Austin Tenants Council Project
OVERVIEW
The Austin Tenants Council Project (ATC) is a special project - operating under the philosophy that everyone has a right to safe, decent, and fair housing. The project focuses on housing discrimination, tenant-landlord education and information, and housing repair and rehabilitation. Working to ensure housing stability by rectifying Fair Housing Act violations and empowering tenants to exercise their rights through mediation, advocacy, and education. Through our counseling services, you can discuss your housing issues with a trained housing advocate who can provide guidance and education. ATC’s housing advocates can discuss tenant-landlord rights and responsibilities as described in the Texas Property Code and other sources. However, the project staff are not attorneys and cannot offer legal advice.
updates:
As of December 1, 2022, the Austin Tenants Council (ATC) is a project of Texas RioGrande Legal Aid. ATC continues to ensure housing stability for tenants in and around Austin by rectifying Fair Housing Act violations and empowering tenants to exercise their rights through mediation, advocacy, and education.
ATC can assist tenants with fair housing issues, including discrimination on the basis of race, gender, sexual orientation, religion, and other protected classes, and a landlord's refusal to grant a reasonable accommodation or reasonable modification request. To obtain assistance with fair housing or housing discrimination issues, please call 512-474-1961 and ask for help with a housing discrimination issue.
Tenants can also contact ATC to obtain landlord/tenant counseling, information about their legal rights, relevant documents and self-help forms, and referrals to other agencies by calling 512-474-1961 or by completing an online intake using the button below.
TELEPHONE COUNSELING:
Call 512-474-1961
Monday through Thursday, 9AM - 12PM and 1PM - 4PM
Friday, 9AM - 12PM
TO SCHEDULE AN APPOINTMENT:
Call 512-474-1961 during the above hours.
ATC’s online counseling program provides education and information regarding the rights and responsibilities of tenants and landlords. Fill out the below online intake form and an advocate will contact you!
Resources & Education
FILING A CLAIM IN COURT
Initiating a lawsuit should be considered a last resort to be used only after all possibilities of negotiation have been exhausted. Before you file, you may want to contact various agencies to see if counseling and mediation services are available for your specific problem. If your dispute arises out of a tenant-landlord relationship, you should contact the Austin Tenants’ Council for counseling. The Dispute Resolution Center also has mediators who assist disputing parties in resolving their conflicts and reaching mutually acceptable agreements outside the courtroom. However, if mediation fails, you may desire a legal remedy.
This publication is designed to familiarize you with the procedures involved in a small claims court lawsuit but is not a substitute for legal advice. If you need legal advice, you should contact an attorney.
The state of Texas provides courts in which individuals may settle monetary disputes in a speedy, informal setting. They are known as justice of the peace courts but are sometimes referred to as small claims courts.
A party can sue in justice court for damages of up to $20,000. The justice court may also order the return of personal property if the value of the personal property items is less than $20,000. It can also order a landlord to repair conditions that affect health and safety if the tenant shows that the tenant has complied with all the steps to get the landlord to repair before filing the suit.
To File or Not to File
To sue another person in small claims court, one must file a sworn statement called a petition or a complaint with the justice of the peace (JP). The person who sues is the plaintiff; the person being sued is the defendant.
If you are considering filing, learn something about the defendant before you file your suit. If the defendant does not have anything (money or property) that could be seized legally by the constable, it is likely that you will never get what you are suing for. It is a terrible disappointment to find out after you have taken the time and expense to win a case and then try to collect on your judgment that the defendant is penniless. In other words, “You can’t get blood from a turnip.”
Consider whether the person you want to sue has any legal claims against you that they e might counter-sue. For example, it may not be wise to sue someone for $2,000 if you owe that person $3,000.
Determine when your cause of action arose. The time within which you must file suit — or lose your claim — is governed by a statute of limitations. If you allege a contract violation, you have four years in which to sue. Other claims may provide for a limitation period of only two years. In addition, when you wait a long time to file a suit, witnesses may disappear, and memories may fade. Thus, it is best to file your lawsuit in a prompt manner.
Who May Sue or Be Sued?
Any person over the age of 18 years may sue in small claims court. A parent may file suit for a minor as the next friend of the minor.
A minor may be sued in small claims court. The parent or guardian is not automatically responsible for the acts of the minor. However, if you sue the parent or guardian, you must be prepared to prove why the parent or guardian should be held responsible for the acts of the minor.
