT DUTIES

AND CONSEQUENCES

A tenant's main duties are to pay rent on time and to

follow the lease and house rules of the landlord by not

disturbing others, violating the law on the property, or

damaging the property. If the landlord feels you have

violated one of these conditions, he might take some of

the actions outlined in this section. Sometimes these

actions are legal and sometimes they are illegal accord-

ing to state law (regardless of what has been put in the

lease agreement).

OCKOUTS

A landlord may change the door locks when your

rent is not completely paid, in an emergency, for repair,

or when you have abandoned the premises. When the

door locks are changed because you are behind on pay-

ing the rent, the landlord must leave a written notice on

your front door describing where the new key may be

obtained at any hour and must give the name and loca-

tion of the individual who will provide you with the new

key. The notice must state the fact that the landlord must

provide the key to you at any hour (regardless of

whether or not you pay any of the delinquent rent) and

the notice must state the amount of rent and other

charges for which you are delinquent. The new key must

be provided to you immediately, regardless of whether

you pay the landlord anything. These rules apply no

matter what any lease agreement might say, and even if

Page 31

the landlord is closing down the premises. The landlord

CANNOT remove a door, window, lock, doorknob, or

any other appliance furnished by the landlord because

you are behind on the rent, unless the removal is for

repair or replacement (in which case, a lock, doorknob,

or door should be repaired or replaced before nightfall).

If the landlord changes the door locks without leav-

ing the required notice or without providing a new key,

or removes a door or other item improperly, you may

terminate the lease or recover possession of the premis-

es. In either case, you may also recover actual damages,

the greater of one month's rent or $500, plus reasonable

attorney's fees and court costs, less any past due rent

owed by you as the tenant.

To get back in, you should contact the manager,

management company, or owner for a new key. Break-

ing in is usually not a good idea, as you could be viewed

as a criminal by a neighbor or the police. If necessary

you can go to the Justice of the Peace Court in your area

and request a "writ of reentry," which will order the

landlord to provide you with a key to your house or

apartment.

TILITY

ISCONNECTION

Landlord Intentionally Disconnects the Utility

Sometimes a landlord will intentionally cut off a ten-

ant's utilities in an attempt to force you to pay rent or

move. Usually this is an illegal practice, but it depends

on the way the tenant pays for the utilities.

1. "All Bills Paid" Agreements

If the landlord pays for the utilities, and if you do not

make separate rent and utility payments (as in an "all

bills paid" lease), Texas law does not specifically pro-

hibit a landlord from shutting off the utilities for non-

payment of rent. In certain extreme weather conditions

or other circumstances, this practice may be improper

because it violates the health ordinances. Contact your

local health inspector, building inspector, or tenant asso-

ciation, for more information. The landlord cannot shut

off the utility for any other reason, such as nonpayment

of late fees or disturbing neighbors. If the landlord is

shutting off utilities because he is closing down the

premises, he may still be liable to the tenant.

See

"Con-

demned or Closing Property."

If the landlord disconnects or threatens to disconnect

the utility service for nonpayment of the rent, you

should argue that the landlord give you some advance

notice (such as five days) prior to turning off the utility

for nonpayment of rent, although there is no law specifi-

Page 32

cally stating this. If you offer to pay an amount equal to

the cost of the utility for one month in exchange for the

use of the utility and the landlord refuses, a court may

view any disconnection as an improper circumvention

of the eviction process and penalize the landlord. If the

landlord accepts your offer, be sure to indicate the

agreement on the check or money order or get the land-

lord to sign a separate agreement. If you offer to pay all

the delinquent rent after the utility has been cut off, the

landlord must reconnect the utility (whether or not the

landlord actually accepts the rent).

