1. Property Management Webinar Series The New Repair Paragraph of the TAR Lease Instructed by Edra Anderson, Associate Counsel August 18, 2010

2. Common Misconceptions
What Tenants believe constitutes a covered repair:
Prior leasing experience at their apt community where everything was fixed
Previous landlord policies they had experienced at the last home they rented
Information they “assume” was law taken from other states they lived in or from experiences
Tenants’ determination of what really affects their personal health and safety never considering themselves anything but “ordinary”

3. Landlord’s Duty to Repair
TPC §92.052(a) – A landlord shall make a diligent effort to repair or remedy a condition if:
the tenant specifies the condition in a notice to the person to whom or to the place where rent is normally paid;
the tenant is not delinquent in the payment of rent at the time notice is given; and
the condition:
materially affects the physical health or safety of an ordinary tenant; or
arises from the landlord’s failure to provide and maintain in good operating condition a device to supply hot water of a minimum temperature of 120 degrees Fahrenheit.
TAR Lease – Paragraphs 17 & 18 require that notice be in writing.

4. Summary
Landlord’s duty to repair arises only if the following requirements are met:
notice is given to Landlord;
TAR Lease requires written notice
tenant is not delinquent in rent; and
the condition threatens the health or safety of an ordinary tenant.

5. When is Landlord not obligated to repair?
TPC § (a)(2) – Landlord does not have a duty to repair if tenant is delinquent in rent at the time notice is given.
TPC § (b) – Unless the condition was caused by normal wear and tear, the landlord does not have a duty during the lease term or a renewal or extension to repair or remedy a condition caused by:
the tenant;
a lawful occupant in the tenant’s dwelling;
a member of the tenant’s family; or
a guest or invitee of the tenant.

6. “Normal wear and tear”
TPC § (4) – “Normal wear and tear” means deterioration that results from the intended use of a dwelling, including, for the purposes of Subchapters B and D, breakage or malfunction due to age or deteriorated condition, but the term does not include deterioration that results from negligence, carelessness, accident, or abuse of the premises, equipment, or chattels by the tenant, by a member of the tenant’s household, or by a guest or invitee of the tenant.
TAR Lease (Same as Property Code, condensed) – “Normal wear and tear” means deterioration that occurs without negligence, carelessness, accident, or abuse.

7. When is Landlord not obligated to repair?
TAR Lease – Same as Property Code
18(A) – Landlord is not required to make repairs if tenant is delinquent in rent at the time notice is given.
18(D)(2) – Landlord will not repair conditions caused by tenant, an occupant, or any guest or invitee of tenant unless caused by landlord’s negligence.
However, if something wears out or is broken through “normal wear and tear,” landlord is obligated to repair.

8. Summary
The Texas Property Code and the TAR Lease do not require Landlord to make repairs if:
tenant is delinquent in rent; or
the condition is caused by the tenant, his guests, or occupants.
However, if something wears out or is broken through normal use, landlord has a duty to repair.

9. Casualty Loss
TPC § – If a repair results from an insured casualty loss, such as fire, smoke, hail, explosion, or similar case, landlord does not have to make repairs until landlord receives the insurance proceeds.
If the casualty loss is not caused by the negligence or fault of the tenant or a guest AND the rental property is “totally unusable” for residential purposes, either tenant or landlord may terminate the lease by giving written notice any time before repairs are completed.
If the lease is terminated, tenant is entitled to a pro rata refund of the rent and to a refund of any security deposit otherwise required by law.
If the casualty loss is not caused by the negligence or fault of tenant or a guest AND the rental property is “partially unusable” for residential purposes, tenant is entitled to reduction in the rent in an amount proportionate to the extent the premises are unusable, but only on judgment of a county or district court.

10. Casualty Loss TAR Lease – Same as Property Code
Paragraph 25 – Section , Property Code governs the rights and obligations of the parties regarding a casualty loss to the Property. Any proceeds, payment for damages, settlements, awards, or other sums paid because of a casualty loss to the Property will be Landlord’s sole property. For the purpose of this lease, any condemnation of all or a part of the Property is a casualty loss.