An association, partnership, or corporation over which the court has jurisdiction may also be sued.
Which Court to Use
The justices of the peace in each county sit as judges of the small claims courts. The addresses and telephone numbers of these courts may be found in an online Google search. The suit should be filed in the precinct in which the claim arose or in the precinct in which the defendant lives.
If the defendant attempts to change the venue, that is, have the case moved to another precinct or county, contact the court for information.
Filing Suit
The civil clerk in the justice of the peace court will provide you with a petition in which to describe your claim and the damages you are seeking. The clerk will accept your fee and give you a receipt. Check the court’s website for a listing of current fees. If you cannot afford the filing fee, ask the clerk of the court to give you the form titled Statement of Inability to Pay Court Costs. If you file the Statement of Inability, the judge will determine whether you may proceed with your lawsuit without paying court fees..
Most cases are heard by the judge. However, either side may ask that a jury hear the case. A party who wants a jury trial must file a written demand no later than 14 days before the date a case is set for trial and pay a jury fee of $22.00 or file a Statement of Inability to Afford Payment of Court Costs at or before the time the party files the request for a jury trial.
When you complete the petition, provide all the requested information, and describe the facts giving rise to your legal claim. State the dollar amount of damages you are asking the court to award to you and explain how you calculated the amount.
You will be required to provide the following information:
Your name, address, telephone number, and fax number, if any;
The name, address, and telephone number, if known, of the defendant;
The amount of money, if any, you are seeking;
A description and claimed value of any personal property you seek to recover;
A description of any other relief you want the court to award you;
A description of the facts that form the basis of your claim against the defendant; and
A statement consenting to email service and email contact information, if you consent to email service of the answer and any other motions or pleadings.
Determine the correct name and address of each person or business you are suing before going to the justice court office. The correct names and addresses are vital to your case because the court cannot grant a judgment against a defendant who is improperly named in the complaint. If the business is a partnership, name both partners individually and the partnership by its correct legal name. If the business is a corporation, state its exact name including the word or abbreviation “incorporated” or “company” and state the name of the registered agent for the corporation. The registered agent’s name may be obtained by contacting the Texas Secretary of State’s Corporate Division. Remember that the address of the registered agent may be different from that of the business.
Some justice courts ask that the plaintiff swear that the facts stated in the petition are true and correct.
Once a plaintiff has filed a petition, a constable delivers a citation (notice that a lawsuit has been filed), with a copy of the petition attached to the defendant. The defendant must be properly served a citation for the case to proceed. The defendant must file a written answer with the court by the end of the 14th day after service of the lawsuit by the constable. The defendant is required to send the plaintiff a copy of the answer.
If the defendant does not answer or appear in court, the plaintiff can then call the court clerk to schedule a hearing to obtain a judgment by default against the defendant. The plaintiff should go to the default judgment hearing fully prepared to present all the evidence in support of the claim to the court.
A defendant against whom a default judgment is granted may file a motion to set aside the default judgment no later than 14 days after the judgment is signed. The court may set aside the judgment and set the case for trial if the defendant shows good cause. The judge has a limited time to rule on the motion to set aside a default judgment. The judge must rule by 5:00 p.m. on the 21st day after the judgment was signed or the motion to set aside is automatically denied.
Once the defendant files an answer to the lawsuit petition, the court will eventually schedule a trial date. Depending on how busy the court is, it may be months before the trial date is scheduled. It is best to stay in touch with the court clerk so that the court knows you are interested in your case.
On the day of the trial, TAKE WITH YOU TO THE COURT any evidence of your claim — such as receipts, invoices, canceled checks, and correspondence — and any witnesses who will testify on your behalf. You should show up 15 – 30 minutes early. DO NOT BE LATE, or the judge may dismiss your case or grant the other party a default judgment.
It is perfectly acceptable to try and “work something out” with the other side. If you are the defendant, you should always file a written answer with the court. This will protect you from a default judgment in the event you are unable to resolve the matter.
Counterclaims
If a defendant has a claim of damage or liability (responsibility) against the plaintiff, the defendant can file a counterclaim petition against the plaintiff in the justice court under the same suit the plaintiff originally filed. The defendant must pay a filing fee or file a Statement of Inability to Afford Payment of Court Costs. The defendant must serve a copy of the counterclaim petition on the plaintiff. This may be done by hand delivery, fax, or certified mail, return receipt requested. Service by email is allowed if the plaintiff has provided an email address and consented to email service in writing.