2. Submeter or Mastermeter Agreements

A landlord becomes a mini-utility company if it sub-

meters or mastermeters a utility service by charging you

separately for a utility service. There are special rules a

landlord must follow that are issued by the following

state agencies: Public Utility Commission (electricity),

Water Commission (water), and Railroad Commission

(gas). Each agency has the same basic rules regarding

utility submetering and mastermetering. The landlord

must issue written bills showing usage and the rate, and

give you a minimum of seven days to pay a bill. A ten-

ant's service can only be interrupted after at least a five

day advance notice and nonpayment of the utility bill. A

landlord cannot shut off a utility service sooner than 12

days from the date the bill is issued. The notice of termi-

nation must indicate the amount of the utility bill that is

past due and the specific deadline for payment. The

landlord cannot shut off the utility service the day

before the office will be closed (in order for you to be

able to pay the bill and reconnect the service). It is abso-

lutely illegal for a landlord to cut off a utility if you have

paid for the utility (regardless of what "account" the

landlord has applied the funds to). However, the land-

lord may have the discretion to apply funds to other

accounts if your intentions are not clear. Therefore, it

may be a good idea to indicate the intended use of any

funds you give the landlord (in other words, write "for

utility bill" on your check or money order to clearly

indicate your intentions and prevent a shutoff). Of

course, this may result in you being behind on rent, and

the landlord may then have other rights.

See

"Lockouts,"

"Landlord's Right to Remove Property," and "Eviction."

If the landlord disconnects utility service in violation

of these rules, a tenant may be entitled to actual dam-

ages, one month's rent, attorney's fees, and court costs.

you should also contact the appropriate agency to report

the violation. The landlord may not be liable if the inter-

ruption of utilities is a result of actual repairs, construc-

tion, or an emergency; however, a reduction in the next

month's rent should be requested. If the landlord is shut-

ting off utilities because he is closing down the premis-

Page 33

es, he may still be liable to you.

See

"Condemned or

Closing Property."

3. Separate Contract with Utility Company

It is unlawful under any circumstances for a landlord

to interrupt a utility for which you pay the utility com-

pany directly, unless the landlord is making repairs or

there is an emergency; however, a reduction in the next

month's rent should be requested. If the landlord

improperly interrupts such a utility service, you may

obtain a court order to restore the utility or may termi-

nate the lease. In either case, you may also recover actu-

al damages, the greater of one month's rent or $500,

plus reasonable attorney's fees and court costs, less any

past due rent owed by you as the tenant.

Utility Cutoff for Landlord's Failure to Pay Utility

Company

If a utility company disconnects service or gives

written notice that service is about to be cut off because

a landlord who is supposed to furnish utilities has not

paid the utility bill, then the landlord is liable to the ten-

ant regardless of whether the unit is "all bills paid," sub-

metered, or mastermetered. If this happens, you can ter-

minate the lease and move out within 30 days of

receiving the first notice, as long as the landlord has not

presented evidence that the utility bill has been paid

prior to your termination. So be sure to give your notice

in writing, date it, and keep a copy. If you properly ter-

minate the lease and are planning to move, you may

deduct your security deposit from your last month's rent

(if you have not paid it yet) and sue for actual damages

(such as moving expenses), court costs, and attorney

fees.

See

"Warning." Rather than terminate the lease,

you can try to avoid the cutoff by reconnecting the utili-

ty in your name and deducting the amounts paid to the

utility company from your rent. You may have to orga-

nize most of the tenants of the complex in order to be

able to negotiate successfully with the utility company.

If the landlord has failed to pay the utility bill because

he is closing the premises, he may still be liable to you.

See

"Condemned or Closing Property."

ANDLORD

IGHT

EMOVE

ROPERTY

Landlord Cannot Remove Own Property

A landlord CANNOT remove doors, windows, locks,

door knobs, or any other appliance (such as a refrigera-

tor or stove) supplied by the landlord because you are

Page 34

behind on the rent. If the landlord improperly removes

such property, you may obtain a court order to have the

property returned or terminate the lease.

See

"Warning."

In either case, you may also recover actual damages, the

greater of one month's rent or $500, plus reasonable

attorney's fees and court costs, less any past due rent

owed by you as the tenant.

