Tuesday, September 05, 2017
Residential Landlord and Tenant Duties After Hurricane Harvey
By Claire James
On August 25, 2017, Hurricane Harvey, the strongest hurricane to hit the Texas coastal bend since 1961, made landfall between Port Aransas and Port O’Connor. In the days that followed, the storm pounded Southeast Texas with 40-52 inches of rain, causing catastrophic flooding.
As Texans assess the damage and begin to pick up the pieces, the most pressing concern for many is housing. Hundreds of renters were forced to leave their rental homes and apartments and secure temporary housing. Meanwhile, landlords are faced with having to repair damaged properties while still meeting their financial obligations to mortgage companies and tax authorities.
Here are five quick facts for residential landlords and tenants recovering after Harvey. Please note: landlord/tenant obligations depend upon the parties’ contract. The general information in this article is based on the Texas Property Code and the Texas Apartment Association (“TAA”) standard residential lease, which is used in many – but not all – Texas residential leases. A lawyer can help you review your specific lease. If your issue concerns a commercial lease, different standards will apply.
1. Rent is due on time, even if the property is flooded.
Neither the Texas Property Code nor the TAA Lease requires a landlord to abate rent or accept late rent, even if the premises is uninhabitable. If you’re a landlord, you can choose to abate rent or accept late payment, but you’re not required to do so. If you’re a tenant, you should proactively contact your landlord to discuss your situation.
2. A landlord can terminate the lease under specific conditions.
If the residence is completely unusable for residential purposes, Texas Property Code Section 92.054(b) allows a landlord to terminate the lease by giving written notice. Under the TAA Lease (which, again, may or may not apply) a landlord can terminate the lease on five days’ written notice if the landlord believes the damage is “substantial” or that performance of repairs poses a danger to tenants.
3. A tenant can also terminate the lease, but only if the property is totally unusable for residential purposes.
A tenant can only terminate the lease, upon written notice before the repairs are completed, if the rental is “totally unusable for residential purposes.” TEX. PROP. CODE § 92.054 (b). Under the TAA Lease, a tenant must give at least five days’ written notice.
If the property is only partially unusable, a county or district court can order a tenant’s rent reduced in an amount proportionate to the extent the property is unusable. TEX. PROP. CODE § 92.054 (c). Unless the parties’ lease allows it, a tenant cannot simply pay part of the rent based on partial unsuitability; any reduction must be based on a court order.
4. A landlord’s duty to make repairs is based on when the landlord’s insurance pays the landlord.
In general, a landlord has a duty to repair conditions that “materially affect” a resident’s physical health or safety. While water-stained walls or broken appliances probably do not materially affect a resident’s health or safety, standing water or inoperable toilets probably do. In such circumstances, the landlord has a “reasonable period of time” to make repairs. However, if the landlord has insurance to cover Harvey-related losses, his or her period for repair does not begin until he or she receives insurance proceeds. TEX. PROP. CODE § 92.054 (a).
For a tenant, the best practice is to give the landlord written notice to repair or remedy by certified mail, return receipt requested. Then, keep track of the landlord’s efforts to fix the problem(s).
5. There is assistance available for landlords and tenants.
The Texas Apartment Association - a good starting place for information
The Small Business Administration - some landlords may be eligible for assistance
Airbnb Disaster Response Program – offering housing to some displaced residents
Federal Disaster Assistance - federal assistance program (FEMA)
Houston Volunteer Lawyers – various legal resources
Houston Bar Association Legal Line: 713-759-1133
Houston Volunteer Lawyers Legal Aid Clinics: 713-228-0732
Legal Aid of Northwest Texas - pro bono programs for qualifying applications: 855.548.8457
Lone Star Legal Aid - pro bono programs for qualifying applicants
Currently located at NRG Stadium, George R. Brown convention Center, and Toyota Center
Nueces County, Legal Aid & Pro Bono Services – programs for those in the Corpus Christi and Victoria regions, including Texas RioGrande Legal Aid.
State Bar of Texas Disaster Legal Hotline: 800-504-7030
Texas RioGrande Legal Aid – pro bono programs for qualifying applicants: 866-757-1570
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