Repairs Flashcards
Implied Warranty of Habitability
Kamarath v. Bennett [know this case name] (1978))(Tex)
Texas property code has section “in lieu” of property rights
Landlord’s Duty to Repair
(a) A landlord shall make a diligent effort to repair or remedy a condition if:
(1)the tenant specifies the condition in a notice to the person to whom or to the place where rent is normally paid;
(2)the tenant is not delinquent in the payment of rent at the time notice is given; and
(3)the condition:
(A)materially affects the physical health or safety of an ordinary tenant; or
(B)arises from the landlord’s failure to provide and maintain in good operating condition a device to supply hot water of a minimum temperature of 120 degrees Fahrenheit.
Burden of Proof
(a) Except as provided by this section, the tenant has the burden of proof in a judicial action to enfce a right resulting from the landlord’s failure to repair or remedy a condition under Section 92.052.
(b) If the landlord does not provide a written explanation for delay in performing a duty to repair or remedy on or before the fifth day after receiving from the tenant a written demand for an explanation, the landlord has the burden of proving that he made a diligent effort to repair and that a reasonable time for repair did not elapse.
Sec.92.054.CASUALTY LOSS
(a) If a condition results from an insured casualty loss, such as fire, smoke, hail, explosion, or a similar cause, the period for repair does not begin until the landlord receives the insurance proceeds.
(b)If after a casualty loss the rental premises are as a practical matter totally unusable for residential purposes and if the casualty loss is not caused by the negligence or fault of the tenant, a member of the tenant’s family, or a guest or invitee of the tenant, either the landlord or the tenant may terminate the lease by giving written notice to the other any time before repairs are completed.
If the lease is terminated, the tenant is entitled only to a pro rata refund of rent from the date the tenant moves out and to a refund of any security deposit otherwise required by law.
Tenant’s Remedies
(e)Except as provided in Subsection (f), a tenant to whom a landlord is liable under Subsection (b) of this section may:
(1) terminate the lease;
(2) have the condition repaired or remedied according to Section 92.0561;
(3) deduct from the tenant’s rent, without necessity of judicial action, the cost of the repair or remedy according to Section 92.0561; and
(4) obtain judicial remedies according to Section 92.0563.
(Remember: TRCP 509 covers Orders to Repair)
TPC 92.056(g):A lease must contain language in underlined or bold print that informs the tenant of the remedies available under this section and Section 92.0561 (Repair and Deduct).
If tenant terminates the lease
(f) A tenant who elects to terminate the lease under Subsection (e) is:
(1) entitled to a pro rata refund of rent from the date of termination or the date the tenant moves out, whichever is later;
(2) entitled to deduct the tenant’s security deposit from the tenant’s rent without necessity of lawsuit or obtain a refund of the tenant’s security deposit according to law; and
(3) not entitled to the other repair and deduct remedies under Section 92.0561 or the judicial remedies under Subdivisions (1) and (2) of Subsection (a) of Section 92.0563.
Sec.92.056.LANDLORD LIABILITY AND TENANT REMEDIES; NOTICE AND TIME FOR REPAIR. ( One Notice Method)
(b) A landlord is liable to a tenant as provided by this subchapter if:
(1) the tenant has given the landlord notice to repair or remedy a condition by giving that notice to the person to whom or to the place where the tenant’s rent is normally paid;
(2) the condition materially affects the physical health or safety of an ordinary tenant;
(3) the tenant has given the landlord a subsequent written notice to repair or remedy the condition after a reasonable time to repair or remedy the condition following the notice given under Subdivision (1) or the tenant has given the notice under Subdivision (1) by sending that notice by certified mail, return receipt requested, or by registered mail; (or any “TRACKING” after 1/1/16).
b)A landlord is liable to a tenant as provided by this subchapter if:
…
(4)the landlord has had a reasonable time to repair or remedy the condition after the landlord received the tenant’s notice under Subdivision (1) and, if applicable, the tenant’s subsequent notice under Subdivision (3);
(5)the landlord has not made a diligent effort to repair or remedy the condition after the landlord received the tenant’s notice under Subdivision (1) and, if applicable, the tenant’s notice under Subdivision (3); and
(6)the tenant was not delinquent in the payment of rent at the time any notice required by this subsection was given.
(c)For purposes of Subsection (b)(4) or (5), a landlord is considered to have received the tenant’s notice when the landlord or the landlord’s agent or employee has actually received the notice or when the United States Postal Service has attempted to deliver the notice to the landlord.
d)For purposes of Subsection (b)(3) or (4), in determining whether a period of time is a reasonable time to repair or remedy a condition, there is a rebuttable presumption that seven days is a reasonable time.
To rebut that presumption:
* the date on which the landlord received the tenant’s notice,
* the severity and nature of the condition, and
* the reasonable availability of materials and labor and of utilities from a utility company must be considered.
