TENANTS' RIGHTS HANDBOOK

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Page 1

TENANTS'

RIGHTS

HANDBOOK

Prepared as a Public Service

by the

Texas Young Lawyers Association

and distributed by the

State Bar of Texas

1998

Page 2

OREWORD

This handbook is for residential tenants and is pub-

lished as a public service by the Texas Young Lawyers

Association. It is our sincere hope that distribution and

use of this handbook will explain many of the questions

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

ship.

This handbook is intended to provide general guid-

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

lawyer. The Texas Young Lawyers Association hopes,

however, that by providing Texas residents with a better

understanding of their legal rights and remedies, this

handbook will help prevent many legal problems from

ever arising.

Page 3

ENANTS

' R

IGHTS

ANDBOOK

Texas Young Lawyers Association

Public Service Programs Committee

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

Page 4

ABLE OF

ONTENTS

OVERVIEW

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

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

SELECTING YOUR NEW HOME

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

THE LEASE AND IMPORTANT PROVISIONS

.....3

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

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

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

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

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

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

Changing Terms in the Middle

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

MOVING INTO YOUR NEW HOME

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

TENANT RIGHTS AND REMEDIES

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

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

Exceptions to the Landlord's Duty to Repair

.........10

Procedure for Obtaining Repairs

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

Exception For Major Damage

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

Retaliation for Requesting Repairs

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

Withholding Rent Is Almost

Always a Bad Idea

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

Improving or Changing the Premises

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

Condemned or Closing Property

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

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

Landlord Must Rekey Between Tenancies

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

Procedure and Remedies for Lock Problems

..........18

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

Landlord's Duty to Inspect and Repair

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

Procedure and Remedies for Smoke

Detector Problems

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

Tenant Disabling of Smoke Detector

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

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

Landlord Must Refund or Explain

Within 30 Days

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

Exceptions and Miscellaneous

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

Hold Deposits

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

Don't Use Deposit As Last Month's Rent

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

Finding Out Who Owns and

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

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

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

TENANT DUTIES AND CONSEQUENCES

..........25

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

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

Landlord Intentionally

Disconnects the Utility

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

Utility Cutoff for Landlord's

Failure to Pay Utility Company

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

Page 5

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

Landlord Cannot Remove Own Property

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

Landlord May Remove Some Tenant Property

.......29

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

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

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

Procedure and Suggestions

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

Appealing an Eviction Case

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

TERMINATION AND MOVING OUT

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

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

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

End of Express Lease Term

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

Month-to-Month Terminations

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

Exceptions to Failing to Renew or

Terminating a Month-to-Month

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

Termination for Landlord Failures or

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

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

Change in the Landlord Usually Does

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

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

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

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

Page 6

OVERVIEW

This handbook is designed to assist residential ten-

ants in their search for answers to actual legal problems.

A residential tenant is a person who has leased or rented

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

permanent residence or home. This handbook does not

address laws concerning boarding houses or motels,

commercial tenancies, or mobile homeowner rights,

although some of the legal concepts contained in this

handbook may be applicable. Most of the legal material

found in this handbook can be located in sections 24,

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

available in your local law library and can be found in

most public libraries.

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

Most disputes never reach the court and are settled

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

slow. Therefore, courteous, professional negotiation is

usually the fastest, most efficient solution in any dis-

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

sets forth the basic guidelines for negotiation. Often,

establishing or joining a tenant organization is an attrac-

tive option because such organizations encourage land-

lords to negotiate fairly. Also, a tenant organization may

get more attention from the media and local elected offi-

cials than individual tenants, and the fear of negative

publicity or pressure from these officials can affect a

landlord's actions.

WARNING:

This handbook is not designed to make

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

intended as a guide to the general rights and responsibil-

ities of the tenant and landlord in various situations. If

you plan to terminate your lease, withhold rent, repair

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

or take other serious action based on what you have read

in the Property Code or this handbook, please consult an

attorney or tenant association to ensure all the legal

requirements have been met. This handbook does not

address every consideration that may be applicable in a

given situation. Also, interpretations of statutes routine-

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

depend on the exact circumstances of the individual

case. If you improperly terminate the lease, withhold

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

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

be aware of the practical considerations of any lawsuit.

