Tenant Notice to repair or withhold the rent

8 Replies

Hello All,

We have a tenant in Dallas and one of the tenant on lease send a written notice stating if we do not repair following items she will not pay rent for next month. 

Window in master BR/minor fence fix/range for burner.

Question/Suggestion:

1. How or what should we reply to tenant or do we need to reply her?

2. Can tenant hold rent for landlord not fixing minor stuff? 

Thanks for your suggestion and guidance/ I am surprise, that this tenant never paid rent on time plus give us notice.

Check your state laws. I doubt any state would allow withholding because of a minor fence fix. Window and stove would depend on what you were talking about. 

Other than emergencies you are allowed a reasonable amount of time to make repairs in virtually all areas. If she has not notified you of needed repairs before, it is simple: let her know someone will inspect the unit and check the issues noted, and that rent will be paid as required. If she has notified you and you've ignored it, and they're reasonable non-tenant caused issues, get them repaired and still expect rent to be paid as required.

No matter either case, if she doesn't pay as required post and begin the eviction process. 


@JD Martin , thanks for prompt response. Yes she did notify me in last week of July and I did send my contractor to check it out and it seems everything is minor fix. The problem is she never pay rent on time so I said will fix it once i get the rent. She do pay rent by 7 or so with late fee. I spoke to eviction lawyers about it and they said in court we will not win because she pays rent with late fees.

OK, well there's your first mistake. Whether you maintain your property is independent of whether she pays the rent. You are generally required to maintain the property properly regardless if they pay or not. If they don't pay, you evict. You don't get to horse trade landlord-required repairs. 

JD is absolutely correct.  These are separate issues that have no direct correlation with one another.

Typically tenants can only hold rent for emergency or unlivable conditions.  If she refuses to pay rent then notify her that late fees are still applicable due to the minor maintenance items.

Actually if you are using a basic TAR or TAA lease in Texas, the lease clearly states that no repairs other than those that affect the health or safety of the tenant need to be completed if rent is delinquent

Additionally, Texas law states that rent cannot be withheld for reasons other than health or safety AND after proper notice and a reasonable time to repair has been given 

@Greg H. yes she is making big fuzz saying since fence is broken (it actually bend little) the neighbors dog can come and bite me, burner is not working cannot cook infact 3 of them are working and window not working properly so if there is fire i cannot escape and so forth.. :(

This applies only to Texas tenancies.
TAR and TAA will land your *** in trouble because it has provisions that are unenforceable or a hazard to the landlord if enforced.

Waiver or Expansion of Duties and Remedies: Texas Property Code §§91.006(b), 92.006, 92.355*
 A landlord’s duty or tenant’s remedy concerning the following may not be waived:

  • Security deposits
  • Security devices
  • Disclosure of ownership and management
  • Utility cutoffs
  • Smoke detectors, except for the landlord’s duty of inspection and repair
  • Repairs, except in limited circumstances.
  • *Rental Application provisions
  • A lease provision that purports to waive a landlord’s duty to mitigate damages is void.

Repair Notice

  • A tenant’s notice must be in writing only if required to be in writing pursuant to a written lease. Tex. Prop. Code §92.052(d).
  • Note, however, that a tenant will have to provide at least one written notice before the Landlord is liable for failing to repair. Tex. Prop. Code §92.056(b)(3).

Two Methods of Notice

  • A tenant is required to give the landlord a second written notice to repair before the landlord is liable unless the first notice was sent to the landlord by certified mail, return receipt requested or by registered mail or (effective 1/1/16) any form of mail that allows tracking.
  • Tex. Prop. Code §92.056(b)(3).

Repair Must be Made within Reasonable Time

  • A landlord has a reasonable time to repair the condition. Tex. Prop. Code §92.056(b)(4).
  • There is a rebuttable presumption that 7 days is a reasonable time. Tex. Prop. Code §92.056(d).

Affidavit for Delay

  • A landlord may extend the time period to repair by filing an Affidavit for Delay. Tex. Prop. Code §92.0562.
  • Lack of Parts = 15 days
  • Lack of Labor = 30 days

Failure to Repair Remedies

  • If a landlord is liable for failing to repair, the tenant may terminate the lease. Tex. Prop. Code §92.056(e)(1).
  • Note –This remedy section does not contain the lack of hot water language. See Tex. Prop. Code §92.056(b)(2).
  • The tenant of a landlord who is liable to the tenant for failing to timely repair may recover:
  • actual damages
  • one month's rent plus $500,
  • court costs, and
  • Attorney’s fees.
  • Tex. Prop. Code §92.0563(a).

The tenant may also obtain other judicial remedies such as an order that directs the landlord to repair and an order that reduces the rent. Tex. Prop. Code §92.0563(a).

Repair Remedy

  • A Justice of the Peace may issue an Order to repair if the repair cost does not exceed $10,000. Tex. Prop. Code §92.0563(e).
  • A landlord’s appeal of a repair order from Justice Court takes precedence in county court and does not require the posting of an appeal bond. Tex. Prop. Code §92.0563(d).

TRCP Rule 509

Procedure for filing suit in Justice Court for repair issues. See TRCP Rule509

Waiving Duty to Repair

  • These duties may be waived only if the landlord owns only one rental dwelling and under limited circumstances. Tex. Prop. Code §92.006(e).
  • A landlord who knowingly contracts with a tenant to waive the landlord’s duty to repair is liable to the tenant for actual damages, one month’s rent plus $2,000, and attorney’s fees. Tex. Prop. Code §92.0561(b).

Repair & Deduct Remedy

  • A tenant also has a procedure to repair and deduct if certain requirements are met. Rental deductions are limited to $500 or one month’s rent from subsequent rental payments. Tex. Prop. Code §92.0561.
  • Beware, improperly made deductions could result in eviction of the tenant for non-payment of rent.

Repair Provisions in Lieu of Common Law

  • Kammarath v. Bennett–Established the implied warranty of habitability in Texas.
  • The duties of a landlord and the remedies of a tenant under the repair section of the Texas Property Code are in lieu of common law remedies. Tex. Prop. Code §92.061.

MORAL OF THE STORY: Fix your property.  If it's gotten to this point, either 1) tenant is a professional scammer - repair and ride it out, but don't renew and don't retaliate, or 2) you let the property deteriorate.