Landlord May Remove Some Tenant Property

If you fail to pay rent, the landlord has a lien (a right

to possess until payment) on all of your "non-exempt"

property found in your apartment or house. The land-

lord's lien gives the landlord the right to peacefully take

your property, and to sell it after a proper time period

and notice, to satisfy the rent outstanding. The landlord's

lien can be enforced by the landlord without taking any

formal action in court ONLY if it is spelled out in the

lease, and the lease provision is underlined or printed in

conspicuous bold print. The landlord cannot sell or dis-

pose of the property unless this is also written in the

lease. However, the landlord is allowed to remove all the

contents of an apartment or house, without a specific

lease provision, when a tenant has abandoned the

premises. There is no specific limit on the amount of

non-exempt property the landlord can take. Generally, if

the landlord takes property (valued at market prices)

worth more than three times the rent owed, you may

have a wrongful seizure suit. The landlord cannot lien

property for any other charge. In other words, the land-

lord cannot deduct any amount from a rent payment and

still claim you are behind on rent, and then attempt to

lien property. Government-owned or government-subsi-

dized housing programs generally forbid landlord's liens.

The following types of property are exempt and can-

not be taken by the landlord under any circumstance,

unless the property was abandoned:

1. Clothing.

2. Tools, equipment, and books of the tenant's

trade.

3. School books.

4. One automobile and one truck.

5. Family portraits and pictures, and the family

library.

6. One couch, two living room chairs, one dining

table and chairs.

7. All beds and bedding.

8. All kitchen furniture and utensils, including a

tenant's deep freeze and microwave.

9. Food and food stuffs.

10. Medicine and medical supplies.

11. Anything the landlord knows belongs to some-

one else not living in the leased premises.

Page 35

12. Anything the landlord knows was purchased on

a recorded credit arrangement that has not yet

been paid for.

13. All agricultural implements.

14. Children's toys not used by adults.

The landlord must give you at least 30 days advance

notice of the sale by certified and regular mail to your

last known mailing address; indicate the time, date, and

place of the sale; and provide an itemized account of the

rent owed and the name of the person to contact for

information. You are allowed to redeem the property

prior to the sale if you pay the rent owed, and the rea-

sonable packing, moving and storage charges (if these

charges are also specified in the lease). At the sale, the

property is sold to the highest cash bidder. It is usually a

good idea to go to the sale to make sure it is done prop-

erly (sometimes landlords sell things to their friends for

a few cents). You are allowed to go to the sale and pur-

chase your own property. The landlord must take the

money he receives from the sale and apply it to the

rental account. As the tenant you are entitled to any

remainder. The landlord must give you an accounting

within 30 days of your request.

If the landlord willfully violates this law, you may

recover the greater of one month's rent or $500, return

of any property not sold or proceeds from the sale, plus

actual damages, and reasonable attorney's fees, less any

past due rent. If the sale was conducted improperly, you

may also have a claim against the landlord for violation

of the Deceptive Trade Practices - Consumer Protection

Act. Contact an attorney or a tenant association for more

details.

UBLEASING

Unless the lease allows it, a tenant may not sublet

(rent the house or apartment to another person) without

the consent of the landlord. If a tenant sublets the house

or apartment without the consent of the landlord, the

landlord may evict the subtenant and sue both the sub-

tenant and the original tenant for any damages caused

by the subletting arrangement.

If the lease does permit you to sublet your place,

subletting is still complicated. Unless the subletter and

the landlord sign a lease agreement with each other, you

will become the landlord of the new tenant. For exam-

ple, your subtenant will have to request repairs to the

apartment from you. You will then have to request the

repairs from your landlord. Moreover, you remain liable

to your landlord for the rent. So, if your subtenant stops

paying rent, you will have to pay rent to your landlord

and attempt to seek reimbursement from your subtenant.

