- The Lease - Before You Sign
- Breaking a Lease
- Renter's Insurance
- Repair Problems
- Security Deposit
The Lease - Before You Sign
Is an apartment lease a legal contract?
Yes. If you do not understand something in your lease or if the landlord's explanation appears to be contrary to what you believe the lease means contact this office, a tenant's organization, or a private attorney BEFORE you sign. At the very minimum, be sure that all the blanks are filled in properly and that all options have been chosen.
When signing a lease, look out for and try to negotiate out provisions which:
- Allow the landlord to automatically deduct a fixed cleaning fee from your security deposit;
- Give the landlord the right to take certain pieces of property if you fall behind on the rent;
- Allow the landlord to enter your home without prior notice to you;
- Limit your right to repairs (e.g. plumbing stoppages, and conditions other than those which threaten your health or safety) or arbitrarily extend the time period for a landlord to make repairs or require you to pay a fixed amount for each repair; and
- Allow the landlord to retain your entire security deposit if proper notice of move-out is not provided.
How can I protect my rights?
- Put things in writing - including promises made by the landlord, any complaints you have, and notices the lease requires you to give to the landlord. Both the landlord and you should sign and date the writing;
- Read the lease or any document before you sign, making sure that blanks are filled out correctly;
- Keep copies of every document; and
- Get proof the landlord received documents sent by you. Get rent receipts. Send important letters and notices by certified mail, return receipt requested; or ask the landlord to sign and date your copy of the document.
If my roommate and I have both signed the lease, can he or she act for me without my consent?
Yes. Be sure that you and your roommates are in agreement on issues regarding your lease. Since you have both signed, one person can speak for all of the roommates, and it is NOT the landlord's responsibility to find out if all of the tenants have discussed and are in agreement on the issue.
How can I be sure that I am picking a good apartment?
- Look at the actual unit you plan to rent before you sign any document or put down any money;
- Check out the area in the evening for outside lighting, parking and safety;
- Ask current residents how they like the complex;
- Check around the units for obvious maintenance problems; and
- Get a crime statistics report for the area from the police department.
Does a landlord have to inform me of the crime rate in the apartment's immediate vicinity?
No. However, while there is no duty for a landlord to be responsible for the safety of the tenants and their property, there is a duty for the landlord to take reasonable and necessary precautions to protect both the property and the tenants from foreseeable harm if promises of safety have been made to the tenant (written are best) or security devices are present but not operational because of negligence on the part of the landlord. You should pay close attention to the type of neighborhood you are considering for your residence. The Austin Police Department's website provides crime statistics for a given geographical area.
Breaking a Lease
Texas law provides two situations in which a tenant may break an otherwise valid lease without penalty:
1) a temporary injunction, ex parte order or protective order is issued against the abuser;
2) a copy of the temporary injunction, ex parte order or protective order is provided to the landlord; and
3) the victim abandons the property.
A victim or the parent/guardian of a victim of sexual assault, aggravated sexual assault or continual sexual abuse of a child may terminate a lease if the assault(s) occurred on the rental premises within six months of the termination date.
Certain notice requirements apply; we recommend you consult our office before attempting to terminate your lease under this these laws. In some situations, a tenant may terminate his/her lease upon entering military service. Termination may also be available to service members who are permanently transferred or deployed for a period of 90 days or more. Again, we recommend you consult our office if you believe this provision may apply to your situation.
Can I otherwise break my lease?
Not without severe financial consequences. However, if the reason for leaving is caused by the landlord's noncompliance with the lease or failure to repair a condition that affects the health or safety of the tenant or a lack of hot water issue, certain steps may be taken which are described in other sections of this handbook.
If I have personal reasons for needing to vacate before the end of the lease, what are all of my alternatives and what penalties might I suffer?