Sec.92.0561.TENANT’S REPAIR AND DEDUCT REMEDIES
(a) If the landlord is liable to the tenant under Section 92.056(b), the tenant may have the condition repaired or remedied and may deduct the cost from a subsequent rent payment as provided in this section.
(b) The tenant’s deduction for the cost of the repair or remedy may not exceed the amount of one month’s rent under the lease or $500, whichever is greater. *
- (b)…. , if the tenant’s rent is subsidized in whole or in part by a governmental agency, the deduction limitation of one month’s rent shall mean the fair market rent for the dwelling and not the rent that the tenant pays. The fair market rent shall be determined by the governmental agency subsidizing the rent, or in the absence of such a determination, it shall be a reasonable amount of rent under the circumstances.
(c)Repairs and deductions under this section may be made as often as necessary so long as the total repairs and deductions in any one month do not exceed one month’s rent or $500, whichever is greater.
(d) Repairs under this section may be made only if all of the following requirements are met:
(1) The landlord has a duty to repair or remedy the condition under Section 92.052, and the duty has not been waived in a written lease by the tenant under Subsection (e) or (f) of Section 92.006.
(2) The tenant has given notice to the landlord as required by Section 92.056(b)(1), and, if required, a subsequent notice under Section 92.056(b)(3), and at least one of those notices states that the tenant intends to repair or remedy the condition. The notice shall also contain a reasonable description of the intended repair or remedy.
(3) Any one of the following 4 events has occurred: (continued)
Repair and Deduct conditions:
(A)The landlord has failed to remedy the backup or overflow of raw sewage inside the tenant’s dwelling or the flooding from broken pipes or natural drainage inside the dwelling.
(B)The landlord has expressly or impliedly agreed in the lease to furnish potable water to the tenant’s dwelling and the water service to the dwelling has totally ceased.
(C)The landlord has expressly or impliedly agreed in the lease to furnish heating or cooling equipment; the equipment is producing inadequate heat or cooled air; and the landlord has been notified in writing by the appropriate local housing, building, or health official or other official having jurisdiction that the lack of heat or cooling materially affects the health or safety of an ordinary tenant.
(D)The landlord has been notified in writing by the appropriate local housing, building, or health official or other official having jurisdiction that the condition materially affects the health or safety of an ordinary tenant.
(e)If the requirements of Subsection (d) of this section are met, a tenant may:
1) have the condition repaired or remedied immediately following the tenant’s notice of intent to repair if the condition involves sewage or flooding as referred to in Paragraph (A) of Subdivision (3) of Subsection (d) of this section;
(2) have the condition repaired or remedied if the condition involves a cessation of potable water as referred to in Paragraph (A) of Subdivision (3) of Subsection (d) of this section and if the landlord has failed to repair or remedy the condition within 3 days following the tenant’s delivery of notice of intent to repair;
(3)have the condition repaired or remedied if the condition involves inadequate heat or cooled air as referred to in Paragraph (C) of Subdivision (3) of Subsection (d) of this section and if the landlord has failed to repair the condition within 3 days after delivery of the tenant’s notice of intent to repair; or
(4)have the condition repaired or remedied if the condition is not covered by Paragraph (A), (B), or (C) of Subdivision (3) of Subsection (d) of this section and involves a condition affecting the physical health or safety of the ordinary tenant as referred to in Paragraph (D) of Subdivision (3) of Subsection (d) of this section and if the landlord has failed to repair or remedy the condition within 7 days after delivery of the tenant’s notice of intent to repair.
Who can make repairs?
f)Repairs made pursuant to the tenant’s notice must be made by a company, contractor, or repairman listed in the yellow or business pages of the telephone directory or in the classified advertising section of a newspaper of the local city, county, or adjacent county at the time of the tenant’s notice of intent to repair.
Unless the landlord and tenant agree otherwise under Subsection (g) of this section, repairs may not be made by the tenant, the tenant’s immediate family, the tenant’s employer or employees, or a company in which the tenant has an ownership interest. Repairs may not be made to the foundation or load-bearing structural elements of the building if it contains two or more dwelling units.
When can LL and tenant mutually agree for tenant to repair or remedy at LL’s expense?
(g)A landlord and a tenant may mutually agree for the tenant to repair or remedy, at the landlord’s expense, any condition of the dwelling regardless of whether it materially affects the health or safety of an ordinary tenant.
However, the landlord’s duty to repair or remedy conditions covered by this subchapter may not be waived except as provided by Subsection (e) or (f) of Section 92.006.
What does T need to supply LL to deduct cost of repairs from rent?
(j)When deducting the cost of repairs from the rent payment, the tenant shall furnish the landlord, along with payment of the balance of the rent, a copy of the repair bill and the receipt for its payment. A repair bill and receipt may be the same document.
Sec.92.0562.LANDLORD AFFIDAVIT FOR DELAY.
(a) The tenant must delay contracting for repairs under Section 92.0561 if, before the tenant contracts for the repairs, the landlord delivers to the tenant an affidavit, signed and sworn to under oath by the landlord or his authorized agent and complying with this section.