For example, this handbook indicates the specific

instances where you can terminate a lease agreement

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

minated your lease, if your landlord does not agree with

your decision, he may take action against you (including

Page 7

withholding your deposit and giving a statement to a

credit reporting agency). Although the landlord's actions

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

some trouble to achieve justice. Sometimes a landlord

may try to retaliate against you by refusing to renew

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

cy, or raising your rent. The law specifically provides

you a cause of action for certain kinds of retaliation.

See

"Retaliation for Requesting Repairs."

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

ant association, bar association, or other lawyer referral

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

your telephone directory. You can also call the Texas

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

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

free legal assistance from a legal services agency, and if

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

statement describing your financial status instead of

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

number of the legal services agency in your area, you

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

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

tice of the Peace Court. Justices of the Peace routinely

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

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

represent yourself from an attorney or your local tenant

association.

SELECTING YOUR NEW HOME

The most important thing you can do to avoid has-

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

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

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

or sign a lease.

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

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

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

the apartments have enough parking spaces? If there is a

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

Inspect the swimming pool. Find out what the neighbors

are like and what they say about the landlord. Ask

whether they ever had something that needed to be

repaired by the landlord. Was it fixed quickly? Have

they ever had any disputes with the landlord? Do they

have roaches? Has anyone in the area had any problem

with vandalism, burglaries, rape, muggings, or other

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

well lit?

NEVER sign a lease or even put a deposit down on

an apartment or house until you have seen the exact

place you will be renting. Some apartment complexes

will show you a model apartment. Often, the apartment

Page 8

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

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

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

signal mildew caused by roof or plumbing leaks. Make

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

dishwasher. Check the garbage disposal. Turn on the

water faucets and make sure the hot water works. Flush

the toilet. Test the heating and air conditioning units.

Open all of the cabinets and drawers in the kitchen and

bathroom. Look for signs of insects or rodents. Look

carefully at the carpet. Check around the windows. Are

there any signs of leaks or water damage? Does the

house or apartment have working smoke detectors? Test

all of the lights.

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

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

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

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

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

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

deposit until the items are repaired to your satisfaction).

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

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

ant association, better business bureau, or consumer pro-

tection agency, call and find out if other people have

complained about the landlord, complex, or manage-

ment company. Ask if the landlord owns any other

rental properties. If so, check into those too.

THE LEASE AND

IMPORTANT PROVISIONS

The importance of the lease cannot be overempha-

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

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

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

move and hold you liable for future rent payments and

other damages. Many people sign the lease without

carefully reading it. Often the lease consists of a long

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

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

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

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

you change your mind.

See

"Consequences for Termi-

nating Without Excuse."

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

permits you to make almost any change in the terms of

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

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

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

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

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

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

Page 9

difficult to rely on verbal promises that have not been

put in writing. Both you and your landlord should sign

and date all pages separate from the lease agreement. If

you have agreements about pets, replacing the carpet,

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

ments should all be stated clearly in writing. Anything

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

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

lord who will not put the agreement in writing.

ENT AND

ATE

EES

A landlord can charge any amount he wishes for

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

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

is given.

See

"Changing Terms in the Middle or End of a

Lease."

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

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

be paid late without penalty. Always get receipts and

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

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

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

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

determine who may have cashed it by contacting the

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

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

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

to start the process quickly. Sometimes a money order

company will replace money orders that have not been

cashed after a few months.

A landlord must accept cash rental payments, unless

the written lease provides otherwise. If you pay your

rent in cash, your landlord must provide you with a

written receipt. The landlord must also keep a record of

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

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

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

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

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

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

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

is in your lease.

A landlord can charge a reasonable late penalty if

you pay rent after the due date according to your lease

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

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

the discretion to either terminate the lease agreement or

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

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

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

You should read the lease carefully and argue that you

offered to cure the problem according to the lease.

Page 10

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

if you have established a clear and undisputed pattern of

acceptance of late payment by your landlord. You

should argue that if your landlord no longer wished to

accept late payments, he should have given you some

advance notice.

See

"Termination for Tenant Breach." If

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

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

over the phone).

