Texas Residential lease agreement to add "Pest Control terms"

19 Replies

Hello BP'ers,

I have been using the Texas Residential Lease agreement (I am in El Paso TX) for some time now, besides this template does not have a specific term in regards of "Pest Control", other than it mentions to keep the property in good sanitary conditions.

1. Does anyone know if I can add a term to the agreement, to have tenant responsible for pest control after certanly weeks of taking possession of property?

2. Or if anyone knows where I can find out about this

Thank you

Sal

Our lease just says that we are only responsible for pest control in terms of termites. So basically everything else is on the tenant.

Are you asking to specify that the tenant must hire pest control on their dime on a routine schedule?

@Laci J. , I am looking how should I specify according to the law, and how in some point the tenant can be responsible, i.e. if the lease terms can obligate to the tenant to cover any property damage in case of a mice, something like that

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@Salvador Flores  Funny you mention that. After a bedbug infestation in one of the properties I manage I now write in the special provisions section: "with the exception of wood destroying insects, tenant is responsible for pest control up to and including pest control." 

@Salvador Flores, from my research, in TX the lease rules, so you should be able to put in the lease that the tenant is responsible.

But, are you also asking if you can add this to the lease after they've already signed one and moved in?  Not unless they agree to it.  If they don't agree to it, then you can't add the addendum to the lease, if they've already signed a lease with you that didn't have that addendum.

When it's time for them to renew the lease, though, you can add it then to the new lease.

@Sue K. , I am looking to including the term on the new leases going FW, I recently had a tenant who had pest control problem in one of my properties, since the agreement was expired with option to be auto renewed for 30 days, the tenant just putted the 30 notice and left the property so I had to deal with the pest control problem.

Consult a local attorney on this matter. Based on my reading of the Texas Property Code, I disagree entirely with some of the information you are being provided. However, I am not licensed in your state. I would only caution that you consult a local Landlord/Tenant Law attorney in regards to whether or not this is a waivable obligation by a landlord. 

Our leases indicate the home is provided pest free.  Any additional or periodic pest control is at the tenant's expense, with the exception of treating for wood destroying insects.

Pest Control • Any pests, including insects and rodents, not reported in writing within the first 5 days of the lease, will be assumed to have entered the property after the start of the lease. • You are responsible for keeping the property free of all pests (ants, roaches, fleas, ticks, silverfish, scorpions, rodents etc.), except termites. • Since you are our eyes on the property, please let us know if you see any termite activity. They usually swarm in the spring and you can’t miss them. Please notify our office immediately if you notice any signs of what you believe may be termites. • Please do not store wood against the exterior of the house. • We strongly recommend you use a licensed pest control company to manage pests rather than doing it yourself. If you need assistance selecting a pest control company, we can refer you to the one we use.

@Matthew Kreitzer gives a solid warning here. . . 

Texas Property Code 92.006 sets forth landlord/tenant rules regarding the duties and obligations that a landlord can waive.  A landlord can only put the burden on the tenant for a condition that materially effects the health and safety of a tenant in very limited circumstances (pests and rodents probably are likely a health and safety risk). Trying to put the onus on the tenant for pest control is opening yourself up for a lawsuit, offset in your rent collection by a tenant that pays for the pest control, or other tenant remedies.  

The only real exception is if you own only one rental property and meet a handful of other criteria listed out in the code.  Anyone renting in Texas should get very familiar with Texas Property Code 92 before trying to add terms to TAR or other lease.

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Previous versions of the TAR lease did contain a clause similar to the one presented by @Matthew Kreitzer

On a side note, when I first became licensed in 1989 the TAR lease was 4 pages and now it is 16. I assume it will be a novel by the time I retire

@Bret Allen We provide the house pest-free and will re-treat if reported in the first 30 days.

Our lease has had the term "any additional or periodic pest control is the responsibility of the tenant" for at least the 11 years I've been here, and it has been vetted by our attorney.