Page 36

You will also be liable to your landlord for any damage

done by your subtenant. If you must move out of your

apartment, you should attempt to get your landlord and

the person moving into your apartment to agree to a

lease between each other. You should have your land-

lord release you in writing from any further liability

under your lease. This will avoid the undesirable situa-

tion where you are stuck in the middle between your

landlord and your subtenant.

OTENANCY

You should also be careful about sharing a rental

property with another tenant. Even if both of your

names are on the lease, the landlord will generally view

you and your roommate as one tenant for the purposes

of the lease. For example, if your cotenant moves out of

the premises, the landlord may hold you responsible for

all future and past due rent owing. Also, if you and your

cotenant have a disagreement, your landlord probably

cannot lockout, evict, or remove that person from the

lease on that basis alone. A cotenant can request the

landlord change the locks at your expense; however, the

landlord will have to give the new key to any other ten-

ant on the lease.

VICTION

Eviction is a judicial procedure that may result in the

physical removal of a tenant, all other occupants, and all

belongings from an apartment or house. As a tenant,

you may be evicted if you fail to pay rent or fail to abide

by some other provision of the lease agreement.

See

"Termination for Tenant Breach." The landlord may

only terminate your right of possession and probably

will not terminate the other obligations of the lease if

you violate a provision of the lease for nonpayment or

other breach.

See

"Consequences for Terminating With-

out Excuse." [A tenant in Section 8, government-owned

or government-subsidized housing must commit a seri-

ous violation of the lease for the landlord to be able to

terminate.] Check the lease for the available reasons.

You may also be evicted if you stay longer than the

lease allows without the permission of the landlord.

However, there are exceptions.

See

"Exceptions to Fail-

ing to Renew or Terminating a Month-to-Month."

Procedure and Suggestions

Even if you are improperly withholding possession

of the premises, all of the following steps must be per-

formed by the landlord and court before you can be

legally evicted.

Page 37

(1) The landlord must first give you a written notice

to vacate at least three days before a lawsuit is filed to

evict you. (The lease agreement may legally shorten or

lengthen the time period.) At this stage, there has been

no filing in court. Because eviction court records are

public documents and are used by many landlords to

screen potential tenants, it may be best to attempt to

negotiate (or simply move out before the deadline)

rather than risk having an unfavorable court record.

Moving out does not mean you cannot sue later for

wrongful eviction. A tenant in Section 8, government-

owned or government-subsidized housing is usually

entitled to longer notice periods, as well as an adminis-

trative hearing (called a "grievance hearing" or a meet-

ing with the landlord) before any of these eviction pro-

cedures can begin, unless the allegations include drug or

violent criminal behavior.

(2) If you fail to move out before the deadline in the

notice to vacate, the landlord may file a written com-

plaint with the appropriate Justice of the Peace Court

(called a forcible entry and detainer or "FED" suit). The

complaint must state the specific reason for terminating

your right to possession, contain a complete description

of the property from which you are to be evicted, and it

must be sworn to. The landlord can also ask the court to

award him back rent, court costs, and attorney's fees.

The Justice of the Peace Court should not consider other

damages (such as late fees) claimed by the landlord in

an eviction case. The landlord will be entitled to court

costs (about $60) if he wins. The court may also award

him attorney's fees if the lease provides for attorney's

fees or if the landlord gave you a notice to vacate 11

days before filing the eviction case and the notice to

vacate warned you about the possibility of having to pay

his attorney's fees. If the landlord is entitled to collect

attorney's fees as described above, then you may obtain

them if you win.

(3) After the case is properly filed, you must be

served with an official notice and a copy of the court

papers advising you of the date and time that you must

file a written answer (or response). In many areas, the

Justice of the Peace will actually hear the case on that

appearance deadline. You should contact the Justice of

the Peace Court to find out how it handles the cases. The

court papers can be left under the door, or tacked to the

door if you cannot be found. The papers are usually

served by a constable or sheriff. MAKE SURE YOU

COMPLETELY READ ALL OF THE PAPERS. Call an

attorney, tenant association, or the court (as a last resort)

if you have any questions or desire to contest the evic-

tion. You probably cannot file a counterclaim against the

landlord in an eviction case. If you and your landlord

work something out before the trial date, make sure the

landlord calls the court to dismiss the case. If the land-

Page 38

lord has not dismissed the case, you should go to court

to make sure the case gets dismissed.