Although there are no specific legal limits, a late fee

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

typical lease where rent is $400 per month. Landlords

can also charge additional fees for each day the rent is

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

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

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

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

answer. A landlord sometimes deducts late fees from a

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

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

There are no state laws that specifically address these

activities. However, a landlord may be in violation of

the Deceptive Trade Practices - Consumer Protection

Act if the landlord charges extremely excessive late

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

ant only has refused to pay an unreasonable late fee.

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

ment-subsidized dwellings have strictly monitored rent

that varies with their income level and have additional

protections for unfair late fees.]

OUSE

ULES

House rules or apartment regulations are usually a

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

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

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

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

and date the document. Having written rules will pre-

vent the landlord from changing the rules in the middle

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

able as long as they do not illegally discriminate.

See

"Discrimination." Rules may be unenforceable if they

are completely unreasonable. For example, a broad cur-

few on adults has been considered unreasonable by

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

unreasonable, it may be safer to follow them temporari-

ly and move rather than attempt to challenge them,

unless you have an attorney or tenant organization to

back you up.

See

"Overview."

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

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

notice for almost ANY reason, and a court will probably

Page 11

uphold that decision. There are some exceptions.

See

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

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

ants in Section 8, government-owned or government-

subsidized housing have more protections against

unreasonable evictions and rules. These tenants should

contact their local housing authority or HUD office to

complain of any unfair rules.]

ANDLORD

IGHT TO

NTER

Study the lease carefully to determine the circum-

stances under which the landlord may enter your home.

Unless the lease agreement says the landlord can enter

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

except perhaps in emergencies and for routine inspec-

tions or repairs when you are given advance notice. In

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

implied right to peaceable, quiet enjoyment of the

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

home. A landlord should not violate either of these

rights by entering without the tenant's permission or

before giving advance notice, regardless of what the

lease says.

You may want the right to have your own keyed lock

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

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

lease or get written permission from your landlord.

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

ing device on each exterior door of the dwelling without

necessity of request by the tenant. This will prevent

improper entries while you are home.

See

"Locks and

Security Devices." You may want to consider joining or

establishing a tenant organization; encouraging manage-

ment to allow all tenants to have their own keyed lock

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

agement a letter warning them of your intention to file

suit against them for any property stolen if there has

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

of the implied covenant and right of privacy described

above.

But see

"Warning."

EPAIR

ANGUAGE

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

ditions that affect your health and safety unless you

cause the damage through abnormal use. Make sure the

lease does not say that you give up your rights requiring

the landlord to make these repairs. Although such claus-

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

lease than rely on the courts to resolve a dispute.

See

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

Texas law does NOT require a landlord to repair or

Page 12

remedy a condition that does not affect your health or

safety, such as a defective dishwasher. Therefore, you

should read the lease to see if the landlord promises to

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

to change the lease to include repairing these problems.

See

"Repairs and Improvements."

CCUPANTS AND

ISITORS

The landlord can limit the number of occupants who

live in the house or apartment. The maximum number

should depend on the number of bedrooms and the age

of the occupants. Texas law generally limits occupancy

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

the dwelling. The landlord can set lower standards, as

long as he does not illegally discriminate. For example,

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

baby in the middle of their lease, the landlord probably

cannot require the couple to move to a two-bedroom

apartment because this may unfairly penalize them

merely because they had a child. A landlord generally

cannot limit visitors as long as they do not disturb other

residents or violate some other provision of the lease.

However, a tenant should be careful not to have the

same visitor spend the night too many times in a row

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

lord may consider the visitor as an unauthorized occu-

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

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

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

might be incorrectly perceived as illegal drug activity.

Although the landlord has the burden to prove a tenant

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

wise to avoid these disputes from arising in the first

place. Therefore, you should consider explaining the sit-

uation to the landlord to remove suspicion rather than

becoming offended by a landlord's questions and not

cooperating.

EASE

IME

ERIOD AND

ONTH

-M

ONTH

EASES

Normally, a written lease will last for a fixed period

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

of having a lease is that it protects you from rent

increases during that time. The landlord has the advan-

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

One disadvantage is that you are obligated for the rent

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

unless the landlord substantially violates the lease or

agrees to let you out of the lease.