Save a copy of the counterclaim petition and the receipt for the counterclaim filing fee for your records
If the defendant files a counterclaim, the defendant has “the burden of proof” to convince the judge or jury that the defendant should win on the counterclaim... The justice of the peace has to decide cases by a preponderance of the evidence.
Preparing for Court
The courts must send notice of the date, time, and place of the trial to all parties no less than 45 days before the trial date unless the judge determines that an earlier setting date is required in the interest of justice.
Small claims courts are designed to be accessible to the layperson. For this reason, technical rules of evidence and civil procedure are not applicable in higher courts. Either party may choose to have an attorney represent him/her, but it is not required in this court.
The plaintiff has “the burden of proof.” That means that the plaintiff must convince the judge or jury through his presentation that he should win.
Written documents, photographs, and/or witnesses will make your case more convincing than if you rely only on your argument.
Take your witnesses and records to court for the hearing. If witnesses are unwilling to come voluntarily, the court will subpoena (order) them to appear if requested. If you ask the constable to deliver the subpoena, the court will tell you the fee you must pay for service by the constable. You should contact the court clerks or the court website for current fees and information.
A CONTINUANCE is a court-approved postponement of a hearing. If you or an important witness or document will not be available on the date of the hearing, you should request a continuance. If you need a continuance, you should file a written request for the continuance. Your written request must explain why you are asking for a postponement. The judge may postpone the trial for good cause for a reasonable time. A continuance will generally be granted when the other party notifies the court that he does not oppose the postponement.
If the other party notifies you of a reasonable need to postpone the hearing, you will save yourself some inconvenience by agreeing to the continuance.
If you need a language interpreter or you are hearing-impaired and need an interpreter, tell the clerk several weeks before trial. You should also file a written motion requesting an interpreter. You should file the motion for an interpreter as soon as the court sets the case for trial to give the court enough time to arrange for an interpreter.
Practice explaining your case to a friend. Write down a few notes or a brief outline to follow in court to make sure you touch on all the points in your favor. Try to anticipate what the other side will say and be prepared to meet those arguments. You might sit in on another case like yours to get an idea of what to expect. The civil clerk can tell you when a case like yours is scheduled to be heard.
Remember, the plaintiff may, at any time, drop the suit.
Once You Get to Court: The Hearing
The plaintiff will present his side first. Then the defendant can present his side.
You may testify yourself. You may call your witnesses to testify. You may also call the other side and any of the witnesses to the stand to testify. Anyone called to testify may be cross-examined (questioned) by the other side.
Explain your case to the judge. You cannot expect to win unless you make the court understand (1) the kind of case you have; (2) exactly what amount you are requesting; and (3) why you believe you are entitled to that amount.
REMEMBER: The judge must decide the case by a preponderance of the evidence based on the documents and sworn testimony presented in court on the day of the trial. It will not help you if you do not bring the documents or witnesses necessary to prove your case.
Address your statement to the JUDGE or JURY, not to the other side. Do not interrupt the judge and always address the judge respectfully as “Your Honor.” After both sides have concluded, the judge will sign a JUDGMENT stating whether the plaintiff or defendant wins and the amount of any damages, if any that the court is awarding. You should ask for a copy of the written judgment. If the judge takes the case “under advisement” it means that the judge wants to think some more about the case before signing a judgment. Telephone the court a few days later to find out if the judge has made a decision in your case.
If the Plaintiff Wins
If the judgment in the case is for the plaintiff, the defendant will be ordered to pay the amount ordered by the court plus court costs. Court costs include all fees collected by the court.
Both parties have 21 days from the date the judgment is signed to appeal. Both parties also have 14 days from the date the judgment is signed to file a motion for a new trial.
Collecting on the Judgment
If no motion for a new trial is filed and no appeal is filed within 21 days from the date of the judgment, you may get a copy or an abstract of the judgment from the justice court and file it in the county clerk’s Real Property Records. As long as the judgment is unpaid, the other party will generally not be able to sell real estate in the counties in which the judgment abstract is filed without paying the judgment.