- Sublet the apartment with landlord's written approval. The problem with subletting is that the tenant remains responsible to the landlord if the subletting tenant fails to pay rent or damages the premises;
- Negotiate a settlement or a mutual release of the lease. The tenant may have to pay some money to the landlord and/or agree to forfeit the deposit. If an agreement is reached, it should be in writing, signed, and a copy given to all parties;
- Move out with notice to the landlord. The TAA lease (a very common local lease form) requires that the landlord make a good faith attempt to reduce damages by arranging to rent the apartment to a new tenant. However, the leaving tenant will be responsible for the time the apartment remains vacant during the remainder of the lease term unless the landlord does not make a good faith effort to release the unit. In addition, the lease may require a tenant to pay the cost of re-letting. Also, the lease may allow the landlord to enforce a landlord's lien or contractual lien by taking some of the tenant's property from the unit until these financial obligations are met; or
- Move out without giving the landlord any notice or arranging for a replacement tenant. The landlord will be unable to enforce a lien against your property, but the unit may sit open for a longer period of time before a new tenant is located. You are liable for this "down" time.
Does my landlord have to make an effort to relet my unit once I have broken the lease?
Yes. Landlords must make a good faith effort to lessen their damages in the event you move out early.
Am I liable for the reletting cost if I break the lease?
Yes. Landlords usually charge the full amount indicated in the relet portion of the lease regardless of their actual costs. This amount is normally stipulated to be 85% of one month's rent. However, it is arguable that such charges are legally enforceable only to the extent of actual costs which the landlord can prove that s/he has incurred (cost of advertising, leasing fee to a realtor, cost of preparing a new lease, etc.).
What other monetary damages could I be responsible for?
The tenant will be responsible for repair of any damage and cleaning of conditions caused by the tenant beyond ordinary wear and tear. If your landlord knows that you are planning to move out early, and if your lease allows, the landlord can immediately demand full payment of the rent for the remainder of your lease term without any notice to you, and initiate a landlord's lien. (The TAA lease allows for all of this).
If I break my lease, what will happen to my security deposit?
Your security deposit will not be refunded, but it will be credited against the amount that the landlord determines that you owe.
What is a landlord's lien and when can it be used against me?
Normally allowed by the lease, a landlord can seize certain non-exempt property roughly equivalent in value to the amount of rent you owe, and can hold the property until you pay the amount owed or sell the property at an auction and apply the proceeds to your debt. The lien can also be used if the lease rent has been accelerated because of a tenant default.
Some of the property which cannot be seized under this lien are:
- tools and books of a trade or profession;
- a family library;
- family portraits and pictures;
- one couch, two living room chairs, and a dining table and chairs;
- beds and bedding;
- kitchen furniture and utensils;
- one car and one truck;
- children's toys not commonly used by adults;
- goods that the landlord knows are not owned by the tenant; and
- goods that the landlord knows are subject to a recorded lien or financing agreement.
If the landlord does not seize my property, what is likely to happen if I do not pay the damages s/he claims?
A landlord can report the debt to a credit reporting agency and it will show up as an outstanding debt on your credit history. When you apply for a loan or a credit card, and a creditor requests your credit history, the landlord's report of the debt may cause your loan or credit card application to be denied.
Also, a landlord can sue you. If the landlord wins the lawsuit, a judgment will be entered against you, and it may show up on your credit history if it goes unpaid. Texas law provides certain protection to judgment debtors. Homesteads and certain personal property (valued up to $30,000 if the debtor is single or $60,000 if married) are exempt and cannot be seized or sold by forced sale to pay off the judgment. Note that neither cash nor money on account in financial institutions is exempt and these can be seized by means of a lawsuit from the creditor against your bank account. If you are sued, or if a judgment is taken against you, consult an attorney.
Do I need renter's insurance?
Yes. Many tenants assume that the landlord will cover any losses that occur from events not caused by the tenants -- such as fire or floods. However, for the landlord to be liable, the landlord either would have had to know or should have known about the problem, and then either failed to repair it or repaired it with poor workmanship.
If you have renter's insurance, your insurance company will issue a check to cover the loss and then possibly proceed against the responsible party. Renter's insurance is not very expensive and covers loss of property when something you own is stolen or destroyed by fire, water, or other casualty loss. You can get insurance that will reimburse you for either the "fair market value" or the "replacement cost" of the lost or damaged property.
When does a landlord have to make repairs to my apartment?
