COMMON TOPICS FOR RESIDENTIAL TENANTS
"I came home to find a three-day eviction notice posted on the inside of my door. Do I really have to move out in the next three days? What if I don’t?"
A landlord’s three-day eviction notice is not itself an eviction. Only the courts can evict a tenant, which can only happen following a trial for which the tenant has notice.
The three-day eviction notice is instead a notice required by law that notifies a tenant of the landlord’s intent to seek eviction through the courts. Simply put, if a landlord fails to deliver such a notice (which can be delivered or posted in various manners specified by law), the landlord cannot receive an eviction from the courts.
Should a tenant fail to vacate the premises within three days following delivery of the three-day eviction notice, the landlord may thereafter file a lawsuit for forcible entry and detainer in the local justice of the peace court. As with any lawsuit, the landlord’s lawsuit must be properly served upon the tenant in order for the lawsuit to proceed to trial. The lawsuit, when served upon the tenant, will state the date of the trial, which generally occurs between 6 and 10 days after the tenant is served with the eviction lawsuit.
Should the trial result in an eviction (“possession”) being granted to the landlord against the tenant—and whether or not money damages are awarded to the landlord—the tenant has five days to appeal the ruling to the county court at law. Should the tenant not avail him/herself of the statutory right of appeal within that five-day period—which has its own particularized procedure—the landlord can thereafter apply for and receive a writ of possession. The writ of possession empowers an appropriate government official to come to the tenant’s residence and personally see that the tenant and his/her personal effects are immediately removed from the premises.
While the eviction notice is not itself an eviction, a tenant in receipt of an eviction notice shouldn’t rest on his/her laurels and think everything’s okay. Some situations can be successfully resolved between the landlord and tenant, thereby averting further legal action and preserving the landlord-tenant relationship. However the situation might proceed, immediate contact with legal counsel is entirely appropriate following receipt of an eviction notice.
Apartment Repair Issues
"I live in an apartment that has serious mechanical problems. I’ve asked my landlord to fix them, but he/she/it hasn’t taken care of it. What do I do?"
Section 92.056 of the Texas Property Code allows tenants to make repairs and deduct such costs from future rent payments under certain circumstances and provided the tenant follows a very particular procedure before making the repairs.
First, a tenant can only avail him/herself of statutory “repair and deduct” remedies where the premises defect “materially affects the safety and/or health of the ordinary tenant.” Tex. Prop. Code Ann. § 92.056(b)(2). While there is much room for argument as to what is “material” and what issues will affect an ordinary tenant’s safety or health, suffice it to say that mere cosmetic repairs—although critically important to most tenants—fall short of that threshold.
Second, the law requires that before any such repairs be undertaken by the tenant (by a properly qualified service provider), the tenant must first afford the landlord a reasonable opportunity to repair the defects. As such, the tenant must first notify the landlord—in a writing sent by certified mail, return receipt requested—of the issues requiring repair, in addition to stating the tenant’s intent to effect such repairs and to thereafter deduct the cost of such from future rent, failing the landlord’s timely correction.
In order to comply with statutory procedure, the tenant must notify the landlord in the manner described and thereafter allow the landlord at least seven days to effect such repairs. While the facts of a particular case might dictate otherwise, the law assumes seven days to be a reasonable period of time to effect such repairs.
If the landlord fails to effect the repairs following proper notice, the tenant is entitled to either (1) make the repairs—up to $500.00 maximum in one month—and deduct such amount from the following month’s rent; or (2) unilaterally terminate the lease, receive a refund of the security deposit, and seek various monetary penalties from the landlord.
Tenants wishing to avail themselves of these statutory repair and deduct remedies should first consult with legal counsel before endeavoring such. As discussed, the nature and severity of the repairs needed may not allow these remedies, and failure to follow the notice requirements in every particular prior to making the repairs will nullify the tenant’s ability to invoke these rights. Consider as well that most landlords resist unilateral rent deductions for any reason. Should the tenant invoke this procedure under improper circumstances, or fail to fully comply with statutory procedure, a tenant may be found in breach of the lease and therefore evicted.
"I recently moved out of my apartment, but my landlord hasn’t returned my security deposit. It’s been more than 30 days; I need that money. What do I do?"
"I recently moved out of my apartment. My landlord is refusing to refund any of my security deposit because he/she/it contends that my apartment required significant cleaning and/or repair in order to make it ready for the next tenant. The place was clean when I left. What do I do?"
Chapter 92 of the Texas Property Code requires the landlord to account for and/or refund the security deposit paid incident to an apartment lease within 30 days of the tenant's surrender of the apartment (provided the tenant also provides a forwarding address at the time of surrender). If any deductions are made from the security deposit, the landlord must particularly account for and/or itemize such deductions. If the landlord fails to do so within the 30 day period, he/she/it surrenders his/her/its right to make any such deductions. Short story: If the landlord doesn’t return the security deposit and/or account for deductions within 30 days of your departure, you’re entitled to a “full” refund of the security deposit.
You have the right to dispute any deductions that the landlord might make from your security deposit. Prior to doing so, however, you should carefully review your lease to identify what deductions, if any, are authorized by contract. Chapter 92 of the Texas Property Code does not permit deductions for “ordinary wear and tear” caused to the apartment in the course of your residency there. Many landlords attempt to assign to the former tenant the customary costs of preparing an apartment for the next tenant (e.g., ordinary cleaning costs, painting of the walls, replace carpeting). To the extent such items are “ordinary wear and tear”—and are thus not caused by your offensive or abnormal use of the apartment—the landlord should not be entitled to deduct the cost of such items from your security deposit.
Security deposit disputes are commonly resolved by a justice of the peace in small-claims court; in most instances this judge is the same person who hears eviction cases. While it is always advisable to have legal counsel represent you, small-claims courts routinely work with persons not represented by legal counsel. If you are unable to resolve the situation informally, you could file a lawsuit with the small-claims court.