You may also get a WRIT OF EXECUTION from the court after 21 days which orders the constable to seize certain kinds of property belonging to the defendant. Check with the court for fees. The constable may not seize items that are exempt from execution. The list of exempt personal property is set forth in section 42.002 of the Texas Property Code. Non-exempt property may be sold by the constable to satisfy an unpaid judgment. This order is generally much more effective against a business than an individual because ordinarily, the majority of personal property is exempt. Therefore, it cannot be seized.
You may, through an attorney, obtain a WRIT OF GARNISHMENT from the court to garnish money the defendant may have in a bank account. But Texas does not allow garnishment of wages.
If a defendant files bankruptcy, all efforts at the collection of the judgment must stop. A claim must be filed in the federal bankruptcy court. You should be notified by the bankruptcy court of the filing of the bankruptcy and the steps to take to file a claim with the bankruptcy court.
Appeals
If the amount at issue, exclusive of costs, exceeds $250, either party may appeal to the county court of law for a new trial. Any appeal must be filed within 21 days after the judgment is signed or the motion for a new trial, if any, is denied.
A party may appeal in one of three ways:
Paying a Bond – A plaintiff must file a $500 bond. A defendant must file a bond in an amount equal to twice the amount of the judgment. The bond must be supported by a surety or sureties approved by the judge.
Paying a cash deposit to the clerk of the court in the amount of the bond; or
Filing a Statement of Inability to Afford Payment of Courts Costs of Appeal Bond, if the party cannot afford to furnish a bond or pay a cash deposit.
If you believe that you are entitled to a NEW TRIAL (really a retrial) in the justice court, you must request one in writing within 14 days of the date the judgment is signed If the judge does not rule on the motion for a new trial, it is automatically denied at 5:00 p.m. on the 21st day after the judgment was signed. A judge will not grant a new trial unless you convince the judge that justice was not done in the trial of the case. Thus, you must carefully explain in the motion why the judgment is wrong.
If neither side appeals to the county court at law within 21 days of the date the judgment or order overruling a motion for a new trial is signed, the judgment becomes final. If the judgment says that the other side owes you money and he does not pay you, follow the “COLLECTING ON THE JUDGMENT” procedures outlined above.
If during the investigation, CPI believes there are dangers in the home and that the children need a safety intervention, then the case could be referred to Family Based Safety Services, which is an extrajudicial program under CPS. To avoid the risk of involuntary child removal from the home and court intervention, a family may agree to complete services that address identified safety risks under the oversight of an FBSS caseworker.
Parents involved with FBSS often face an overbroad list of services, conflicting statements about how long CPS will be involved with their family, and devastating repercussions for not “voluntarily” participating. FDP can support parents in negotiating FBSS services, providing accountability for DFPS commitments, and mediating communication between fearful parents and FBSS caseworkers.
After an investigation by CPI is concluded, a parent will receive a letter from DFPS confirming the investigation is complete and whether an investigative disposition or finding was made. If the investigation disposition is Reason to Believe neglect or abuse occurred, then the parent will be given the option to contest this finding by requesting an ARIF within 45 days. If left unchallenged, a parent’s finding of Reason to Believe will place them on the DFPS Central Registry, often leading to collateral consequences for employment and future abilities to support DFPS-involved family members.
FDP offers parents legal advocacy in these agency proceedings in which a DFPS employee will review the evidence – including evidence provided by the parent – to determine whether the Reason to Believe finding should be overturned.
As of September 2021, some parents whose rights were previously terminated are now able to petition the court to reinstate their parental rights. In order to be eligible, at least two years must have passed since the order terminated the parent’s rights, an appeal cannot be pending, the child cannot have been adopted, and the child cannot be the subject of an adoption placement agreement. In addition, the parent must show the court they have remedied the conditions that were grounds for the order terminating parental rights and are able to maintain their child’s health, safety, and welfare. FDP offers representation for eligible parents seeking to reinstate their parental rights.
REPAIR RIGHTS & PROTECTION FROM RETALIATION
Repairs: The Tenant’s Right and the Landlord’s Duty
Tenants have the right to have any condition that threatens their health or safety repaired by the landlord. Subchapter B of Chapter 92 of the Texas Property Code (§92.051 – §92.061) describes the process a tenant must follow to enforce repair rights and provides specific remedies for a tenant if the landlord fails to make the repairs. By giving the proper notices, a tenant can obtain repair remedies as soon as legally possible. Those remedies, described below, depend on the repair problem.