11. Who does Tenant contact for emergency repairs?
TPC § – Emergency Phone Number
A landlord that has an on-site management or superintendent's office for a residential rental property must provide to a tenant a telephone number that will be answered 24 hours a day for the purpose of reporting emergencies related to a condition of the leased premises that materially affects the physical health or safety of an ordinary tenant.
No requirement that that the number be answered by a “live” person (it may be answered by a person, answering device, or forwarded to a pager).
The landlord must post the phone number required by Subsection (a) prominently outside the management or superintendent's office.
This section does not apply to or affect a local ordinance governing a landlord's obligation to provide a 24-hour emergency  contact number to a tenant that is adopted before January 1, 2008, if the ordinance conforms with or is amended to conform with this section.
A landlord to whom Subsection (a) does not apply must provide to a tenant a telephone number for the purpose of reporting emergencies described by that subsection.

12. Who does Tenant contact for emergency repairs?
TAR Lease - 18(A) allows for landlord to provide a number to call in the event of an emergency (contact number may be answered by device stating all repair requests must be in writing).
Repairs to the heating and air conditioning system are not considered emergencies.

13. When is Landlord liable?
TPC § (b) – A landlord is liable if:
tenant has given landlord notice to repair a condition;
the condition materially affects the physical health or safety of an ordinary tenant;
tenant has given landlord a subsequent notice;
A subsequent notice is only required if tenant initially gave notice in person or by regular mail (rather than by registered mail or certified mail, return receipt requested).
landlord has had a reasonable time to repair the condition after landlord received tenant’s notice, and if applicable, tenant’s subsequent notice;
landlord has not made a diligent effort to repair; and
tenant was not delinquent in rent at the time any notice was given.

14. When is Landlord liable?
What is a “reasonable time” to repair?
TPC § (d) – Rebuttable presumption that 7 days is reasonable.
Factors that will rebut the presumption include the date Landlord receives notice, severity and nature of the condition, and availability of labor, materials, and utilities.
What is a “diligent effort” to repair?
To take reasonable steps to repair and to not delay in attempting to make the repairs.

15. When is Landlord liable?
TAR Lease – 18(B) Landlord is liable if Landlord fails to repair a condition that materially affects the physical health or safety of an ordinary tenant as required by the lease or Property Code.
18(C)(2) Landlord is not required to complete a repair on a day other than a business day unless required to do so by the Property Code.

16. Tenant’s Remedies TPC § 92.056(e) – Tenant may:
terminate the lease;
have the condition repaired or remedied;
deduct from the tenant’s rent, without necessity of judicial action, the cost of the repair or remedy; and
obtain judicial remedies.
TAR Lease – Same as Property Code
18(B) recommends that tenant consult an attorney or carefully review the procedures before exercising these remedies.

17. What happens if Tenant elects to terminate lease?
TPC § (f) – Tenant who elects to terminate the lease is:
entitled to a pro rata refund of rent from the date of termination or the date the tenant moves out, whichever is later;
entitled to deduct the tenant's security deposit from the tenant’s rent without necessity of lawsuit or obtain a refund of the tenant’s security deposit according to law; and
not entitled to the other repair and deduct remedies or the judicial remedies.
TAR Lease – Same as Property Code

18. What is the repair-and-deduct remedy?
TPC § – Tenant may have the condition repaired and may deduct the cost from a subsequent rent payment if:
Tenant must have a local housing, building, or health official or other official having jurisdiction notify landlord in writing that the condition affects the material health or safety of tenant; and
Tenant has given notice to landlord, and if required, a subsequent notice, and at least one of those notices states that tenant intends to repair the condition. The notice shall also contain a reasonable description of the intended repair.

19. When can Tenant repair-and-deduct?
TPC § (b),(f),(h),(j) – If the above conditions are met and landlord still fails to repair in a reasonable time, tenant may repair-and-deduct in the following manner:
Tenant’s deduction for the costs may not exceed the amount of one months’ rent or $500, whichever is greater. If tenant’s rent is subsidized in whole or in part by a governmental agency, the deduction limitation of one month’s rent shall mean the fair market rent of the dwelling.
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. Repairs may not be made by tenant, tenant’s immediate family, tenant’s employer or employees, or a company in which tenant has an interest.
Repairs must be made in compliance with applicable building codes, including obtaining a building permit when required. When deducting the cost of repairs from the rent, tenant shall furnish landlord, along with the balance of the rent, a copy of the repair bill and the receipt (may be the same document).