(4) The landlord has an option of filing a bond for

immediate possession. If the landlord does so, the land-

lord may take possession of the premises six days from

the date that you are served with the bond papers, unless

you ask for a trial within the six-day period. It is always

better to request the trial in writing by filing a request

with the court. Make a copy of your request, and bring

both copies to court. The court clerk should stamp both

with the date you filed the request, and return one file-

stamped copy to you. Requesting a trial does not cost

anything.

(5) You and the landlord must appear in the Justice

of the Peace Court to present evidence on the date set

for trial. The trial date is usually held between 6 and 10

days of receiving the court papers. In some courts you

must appear in person or in writing on or before an

"appearance date" and deny the allegations before you

are entitled to a trial. You should call the court to deter-

mine which system it uses. It is very rare for the Justice

of the Peace to postpone the trial unless both parties

agree to the delay. Both parties have the right to present

their side of the case, including witnesses, receipts, can-

celled checks, photographs, and any other evidence that

may support their position. Either you or the landlord

may have the case decided by a jury by paying $5.00

within five days of receiving the eviction papers.

Requesting a jury is sometimes a good idea, since some

of the jurors may be tenants themselves, and they will

more fully understand what it is like to be a tenant. You

are not required to be represented by a lawyer at the Jus-

tice of the Peace Court hearing, but may be if you so

choose.

(6) If the judge or the jury finds that you should be

evicted, the landlord can request a "writ of possession"

that allows the constable or sheriff to physically evict

you. The writ cannot be issued until the sixth day after

the hearing (counting weekends and holidays). The

judge or the jury has the ability to lengthen this period

only at the hearing. If you do not attend the hearing, you

will lose the case automatically. The landlord may not

prevent you from going into the house or apartment

prior to the time the constable or sheriff evicts you

under the authority of a writ of possession. Once a writ

of possession is obtained, a constable or sheriff will

supervise the removal of all persons and property from

the premises. A writ of possession cannot be executed

by the officers if it is raining, sleeting, or snowing.

Because constables and sheriffs usually do not work

weekends or holidays, writs are not typically executed

then.(7) If you lose your eviction case in court, the land-

lord can still let you stay in the premises. For example,

Page 39

the landlord may let you stay if you pay back rent and

court costs before the six days are up. Warning: Unless

you get a signed written agreement from the landlord

saying the judgment from the court is void (or that he

will never enforce the judgment) and file it with the Jus-

tice of the Peace Court, the landlord can evict you any-

time without another hearing or any grace period (as

long as it is the sixth day or longer after the hearing).

The landlord will not need any reason, and could con-

ceivably evict you even if you pay. Therefore, if the

landlord will not sign an agreement to dissolve the judg-

ment (or promise never to enforce it), it might be better

to move.

Appealing an Eviction Case

The party that loses in Justice of the Peace Court

may appeal for a new trial in the County Court.

Although it is possible to represent yourself at the

County Court level, the rules are much more complicat-

ed. It is best to obtain legal representation. The party

wishing to appeal has only five days after the judgment

is signed to submit the proper paperwork and pay court

costs to the Justice of the Peace Court. To determine the

deadline: Begin counting on the day after the trial (or

date the judgment is signed if that is later). Count week-

ends and holidays, but the deadline will be extended to

the next day the court is open if the fifth day falls on a

weekend or holiday. For example, if the trial is Thurs-

day, the deadline to file is Tuesday. If the judgment is

signed on Monday, the deadline to file is the next Mon-

day. Ask the court clerk, a lawyer, or tenant association

to get information on the deadlines and the necessary

papers. To appeal a case to County Court, you must put

up a bond (a bond is a promise to pay a certain amount).