A landlord must repair conditions that materially affect the physical health or safety of an ordinary tenant. One important exception to the landlord’s duty to repair exists in the law. The landlord does not have a duty to repair a condition caused by the tenant, household members, or the tenant’s guests unless the condition was caused by normal wear and tear.
Conditions requiring repair fall into two categories: those that threaten the health or safety of an ordinary tenant and those that do not. Examples of conditions that are not a threat to health or safety would be a non-working dishwasher or broken blinds, or a non-working ceiling fan. Examples of conditions that are a threat to health or safety are plumbing stoppages, lack of hot water, electrical shorts, leaking roofs, or ceilings, and rodent or bedbug infestations.
Although a condition may not affect health and safety, the landlord may still have a duty to repair the condition because of the terms of the lease contract. When a landlord does not repair a condition that does not affect health and safety, but it has agreed to make such repairs in the contract, the tenant has a claim against the landlord for breach of contract. In such a case, the tenant does not have available remedies under the Texas Property Code.
For tenants living anywhere in Texas, the landlord must provide:
A dwelling that is decent, safe, and sanitary;
Hot water at a minimum temperature of 120° Fahrenheit;
Smoke detectors; and
Secure locks on all doors and windows, including a keyless bolting device.
The City of Austin Housing Code specifically requires that all residential dwellings in the City of Austin have:
Heating facilities capable of maintaining a room temperature of 68° Fahrenheit;
Hot water is supplied to plumbing fixtures at a temperature of not less than 110° Fahrenheit; and
A kitchen sink, a shower or bathtub, a toilet, and hot and cold water.
When a condition in a unit violates city code, the tenant may contact the City Code Enforcement Department and request an inspection. The Inspection Department will schedule the inspection. If the inspector finds the unit does not meet Code requirements, it will notify the landlord and require that the landlord make repairs.
If the rental unit does not meet state/city standards or other conditions exist which threaten the health or safety of a tenant, the procedure described below must be used to obtain repairs if the landlord has not responded to less formal requests for repairs, such as an email, text, or telephone call. Following the proper process of requesting repairs is essential to obtaining the repairs or to exercising your lawful remedies if the landlord fails to make them. You should read these instructions carefully before requesting repairs.
Procedure for Requesting Health and Safety Repairs
STEP 1
All rent must be paid
A tenant who is behind on rent or withholds rent because repairs have not been made may be evicted and forfeits all rights to have repairs made until the rent is paid. The only time a tenant may withhold rent is when the tenant has given the required notices and is exercising the right to repair and deduct. See the section, “Repair and Deduct.”
STEP 2
If a landlord does not respond to telephone or oral repair requests, the tenant should send a letter by certified mail, return receipt requested, by registered mail, or by a private delivery service that allows tracking of the delivery.
The letter should include the following:
The date;
The tenant’s name and address;
A description of the repair problem;
A statement that the problem is a threat to health or safety;
A request that the landlord repair the condition in a reasonable amount of time (seven days are thought to be a reasonable amount of time for most repairs. If there is an emergency, then as little as 24 hours’ notice can be given);
A request for a written response if the work cannot be completed within seven days; and
A signature.
The Austin Tenants’ Council strongly recommends that you also send the notice by regular first-class mail in case the landlord chooses not to claim certified mail.
STEP 3
If the landlord has not made a diligent effort to make the repairs within seven days after receipt of the written repair request, a tenant should write a second and final notice that is the same as the first.