If you never had a written lease agreement or your

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

Page 13

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

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

you or your landlord gives a one-month advance notice

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

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

required.) No matter who terminates the lease, you

should always keep a copy of the notice of termination

as proof.

See

"Termination and Moving Out."

HANGING

ERMS IN THE

IDDLE OR

ND OF A

EASE

During the lease, one party cannot change any terms

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

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

dated, and signed by both parties. Unless an agreement

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

lease agreement (including any house rules). However,

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

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

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

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

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

party might be presumed to have accepted the new

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

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

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

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

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

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

landlord sends a notice on October 31 that the rent will

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

pay the increased rent, try to negotiate with the landlord

and indicate you will not renew the lease unless the rent

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

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

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

mination. Otherwise, you will be responsible for the

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

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

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

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

rent will be increased the month after the end of the

lease, you may be responsible for the increased rent

whether or not you sign anything or orally agree to the

new amount. A court may find that you accepted the

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

tenant you should not assume anything, as a court will

decide each situation differently. You should always get

agreements in writing and signed by the owner or man-

ager.

See

"Tenant Duties and Consequences."

Page 14

MOVING INTO YOUR NEW HOME

When you move into your new home make sure all

the repairs your landlord promised have been complet-

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

your landlord immediately. If the landlord fails to make

the repairs he promised before you signed the lease, he

may be liable for violating the Texas Deceptive Trade

Practices Consumer Protection Act. Contact a lawyer

or tenant association for more details. You should also

make a written list noting the condition of the apartment

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

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

getting back your security deposit. Make a note of every

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

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

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

detectors to verify they are in working order when you

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

locks between tenants.

TENANT RIGHTS AND REMEDIES

This section of the handbook discusses tenant rights

and remedies provided by Texas law. Unless otherwise

indicated, a lease cannot remove or diminish any right

or remedy described below. However, your lease may

provide additional protections and remedies. So, be sure

to read your lease first to see if your problem is

addressed.

EPAIRS AND

MPROVEMENTS

Texas law requires landlords to make a diligent effort

to repair anything that materially affects the physical

health or safety of an ordinary tenant. Examples of

things that materially affect the health and safety of an

ordinary tenant are sewage backups, roaches, rats, no

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

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

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

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

Problems such as broken dishwashers, walls that need

painting, unsatisfactory draperies, or grass that needs

cutting are generally not covered by state law. However,

your lease agreement may require the landlord to fix

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

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

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

tenant association.

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

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

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

Page 15

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

find that a landlord is still responsible if the landlord

clearly implied he would fix anything that broke in the

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

remedy, so careful and courteous negotiation is the best

practical solution. The remaining sections of "Repairs

and Improvements" will only discuss the requirements

and remedies provided by state law as described above.

Although some of the general advice may be applicable

in other situations, a tenant should not assume that ANY

of the remedies discussed below will be available.

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

ment-subsidized housing have additional rights concern-

ing repairs. A local housing authority administers many

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

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

until the repairs are completed. If the landlord files for

eviction, the tenant may have defenses. The landlord

may not be able to evict based on nonpayment of the

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

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

premises. The tenant should call his housing authority,

attorney, or tenant association for more information.]

Exceptions to the Landlord's Duty to Repair

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

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

or lawful occupant of the tenant (unless the condition

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

also specifically provides that the landlord need not fur-

nish security guards for an apartment complex, even if

the complex is unsafe, although better lighting, locks,

fencing, and other security measures could be required

in some situations. The law also exempts landlords who

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

er landlords to change their duty to repair entirely if the

unit was free of health and safety risks when the tenant

moved in (and the landlord was unaware that there

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

the landlord wants you to repair items that would nor-

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

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

or in bold print.

Any landlord may require a tenant to pay for broken

windows, screens, and doors if the provision is specific

and underlined or bolded in a written lease regardless of

who broke them, assuming the window or door did not

break from normal use and the landlord did not cause

the damage. The landlord also may require the tenant to

repair damage caused by leaving windows and doors

open, and from sewage backups if a toy or other

improper item is found in the line that exclusively leads

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

Page 16

provision is specific and underlined or bolded in a writ-

ten lease. Otherwise, the landlord must repair these

items at his expense within required time limits and

guidelines.