A bond must be signed by you and two others who have

real estate in Texas that no one lives on or other suffi-

cient assets (e.g., savings account, stock). The judge

must approve the bond. A bond guarantees that the other

party's costs for the appeal will be paid in case you lose.

A tenant can deposit cash into the court in the place of a

bond. The bond amount is set by the court (usually it is

set at two times the monthly rent amount). The appeal-

ing party must also pay court costs (about $120). If you

win in County Court, you will receive the bond back,

and will be entitled to the court costs from the landlord.

If you lose, the landlord will be able to apply for some

of the bond money depending on his costs for obtaining

possession and any lost rent.

If you have very little money, low income, and limit-

ed personal property, you can file a pauper's affidavit

instead of posting a bond and paying costs. A pauper's

affidavit is a document signed by you, which swears you

Page 40

are too poor to make bond or pay costs. The document

must be notarized and filed with the Justice of the Peace

Court on or before the fifth day after the hearing date.

However, a landlord can contest the affidavit and force

you to prove inability to pay at a hearing in the Justice

of the Peace Court. If you lose this "financial hearing"

you have five days to either post a regular bond with the

Justice of the Peace Court, as described above, or

request, in writing, that the County Court review your

financial status.

If the appeal papers are properly filed, you can stay

in the premises during the appeal. However, if you have

filed a pauper's affidavit, as described above, and the

landlord has claimed you violated the lease for nonpay-

ment of rent, you must deposit a one-month rental pay-

ment with the court within five days of filing the affi-

davit. You must continue to deposit rental payments

with the court within five days of the due date under the

lease until the trial date. If you fail, the County Court

may evict you, pending trial. No matter who appeals the

case, a tenant must also file an "answer" either in the

Justice of the Peace Court or in the County Court within

a week of it being assigned to a court. An answer is a

written document that states your defenses to the suit

and can merely be a short statement stating who the par-

ties are, the case number, and that you generally deny

the statements made by the landlord. It does not have to

be fancy to be valid. If an answer is not filed within a

week, you can lose the eviction case without having a

trial.

TERMINATION

AND MOVING OUT

A lease can terminate in several ways: by agreement

of both parties, when the lease ends, according to state

or federal law, or by one of the parties breaching (break-

ing) the lease. Once the lease terminates, you no longer

have a right to possess the premises.

GREEMENT

A landlord and a tenant can agree to change or com-

pletely terminate a lease at any time. If you have an

agreement, be sure you reduce it to writing and have the

landlord sign the agreement. This method is especially

useful to avoid having a suit filed against you for rent or

a claim placed on your credit report. Often tenants have

to move prior to the end of their lease without a legal

excuse, and this method resolves the problem without

risk or worry.

See

"Consequences for Terminating With-

out Excuse."

Page 41

EASE

NDS

End of Express Lease Term

A main provision of any lease specifies the lease

time period. After the lease expires, the landlord-tenant

relationship usually continues on a month-to-month

basis, unless one of the parties indicates otherwise.

Therefore, even if the lease is about to expire, the party

wishing to terminate the lease on the expiration date

must give a notice (preferably in writing) 30 days prior

to the expiration. Tenants sometimes lose their security

deposits because they fail to give written notice of ter-

mination.

See

"Security Deposits." A landlord can fail to

renew a lease agreement for ANY reason, unless the

landlord illegally retaliates or discriminates.

See

"Exceptions to Failing to Renew or Terminating a

Month-to-Month."

Month-to-Month Terminations

A month-to-month tenancy may be terminated by

either the landlord or you for ANY reason by giving one

month's advance notice. For example, if you get into a

disagreement with your neighbor after he has a party

late at night and you call the landlord to complain, the

landlord could ask you to move in 30 days. Although

the landlord would not be acting wisely, the landlord

could legally terminate the month-to-month lease (or

fail to renew your lease at the end of the term). If you

failed to move, the landlord would probably succeed in

an eviction case.