DELIVERY OF REPAIR REQUESTS
Certified Mail, Registered Mail, or Trackable Method via Private Carrier
For a repair that is a threat to the health and safety of a tenant, the law requires that a tenant send only one repair request if it is sent by certified mail, registered mail, or by a private delivery service that allows tracking of the delivery. Nevertheless, it is strongly recommended that a tenant send a second letter as described above in STEP 2.Personal-Delivery
If the letter is delivered in person or by regular first-class mail, the law requires that the tenant give the landlord a second notice after a reasonable amount of time (seven days, unless the condition is of an emergency nature) has expired. When delivering a repair notice by hand, the tenant should always take a witness who is 18 years of age or older and can attest to the fact that the letter was delivered. Try to get a written receipt that is dated and signed by a property agent to prove the landlord received the repair request.Notice by Email
If your landlord accepts email communications, it is recommended that you also send the repair requests by email. Email is not necessarily considered written notice and may not satisfy the requirement for giving a repair request. Many problems can arise using email to communicate a repair problem to your landlord. For example, it is difficult to prove that the intended recipient received your email, especially if the person does not reply. Sending a written letter is required by Texas law. If, however, the landlord requires or mandates that the tenant send repair requests by email, the tenant should send the notice both by mail and email. The landlord may have waived the right to written notice, but the tenant should not rely solely on email notification if the landlord is not responsive.Proof of Delivery
Having proof that you sent the repair request and that it was received is critical. Always keep copies of your repair request notices and any receipts from the post office and/or from the landlord.
STEP 4
If the landlord has been notified of the needed repair as set forth above and fails to make a diligent effort to remedy the problem within seven days of certified mail notice or seven days of the second notice if sent by regular mail, the tenant may file a lawsuit in justice court without an attorney and seek an order for the repair, reduction in the rent effective from the date of the first repair notice, a civil penalty of $500 plus one month’s rent, actual damages, and reasonable attorney’s fees if an attorney is hired.
YOUR REMEDIES IF THE LANDLORD DOES NOT MAKE THE REPAIRS
If the required notices have been sent, and the landlord has not made a diligent effort to make health and safety repairs within a reasonable amount of time (seven days), then the tenant may, according to the Texas Property Code:
Terminate the lease and move.
The tenant should give the landlord a written notice that the tenant is terminating the lease because of the landlord’s failure to repair the condition that affected the tenant’s health and safety. (Note: If the landlord claims that it attempted to repair or that the condition does not affect the health and safety of an ordinary tenant, the tenant should consult with an attorney before proceeding with terminating the lease.) The notice should give a date by which the tenant will move out. The tenant will be entitled to a refund of the security deposit in accordance with the law and to a refund of the rent for the remainder of the month after the tenant leaves. The tenant may also deduct the security deposit from the prorated rent. A tenant who moves is also entitled to the other remedies listed below, except the court order directing repairs and the court-ordered partial rent reduction when taking the landlord to court.and/or
Take the landlord to justice court where an order may be issued:
Directing the landlord to make repairs;
Granting partial rent reduction back to the date of the first request for repair;
Awarding the tenant one month’s rent plus $500;
Awarding the tenant money for actual damages, reasonable attorney’s fees, and court costs.
and/or
Repair and deduct as outlined below:
The repair and deduct law are complicated, and ATC strongly recommends that a tenant get further assistance before exercising this remedy. A tenant should contact either the Austin Tenants’ Council or an attorney.
To exercise the right to repair and deduct, two things must be done:
The tenant must have a local housing, building, or health official or other official having jurisdiction notify the landlord in writing that the conditions affect the material health or safety of the tenant (but see exceptions described below); and
The tenant must deliver the required notices requesting the repair as outlined above. However, the final notice given to the landlord must state the tenant’s intent to exercise the right to repair and deduct and include a reasonable description of the intended repairs. (NOTE: If the tenant sends the first request for repair by a certified, registered, or trackable private mail carrier, then a second notice is not required.) The first notice sent via certified, registered, or trackable private mail carrier is also the final notice and must state the tenant’s intent to exercise the right to repair and deduct and include a reasonable description of the intended repairs.
In Austin, the official having jurisdiction is usually a building inspector from the City of Austin’s Building Inspection Department. (See below: “For Assistance in Enforcing Repair Rights.”) If these conditions are met and the landlord still fails to make the repair or remedy within a reasonable time, a tenant may have the repairs made and deduct the costs from the monthly rent by using the following procedure.
The tenant’s deduction for the cost of the repair or remedy may not exceed the amount of one month’s rent or $500, whichever is greater. If the tenant’s rent is subsidized in whole or in part by a governmental agency, the deduction limitation of one month’s rent means the fair market rent of the dwelling and not the actual amount the tenant pays.
In two situations a tenant may exercise the right to repair and deduct without having an official send the landlord notice that the condition is a threat to health or safety:
If the landlord has failed to remedy the backup or overflow of raw sewage inside the tenant’s dwelling or the flooding from broken pipes or natural drainage inside the dwelling; or
If the landlord has agreed to supply potable (drinking) water to the tenant’s dwelling and the water service to the dwelling has totally ceased.