Other than these exceptions, a landlord must provide

you with a home that is free from health and safety

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

intentionally tries to change this duty in your lease

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

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

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

sumes the landlord acted without knowledge, so give

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

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

refuses, you may have a stronger claim against him.

Procedure for Obtaining Repairs

Tenants with problems requiring landlord repairs

must take the following steps:

1. Always Give Notice

You must give notice of the problem to the person to

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

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

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

Many leases require that all requests for repair be in

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

the notice to the same address. Sending the notice by

certified mail provides the best proof that it has been

received; however, this is not required.

2. Pay Your Rent

The landlord is not obligated to make repairs unless

you are current on your rent. You must perform your

obligation to pay rent or you cannot force the landlord

to perform his obligation to repair. Your rent must be

current at the time you give the first notice, otherwise

that notice may not have any legal effect.

3. Wait a Reasonable Time

If the above conditions are met, the landlord has a

"reasonable time" to fix the problem after receiving your

initial notice. The length of time considered reasonable

will depend on the circumstances. The nature of the

problem and the reasonable availability of material,

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

consideration in determining how much time is reason-

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

effort to repair the problem. For broken water pipes or

sewage blockages, the reasonable time is short (general-

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

longer.

4. Call an Inspector

If the landlord has had a reasonable time to fix the

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

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

This may put additional pressure on the landlord if the

condition violates local ordinances. The inspector may

also help you decide if the problem affects health or

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

your inspector.

5. Give a Second Notice and Request Explanation

After the landlord has had a reasonable time to fix

the condition following your initial notice, you must

send a second written notice and request an explanation

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

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

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

should probably send this notice by certified mail to

prove the landlord received it. Remember to save a copy

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

ond written notice, that you are requesting an explana-

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

landlord does not repair the condition. You have three

basic alternatives: terminate the lease, repair and deduct

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

good idea to list all the alternatives in your second

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

should also consider getting other tenants, city officials,

and the media involved.

See

"Overview."

6. Tenant Remedies

If the landlord has clearly had a reasonable amount

of time to repair the condition after he received your

second notice (usually seven days) and has failed to

make a diligent effort to remedy the problem, you can

exercise one or more of the alternatives listed in your

second notice: terminate the lease and move out; have

the problem fixed yourself and deduct the amount spent

from your rent, if you follow ALL of the procedures

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

(a) Terminating the Lease

If you decide to terminate the lease, you must inform

the landlord in your second written notice that you will

terminate the lease unless the condition is repaired or

remedied within seven days. Remember, you have the

right to terminate only if the condition materially affects

Page 18

the physical health or safety of an ordinary tenant, and

you are not delinquent in paying your rent.

See

"Warn-

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

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

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

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

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

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

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

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

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

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

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

have the condition repaired, nor can you exercise any

repair and deduct remedies discussed below.

When you move out, the landlord must return your

security deposit unless he has reason to deduct an

amount from the deposit (such as for damage you

caused to the premises). Your landlord cannot keep your

security deposit solely because you terminated the lease

under these circumstances. If your landlord does not

refund the unearned portion of your rent or wrongfully

withholds your security deposit, you may wish to file

suit against him.

See

"Security Deposits."

(b) Using Repair and Deduct

A tenant can hire a contractor to repair a condition

that affects health or safety, after giving the required

notices and waiting a reasonable time. The tenant is

allowed to deduct the money paid to the contractor from

the NEXT month's rental payment.

See

"Warning."

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

the following occurs:

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

flow of raw sewage inside the dwelling, or flooding

from broken pipes or natural drainage inside the

dwelling;

* the landlord has agreed to furnish water and the

water has stopped;

* the landlord has agreed to furnish heating or cooling

and the equipment is not working adequately, and

the landlord has been notified in writing by a local

health, housing, or building official that the lack of

heat or cooling materially affects health or safety of

an ordinary tenant; or

* the landlord has been notified in writing by a local

health, housing, or building official that the condi-

tion materially affects health or safety of an ordinary

tenant.

After giving a proper second notice and the condi-

tions outlined above are met, you must wait seven days

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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