The Texas Property Code requires landlords to fix any problem that affects the health or safety of "an ordinary tenant" or if there is a lack of hot water issue. Your lease may increase the landlord's responsibility to repair a wider range of conditions. Be sure to check your lease. The Texas Property Code has five basic requirements tenants must meet to use the law:
- You must be current on your rent;
- You, your family, or your guests must not have caused the problem; and
- You must give your landlord one written notice by either certified or registered mail of the specific repairs that need to be made. Be sure to keep a copy of the notice;
- You may also wish to contact the City of Austin Housing Code Enforcement Inspectors to verify defects that might be a violation of the City of Austin's Building Codes. This will increase the proof that what you are complaining of is a serious health, safety, or "reasonable request for repair" issue...as well as demonstrating that the landlord is in violation of a local law. Please see the back of this booklet for the Inspectors' phone number.
- If the landlord has not made a diligent effort to begin those repairs within a reasonable time (which is usually assumed to be seven days unless unusual circumstances suggest a longer or shorter time frame is more appropriate), you may terminate the lease without going to court, hire someone to make the repairs and deduct the cost from the next month's rent, or you can go to court and obtain one month's rent plus $500 as a penalty and/or get a judge's order requiring the landlord perform the necessary repairs;
- If you do not send the first written notice by certified mail, then the statutes require that a second notice be sent stating that the landlord must commence repairs in good faith within seven days of receiving your second notice, before the normal remedies might be available to you.
If I discover mold in my apartment, can I break the lease?
Probably not. There are no specific state or local health regulations that offer you a remedy if mold is discovered in your residence. However, if you can prove through medical or other scientific documentation that you have, or could develop, a materially adverse health condition that derives primarily from mold growth, you may be able to insist upon the removal of the mold under the health provision of the repair requirements in your lease. You should consult an attorney before trying to terminate your lease in this situation.
If I meet all five requirements above, what remedies are available to me?
- If you are fed up with the unsafe conditions and are ready to move, the Texas Property Code gives you this right. However, be careful because landlords are unlikely to believe that you have the right to unilaterally terminate your lease and move out early. If the landlord becomes aware of your intentions and if your lease allows it, the landlord may accelerate your rent and take some of your property under the landlord's lien or contractual lien. (See section on Landlord's Lien above.) After you move out, you can sue the landlord for: (1) any unused portion of your rent, (2) your security deposit, (3) one month's rent plus $500, (4) actual damages (possibly moving costs and utility connection fees), and/or (5) court costs and attorney's fees;
- If you want to stay and force your landlord make the repairs, you can sue your landlord for: (1) an order requiring the landlord to make the repairs, (2) a reduction in your rent beginning at the time you first notified the landlord of the condition, (3) one month's rent plus $500, (4) actual damages, and/or (5) court costs and attorney's fees; or
- If you want to stay and hire someone to fix the problems yourself, you must first get a housing, building or health inspector to give the landlord a written notice that the condition is a threat to the health or safety of "an ordinary tenant" -- unless the condition is a raw sewage back-up or overflow inside your home, flooding from broken pipes or natural drainage inside your home, a heating or air conditioning problem, or if you have no water service the landlord has agreed to furnish, in which event the time frames for initiating repairs are shorter. The deduction from the rent for the cost of repairs cannot exceed one month's rent, or $500, whichever is greater (however, this total may be able to be repeatedly deducted over several months).
There are other requirements for making the repairs yourself, so be sure to check with our office, a tenant organization, or a private attorney before pursuing the repair and deduct remedy.
Under what conditions should my security deposit be returned?
If a tenant does not do any damage and fulfills her/his obligations, her/his deposit should be returned. To get your deposit back, you should:
- Leave owing no rent;
- Fulfill the lease agreement;
- Return the key;
- Leave the place clean and cause no damage -- beyond "normal wear and tear;"
- Give the landlord your forwarding address in writing; and
- Give notice that you are leaving. (Most leases require 30 days advance written notice.)
When does a landlord have to return my security deposit?
A landlord is obligated to return your security deposit and/or give you a written itemized list of deductions for repairs and cleaning within 30 days after you move out or give the landlord written notice of your forwarding address (whichever is later).
What damages may I collect if s/he does not return the deposit on time?