If the condition involves sewage or flooding, the tenant may repair and deduct immediately after giving notice of intent to repair and deduct. If the condition involves a lack of water, the tenant may repair and deduct if the landlord fails to repair the condition within three days following delivery of the tenant’s notice of intent to repair.
If the condition involves inadequate heat or cooled air, the tenant may repair and deduct three days after giving notice of intent to repair and deduct (provided that an official has also sent the landlord notice that the condition is a threat to health or safety). The tenant may give only one notice provided the notice is sent by a certified, registered, or trackable private mail carrier. The notice must inform the landlord of the tenant’s intent to repair and deduct.
The law states that repairs must be made by a company, contractor, or repairman listed in the yellow pages or business pages of the telephone directory or in the classified advertising section of a local newspaper. Because telephone directories have basically ceased to exist and few contractors now advertise in local newspapers, a tenant should choose a contractor who is reputable and well-established in the area. Repairs may not be made by the tenant, the tenant’s immediate family, the tenant’s employer or employees, or a company in which the tenant has an interest.
Repairs must also be made in compliance with applicable building codes, including obtaining a building permit when required. When deducting the cost of repairs from the rent payment, the tenant shall furnish the landlord, along with the balance of the rent, a copy of the repair bill, and the receipt for its payment.
Casualty Loss
If a landlord has filed an insurance claim with an insurer because the needed repairs are a result of an insured casualty loss, such as fire, smoke, hail, explosion, or something similar, the landlord does not have to make the repair until the landlord receives the insurance proceeds.
If the casualty loss is not caused by the negligence or fault of the tenant or a guest of the tenant and the rental property is totally unusable for residential purposes, either the tenant or the landlord may terminate the lease by giving written notice any time before repairs are completed. Casualty loss situations can be complicated, because of lease provisions that are applicable in addition to Texas law If you are considering terminating your lease under Casualty Loss, it is strongly advised that you schedule a walk-in appointment with Austin Tenants’ Council or seek advice of an attorney.
A Landlord May Not Retaliate
Subchapter H of Chapter 92 of the Texas Property Code (§ 92.331 – § 92.335) prohibits a landlord from retaliating against a tenant by filing an eviction proceeding, depriving the tenant of the use of the premises, decreasing services to the tenant, increasing the tenant’s rent, terminating the tenant’s lease, or in bad faith, interfering with the tenant’s rights under the lease for six months from the time the tenant, in good faith, takes any of the following actions:
Gives a landlord a notice to repair or exercise a remedy under Chapter 92 of the Texas Property Code;
Attempts to exercise against a landlord some right or remedy granted to the tenant by lease, municipal ordinance, or federal or state statute;
Complains to a government entity responsible for enforcing building or housing codes, a public utility, or a civic or nonprofit agency about a building or housing code violation or utility problem and believes in good faith that the complaint is valid; or
Establishes, attempts to establish, or participates in a tenant organization.
Retaliation by the landlord is a defense to an eviction. However, the landlord may evict the tenant if the landlord can prove that the eviction is not in retaliation (e.g. if the tenant does not pay full rent or has damaged the property). Also, the landlord may increase the rent or decrease services if it is part of a regular pattern of rent increases or service reductions for all units in a multi-dwelling project.
A tenant may also bring an affirmative lawsuit against a landlord for retaliation. If a court finds that a landlord retaliated against a tenant, the tenant may recover a civil penalty of one month’s rent plus $500; actual damages including moving costs if the tenant has moved; and court costs and reasonable attorney’s fees less any rent or other sums the tenant owes the landlord.
In Austin, a landlord who retaliates against a tenant for calling the building inspection department may also face criminal penalties under the City’s housing code.
For Assistance in Enforcing Repair Rights in AUSTIN
If the landlord does not respond to repair requests, a tenant may want to call the local building inspection department for an inspection of the rental unit. A building inspector will be sent to investigate complaints. The inspector will then send an assessment of the conditions to the owner. The tenant should request a copy of this report from the building inspector. In Austin, call the inspection department at 311 or 512-974-CODE, and an inspection will be performed free of charge. The local health department inspector and/or fire marshal may also be contacted, if appropriate.
PLEASE NOTE: This information is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice.