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TENANTS' RIGHTS HANDBOOK
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
F
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
T
ENANTS
' R
IGHTS
H
ANDBOOK
Texas Young Lawyers Association
Public Service Programs Committee
1985, 1987, 1991, 1994, 1998 Texas Young Lawyers Association.

Page 4
T
ABLE OF
C
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
1

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
2

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
3

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.
R
ENT AND
L
ATE
F
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.
4

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.]
H
OUSE
R
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
5

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.]
L
ANDLORD
'
S
R
IGHT TO
E
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."
R
EPAIR
L
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
6

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."
O
CCUPANTS AND
V
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.
L
EASE
T
IME
P
ERIOD AND
M
ONTH
-
TO
-M
ONTH
L
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-
7

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."
C
HANGING
T
ERMS IN THE
M
IDDLE OR
E
ND OF A
L
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."
8

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.
R
EPAIRS AND
I
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,
9

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
10

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-
11

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
12

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
13

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.
(c) Filing Suit
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-
14

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
15

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,
16

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.
17

Page 23
L
OCKS AND
S
ECURITY
D
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
18

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."
S
MOKE
D
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.
19

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
20

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.
S
ECURITY
D
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
21

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
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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.
F
INDING
O
UT
W
HO
O
WNS
AND
M
ANAGES THE
P
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.
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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.
D
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
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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.
S
ERVING
C
OURT
P
APERS
ON
Y
OUR
L
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).
L
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
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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.
U
TILITY
D
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-
26

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-
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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."
L
ANDLORD
'
S
R
IGHT
TO
R
EMOVE
P
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
28

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.
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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.
S
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.
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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.
C
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.
E
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.
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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-
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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,
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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
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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.
B
Y
A
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."
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T
HE
L
EASE
E
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
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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.
T
ERMINATION FOR
L
ANDLORD
F
AILURES OR
M
ILITARY
T
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.
T
ERMINATION FOR
T
ENANT
B
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.
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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.
C
HANGE IN THE
L
ANDLORD
U
SUALLY
D
OES
N
OT
T
ERMINATE THE
L
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.
D
ISAGREEMENTS
A
BOUT
T
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."
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C
ONSEQUENCES FOR
T
ERMINATING
W
ITHOUT
E
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.
M
OVING
O
UT
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,
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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."
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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.
.