If the landlord refuses to return your deposit or if you do not agree with the deductions, you can sue for your deposit. If the landlord keeps the deposit in bad faith, you can sue for three times the amount of the deposit wrongfully withheld, plus $100, attorney's fees, and court costs.
How can I help ensure the return of my deposit?
- Fill out a Check-In/Check-Out list when you move in and out. Have it witnessed by someone not living on the premises and by the landlord and keep a copy;
- After you have cleaned the unit prior to moving out, ask the landlord to walk-through with you and to tell you what needs to be cleaned or repaired so that you have the opportunity to clean or repair; and
- Take pictures or videos of the unit both before you move in and after you move out.
WARNING!!! A TENANT WHO WITHHOLDS THE LAST MONTH'S RENT THINKING THAT THE DEPOSIT WILL COVER THE AMOUNT DUE CAN BE SUED FOR THREE TIMES THE AMOUNT OF RENT WRONGFULLY WITHHELD PLUS ATTORNEY'S FEES.
When may a landlord ask me to move out?
If the tenant -
- Does not pay the rent or pays the rent late(there is a one-day grace period between the rent due date and the date rent is legally considered late);
- Breaks part of the lease (such as having a pet without permission, moving extra people in, disturbing neighbors, or destroying property); or
- Refuses to move after proper notice.
If the landlord wants to evict me, what procedures must be followed?
- The landlord must first give you a notice to vacate. You are entitled to a three-day notice unless your lease says otherwise;
- If you do not move when you get the notice to vacate, the landlord can file an eviction procedure (called a Forcible Detainer Suit) with the Justice Court;
- A constable or sheriff will give you notice that the lawsuit has been filed. It can be delivered in person to you or to someone sixteen years or older at your address, or it can be posted on your door with a copy sent by mail;
- You usually have seven days in which to contact the court and have a hearing scheduled. If you do not contact the court you lose the right to tell your side of the story, and you will automatically lose;
- If you lose at the hearing, you have five days after the hearing to move out or appeal the case; and
- If you do not move out within five days of the hearing, the landlord can get a "Writ of Possession" on the sixth day which gives the constable the power to move you out and set your property outside, by force if necessary.
Is it legal for a landlord to evict me by changing the locks?
No. The landlord is allowed, however, to change the locks if you are behind on your rent, as long as s/he leaves a note on the door stating where you can get a copy of the key, 24 hours a day. If the landlord locks you out and refuses to give you a key, you can file a lawsuit with the Justice of the Peace for re-entry, the greater of one month's rent or $500, actual damages, attorney's fees, and court costs, less any money you owe the landlord.
NOTE: IT IS ILLEGAL FOR A LANDLORD TO CUT OFF YOUR UTILITIES WHEN YOU ARE BEHIND ON THE RENT.
What if the property I'm renting is foreclosed upon?
The Protecting Tenants at Foreclosure Act requires the immediate successor in interest at foreclosure to 1) provide tenants with 90 days notice prior to eviction; and 2) allow tenants with leases to occupy the property until the end of the lease term, except the lease can be terminated on 90 days notice if the unit is sold to a purchaser who will occupy the property.
DISCLAIMER: The following post script is intended to be HUMOROUS list of comments the Legal Services for Students office has heard from our clients. It is intended to be instructional in advising students what NOT to do with respect to landlords. IT IS NOT TO BE TAKEN OR INTERPRETED AS LEGAL ADVICE.
Twelve Truisms in Landlord/Tenant Law or What "Everyone" Knows:
- The apartment will be absolutely spotless when you move in.
- Amendments to the lease never need to be in writing.
- The landlord will repair everything requested ASAP.
- When your roommate moves out, you only have to pay half the rent.
- If you find a less expensive place you can move out immediately with no consequences.
- If the landlord is rude, you can break the lease.
- If you do not like your roommate, you can break your lease.
- Your friends can live with you for as long as you want and not be on the lease.
- You'll always get your full deposit timely refunded with no deductions.
- Rent can be paid at any time and in any amount.
- The apartment is always in better condition when you move out than when you moved in.
- The landlord cannot enter my apartment without my consent.