The notice can provide for termination on any day of

the month, as long as the date of termination is at least

one month from the date of the notice. If the notice ter-

minates the tenancy on a day which does not correspond

to the end of the month or the beginning of a rent paying

period, you need only pay for rent up to the date of ter-

mination. However, if rent is paid more than once a

month, it is sufficient to give a termination notice only

equal to the interval between rental payments. For

example, if you pay your rent weekly, you or your land-

lord need give only one week's notice in order to termi-

nate the tenancy. A written notice is not necessarily

required, but is strongly encouraged.

Exceptions to Failing to Renew or Terminating a

Month-to-Month

The only possible exceptions to the landlord's right

to terminate a month-to-month lease (or fail to renew at

the end of the lease) is if the landlord is illegally retaliat-

ing against you, or if the landlord is illegally discrimi-

nating against you. Even in these situations, a landlord

Page 42

may be successful in terminating your rights to posses-

sion and evicting you; however, you would still have a

clear right to sue for wrongful eviction, actual damages,

attorney's fees, statutory penalties, and other damages.

This may seem unfair, but you have the right to termi-

nate a month-to-month lease in 30 days (or fail to renew

at the end of the lease) for any reason and without

exception.

A tenant in Section 8, government-owned or govern-

ment-subsidized housing often has an additional protec-

tion concerning a lease renewal. Many government pro-

grams require the landlord to have a good cause if he

does not wish to renew the lease (or wishes to terminate

a month-to-month lease). Good cause is usually defined

in the lease. Call an attorney, housing authority, or ten-

ant association for more information.

ERMINATION FOR

ANDLORD

AILURES OR

ILITARY

RANSFERS

Texas law specifically allows you to terminate a

lease in a few circumstances when the landlord has

failed to perform his duties.

See

"Warning." A federal

law allows military personnel to prematurely terminate

their leases without penalty if they are transferred by the

military. A tenant in this situation should contact the

applicable military agency or his commanding officer

for more details.

ERMINATION FOR

ENANT

REACH

If a tenant violates a provision of the lease, the land-

lord can probably terminate the lease. Read your lease

to determine whether the landlord can terminate for a

particular violation. Failing to pay rent, severely disturb-

ing neighbors, and committing serious crimes on the

property are all fair grounds to terminate. Technical vio-

lations may be enough to terminate as well, depending

on the circumstances. For example, if you have a pattern

of paying your rent late, then the practice may legally

change the due date (unless the landlord gives you

advance notice that these payments will be considered

grounds for termination). Therefore, a court might rule

for you in an eviction case, even though you violated the

original lease provision. A court may also rule for you

when paying late if the lease provides for late fees and

you offered to pay the rent and the late fees (or at least a

reasonable fee).

See

"Rent and Late Fees." However,

many judges believe that the landlord has the sole

discretion of whether to accept late rent after a notice of

termination or a notice to vacate has been issued by the

landlord.

Page 43

Typically, if a tenant violates a provision of the lease,

the landlord may initially claim he has "terminated the

lease." However, the landlord probably has terminated

your right of possession and not your other obligations

of the lease agreement.

See

"Consequences for Termi-

nating Without Excuse." A tenant in Section 8, govern-

ment-owned or government-subsidized housing must

commit a serious violation of the terms of the lease for

the landlord to be able to terminate. Check the lease for

the available reasons.

HANGE IN THE

ANDLORD

SUALLY

OES

ERMINATE THE

EASE

If the landlord sells or transfers the property, the new

owner is obligated to honor your lease and any other

agreement you made with the old owner or manage-

ment. However, if the property is foreclosed on by a

bank or some other entity, the new owner is not obligat-

ed to honor your lease (or other agreement), but they

must allow you to stay at least 30 days from the date of

the foreclosure sale as long as you do not violate any

other portion of the lease and you are current on your

rent. If you receive notice that your landlord is about to

be foreclosed on, and someone else is demanding you

pay them rent or vacate, consult a lawyer or tenant asso-

ciation for advice.