20. What is the repair-and-deduct remedy?
TPC § (d)-(e) – Tenant may exercise the repair-and-deduct remedy without having an official send verification that the condition is a threat to tenant’s health or safety in the following situations:
Landlord fails to remedy the backup or overflow of raw sewage inside tenant’s dwelling or the flooding from broken pipes or natural drainage inside the dwelling; or
Landlord has agreed to supply potable water to tenant’s dwelling and the water service to the dwelling has totally ceased.
The condition involves inadequate heat or cooled air.
If the condition involves sewage or flooding, tenant may repair and deduct immediately after giving notice. If the condition involves the lack of water or inadequate heat or cooled air, tenant may repair and deduct 3 days after giving notice.

21. When can Tenant make repairs?
TAR Lease – 18(C)(1) provides that tenant may not repair any condition without obtaining Landlord’s permission.
All decisions regarding repairs will be at Landlord’s sole discretion.

22. What will Landlord pay?
TAR Lease - Landlord will pay to repair conditions if Tenant complies with the procedures for requesting repairs as described in Paragraph 18.
18(D)(1) – Landlord will pay the entire cost to repair the following items not caused by Tenant or Tenant’s negligence:
heating and air conditioning systems;
water heaters; or
water penetration from structural defects.
Old TAR Lease – Deductible in Paragraph 18 was removed due to Member confusion and misuse.

23. What will Landlord NOT pay?
TPC § (f) – Landlord and tenant may agree that, except for those conditions caused by the negligence of landlord, tenant has the duty to pay for repair of the following conditions:
damage from wastewater stoppages caused by foreign or improper objects in lines that exclusively serve the tenant’s dwelling;
damage to doors, windows, or screens; and
damage from windows or doors left open.

24. What will Landlord NOT pay?
TAR Lease –18(D)(2) – Landlord will NOT pay to repair the following items unless caused by Landlord’s negligence:
conditions caused by Tenant, an Occupant, or any guest or invitee of Tenant;
damage to doors, windows, screens;
damage from windows or doors left open;
damage from wastewater stoppages caused by foreign or improper objects in lines that exclusively serve the Property;
items that are cosmetic in nature with no impact on the functionality or use of the item; and
the following specific items or appliances:________________.
Landlord will warranty all appliances unless otherwise provided in Paragraph18(D)(2)(f).
Note: Landlord will NOT pay for repairs to doors, windows, or screens. However, Landlord is obligated to pay for repairs to security devices (see next slide).

25. Security Devices
“Security device" means a doorknob lock, door viewer, keyed dead bolt, keyless bolting device, sliding door handle latch, sliding door pin lock, sliding door security bar, or window latch in a dwelling. TPC § (11).
TPC § – Landlord has a duty to repair or replace a security device on request or notification by the tenant that the security device is inoperable or in need of repair or replacement.
TPC § – A tenant's request or notice may be given orally unless otherwise stated in a written lease.
TAR Lease – Paragraph 19(B) requires all notices or requests for repairing security devices be in writing.

26. Smoke Detectors
TPC § (c) – Landlord has a duty to inspect and repair a smoke detector, but only if the tenant gives the landlord notice of a malfunction or requests to the landlord that the smoke detector be inspected or repaired.
TAR Lease – Paragraph 20 requires only that additional requests for repairs be in writing.

27. Judicial Remedies TPC § 92.0563(a) – Tenant’s judicial remedies:
an order directing landlord to take reasonable action to repair condition;
an order reducing tenant’s rent, from the date of the first repair notice, in proportion to the reduced rental value resulting from the condition until the condition is repaired;
a judgment against landlord for a civil penalty of one month’s rent plus $500;
a judgment against landlord for the amount of tenant’s actual damages; and
court costs and attorney’s fees, excluding any attorney’s fees for a cause of action for damages relating to a personal injury.

28. Judicial Remedies
TPC § (c) – The justice, county, and district courts have concurrent jurisdiction.
Effective Jan. 1, 2010, JP courts have jurisdiction to order repairs.
TPC § (a)-(b) – Burden of proof is on tenant in a judicial action unless landlord fails to provide a written explanation for delay.
TAR Lease – Same as Property Code

29. Thank you Thanks for your participation in our 2nd PM Webinar!
Future Topics
A. Credit Reporting – October
B. Security Deposit – December
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