I understand your opinion may differ, but I would rather have a tenant raise the issue of being responsible for their own cockroach problem (we do SFH, so neighbors don't play in) than being named in a suit for damages because somebody had a fatal reaction to our pest control vendor's choice of chemicals. I had one tenant who reacted badly to the concrete sealer used on pet urine.

Putting the choice on the tenant so they can take sensitivities into account is far better, IMO.

@Robert Melcher  You bring up a couple good discussion points here.  

I am not your attorney and I am not giving anyone legal advice in this forum.  Many successful people run their businesses by weighing the risks and rewards.  It sounds like you have made a business decision that you are comfortable with after consulting with your attorney.  That is how it should be.   This rest of this post is not to second guess you and your attorney's decision as we probably don't have all the facts! 

However, my general thought on this issue (for everyone else looking in and trying to decide their risk tolerance) hasn't changed.  Everyone else should read the Code and find a local attorney to help you evaluate the law correctly so you can understand your risks in putting a clause in your lease that changes the burden of repair/maintenance from the landlord to the tenant. . . 


Here are a couple excerpts from the Code (TPC 92.06) that everyone else may want to consider . . . 

"(c) A landlord's duties and the tenant's remedies under Subchapter B, which covers conditions materially affecting the physical health or safety of the ordinary tenant, may not be waived except as provided in Subsections (d), (e), and (f) of this section.

(d) A landlord and a tenant may agree for the tenant to repair or remedy, at the landlord's expense, any condition covered by Subchapter B. 

(e) A landlord and a tenant may agree for the tenant to repair or remedy, at the tenant's expense, any condition covered by Subchapter B if all of the following conditions are met:

  • (1) at the beginning of the lease term the landlord owns only one rental dwelling;
  • (2) at the beginning of the lease term the dwelling is free from any condition which would materially affect the physical health or safety of an ordinary tenant;
  • (3) at the beginning of the lease term the landlord has no reason to believe that any condition described in Subdivision (2) of this subsection is likely to occur or recur during the tenant's lease term or during a renewal or extension; and
  • (4)
    • (A) the lease is in writing;
    • (B) the agreement for repairs by the tenant is either underlined or printed in boldface in the lease or in a separate written addendum;
    • (C) the agreement is specific and clear; and
    • (D) the agreement is made knowingly, voluntarily, and for consideration.

@Bret Allen

"(c) A landlord's duties and the tenant's remedies under Subchapter B, which covers conditions materially affecting the physical health or safety of the ordinary tenant, may not be waived except as provided in Subsections (d), (e), and (f) of this section."

The wording of this section begs the question: If I provide a clean pest-free house at the start of the lease, and the tenant leaves filth and waste all over and creates the habitat for the pest infestation, am I at fault for not cleaning up his mess and treating his bug problem?

I believe the intent of this section is that hazards NOT of the tenant's creation fall to the landlord.

If the tenant does what he should, I should never treat any pests at all.

@Robert Melcher

 I am totally agree w/ you, I've handed tenant pest free premise and now being requested to perform professional pest control service because tenant did not take care the place.  

Isn't Article "e" section (2) declares if the dwelling is free from any condition, LL is not responsible for it?  that's how I understood that statement

2) at the beginning of the lease term the dwelling is free from any condition which would materially affect the physical health or safety of an ordinary tenant;

I'm not a lawyer, just a lowly landlord, but it seems to me that this phrase is the key: "materially affect the physical health or safety of an ordinary tenant."  

A spider or ant here and there does not materially affect the physical health or safety of an ordinary tenant.  A rat infestation does.

My situation is that I did pest control before move in. Then I did a follow up pest control a couple weeks after move in when the tenant reported ants. We're now a couple months in and he's reporting scorpions. I have asked him to do his own pest control, but if he insists on my calling the pros again, I'll probably have to cave. What are your thoughts? This is a SFH.

I have to admit that I become slightly annoyed when a tenant contacts me every time they see an ant in the house.  At my own house, I get traps from the grocery store or that home shield spray from Home Depot.  Works fine.  But as soon as a tenant knows they don't have to pay for it, they demand professional service every time a fly comes in the front door.