ISAGREEMENTS

BOUT

ERMINATIONS

A landlord may terminate if you fail to pay rent on

time, violate the rules, or fail to act according to other

lease provisions. Most landlords only terminate your

right to possession and still require you to complete the

obligation to pay rent. However, even if the landlord ter-

minates the lease (or your rights to possession), you still

have the right to dispute the landlord's decision and stay

in your house or apartment and demand a judge or jury

make the determination. The landlord cannot physically

remove you from the premises unless an eviction suit

has been properly filed and a judgment has been issued

against you. Because eviction court records are public

documents and are used by many landlords to screen

potential tenants, it may be best to attempt to negotiate

(or simply move out before their deadline), rather than

risk having a court record (whether or not you win).

Moving out does not necessarily mean you cannot sue

later for wrongful eviction or wrongful termination. If

you terminate your lease and the landlord does not agree

with your decision, the landlord may take a variety of

actions against you.

See

"Warning."

Page 44

ONSEQUENCES FOR

ERMINATING

ITHOUT

XCUSE

If you do not have a legal excuse for terminating

early (or the landlord legally terminates your right of

possession), you can be held responsible for the remain-

ing rental payments under the lease. This is the maxi-

mum potential liability for premature termination. You

can still be liable for damages to the property and rea-

sonable cleaning fees if authorized in the lease. If you

move out early and your deposit is too small to cover

these charges, the landlord may pursue other actions to

collect the funds, and will usually make reports to credit

agencies if collection efforts prove unsuccessful. If you

want to terminate early, you should try to work some-

thing out with your landlord. If you make a deal, get the

agreement (referred to legally as a release) in writing to

prove you are no longer responsible under the lease.

You should at least give the landlord notice of your

intentions, because you will receive credit for any rents

collected on your place after you move out. Giving

notice may enable the landlord to find another tenant

before you actually move out. You can also find some-

one else to rent your place to practically eliminate your

liability, as long as the landlord finds them acceptable.

However, landlords can charge you a reasonable "relet-

ting fee" for having to prepare the dwelling for reletting

and having to redo paperwork sooner than normal. The

reletting fee must be a fair amount to cover actual

expenses and cannot be unfairly inflated (you cannot be

"penalized" for breaking a lease.) If a new tenant is not

found, a landlord can charge you only for the total rent

owed under the rest of your lease (and cannot also

charge you any reletting fee or other termination fee). If

you do move out early, with or without an agreement,

follow the advice outlined below. This may avoid addi-

tional penalties being assessed.

OVING

When you get ready to move out at the end of the

lease, you should give your landlord a written copy of

your forwarding address. It is always better to supply a

local address to your landlord. Your forwarding address

can be the address of your attorney, a family member, or

someone else acting as your agent. Always leave the

place clean and personally return the keys. The landlord

may be able to charge you for each day that you have

the keys. Take pictures or videotape, have witnesses

walk through the place, and ask the landlord or manager

to walk through as proof of the condition of the place

when you left. Also, ask the landlord if there is any

damage he plans to charge to you. Make a list as you go,

Page 45

and get the landlord to sign the list. You have the right

to repair or remedy these things yourself. If you dis-

agree with the landlord, try to calmly negotiate in per-

son and in writing. If the landlord will not walk through

the place with you (or sign the list), send him a letter

requesting a walk through again and state that he would

not agree to walk through the place with you (or sign

the list). Keep a copy of the letter yourself. Later, if the

landlord makes deductions from your deposit for repairs

that you would have completed yourself (at a lower

cost), you have a basis to dispute the amount of the

deductions.

See

"Security Deposits."

Page 46

For additional copies

please contact:

Public Information Department

State Bar of Texas

P.O. Box 12487

Austin, Texas 78711

(800) 204-2222, ext. 2610

Printed on recycled paper.