I could not turn on my utilities because the landlord did not obtain a certificate of occupancy?
Full Question:
My husband & I recently moved into a leased house. I went to have our water turned on and the water department stated that they could not turn on our water as the building needed to be inspected and the landlord had to receive a certificate of occupancy. We are already living in the home. What are our rights pertaining to the lease contract. Shouldn't this have been done before we moved into the home?
05/18/2007 |
Category: Landlord Tenant |
State: Texas |
#5240
Answer:
You should carefully read your lease agreement regarding your rights and the obligations of your landlord.
The applicable Texas statutes are as follows:
§ 91.001 PROP. Notice for Terminating Certain Tenancies
(a) A monthly tenancy or a tenancy from month to month may be
terminated by the tenant or the landlord giving notice of termination to
the other.
(b) If a notice of termination is given under Subsection (a) and if the
rent-paying period is at least one month, the tenancy terminates on
whichever of the following days is the later:
(1) the day given in the notice for termination; or
(2) one month after the day on which the notice is given.
(c) If a notice of termination is given under Subsection (a) and if the
rent-paying period is less than a month, the tenancy terminates on
whichever of the following days is the later:
(1) the day given in the notice for termination; or
(2) the day following the expiration of the period beginning on the day
on which notice is given and extending for a number of days equal to the
number of days in the rent-paying period.
(d) If a tenancy terminates on a day that does not correspond to the
beginning or end of a rent-paying period, the tenant is liable for rent
only up to the date of termination.
(e) Subsections (a), (b), (c), and (d) do not apply if:
(1) a landlord and a tenant have agreed in an instrument signed by both
parties on a different period of notice to terminate the tenancy or that
no notice is required; or
(2) there is a breach of contract recognized by law.
§ 91.004 PROP. Landlord's Breach of Lease; Lien
(a) If the landlord of a tenant who is not in default under a lease
fails to comply in any respect with the lease agreement, the landlord is
liable to the tenant for damages resulting from the failure.
(b) To secure payment of the damages, the tenant has a lien on the
landlord's nonexempt property in the tenant's possession and on the rent
due to the landlord under the lease.
§ 92.008 PROP. Interruption of Utilities
(a) A landlord or a landlord's agent may not interrupt or cause the
interruption of utility service paid for directly to the utility company
by a tenant unless the interruption results from bona fide repairs,
construction, or an emergency.
(b) Except as provided by Subsections (c) and (d), a landlord may not
interrupt or cause the interruption of water, wastewater, gas, or
electric service furnished to a tenant by the landlord as an incident of
the tenancy or by other agreement unless the interruption results from
bona fide repairs, construction, or an emergency.
(c) A landlord may interrupt or cause the interruption of electrical
service furnished to a tenant by the landlord as an incident of the
tenancy or by other agreement if:
(1) the electrical service furnished to the tenant is individually
metered or submetered for the dwelling unit;
(2) the electrical service connection with the utility company is in
the name of the landlord or the landlord's agent; and
(3) the landlord complies with the rules adopted by the Public Utility
Commission of Texas for discontinuance of submetered electrical service.
(d) A landlord may interrupt or cause the interruption of electrical
service furnished to a tenant by the landlord as an incident of the
tenancy or by other agreement if:
(1) the electrical service furnished to the tenant is not individually
metered or submetered for the dwelling unit;
(2) the electrical service connection with the utility company is in
the name of the landlord or the landlord's agent;
(3) the tenant is at least seven days late in paying the rent;
(4) the landlord has mailed or hand-delivered to the tenant at least
five days before the date the electrical service is interrupted a written
notice that states:
(A) the earliest date of the proposed interruption of electrical
service;
(B) the amount of rent the tenant must pay to avert the interruption;
and
(C) the name and location of the individual to whom or the location of
the on-site management office where the delinquent rent may be paid
during the landlord's normal business hours;
(5) the interruption does not begin before or after the landlord's
normal business hours; and
(6) the interruption does not begin on a day, or on a day immediately
preceding a day, when the landlord or other designated individual is not
available or the on-site management office is not open to accept rent and
restore electrical service.
(e) A landlord who interrupts electrical service under Subsection (c)
or (d) shall restore the service not later than two hours after the time
the tenant tenders, during the landlord's normal business hours, payment
of the delinquent electric bill or rent owed to the landlord.
(f) If a landlord or a landlord's agent violates this section, the
tenant may:
(1) either recover possession of the premises or terminate the lease;
and
(2) recover from the landlord an amount equal to the sum of the
tenant's actual damages, one month's rent or $500, whichever is greater,
reasonable attorney's fees, and court costs, less any delinquent rents or
other sums for which the tenant is liable to the landlord.
(g) A provision of a lease that purports to waive a right or to exempt
a party from a liability or duty under this section is void.
§ 92.052 PROP. Landlord's Duty to Repair or Remedy
(a) A landlord shall make a diligent effort to repair or remedy a
condition if:
(1) the tenant specifies the condition in a notice to the person to
whom or to the place where rent is normally paid;
(2) the tenant is not delinquent in the payment of rent at the time
notice is given; and
(3) the condition materially affects the physical health or safety of
an ordinary tenant.
(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:
(1) the tenant;
(2) a lawful occupant in the tenant's dwelling;
(3) a member of the tenant's family; or
(4) a guest or invitee of the tenant.
(c) This subchapter does not require the landlord:
(1) to furnish utilities from a utility company if as a practical
matter the utility lines of the company are not reasonably available; or
(2) to furnish security guards.
(d) The tenant's notice under Subsection (a) must be in writing only if
the tenant's lease is in writing and requires written notice.
§ 92.056 PROP. Landlord Liability and Tenant Remedies; Notice and Time
for Repair
(a) A landlord's liability under this section is subject to Section
92.052(b) regarding conditions that are caused by a tenant and Section
92.054 regarding conditions that are insured casualties.
(b) A landlord is liable to a tenant as provided by this subchapter
if:
(1) the tenant has given the landlord notice to repair or remedy a
condition by giving that notice to the person to whom or to the place
where the tenant's rent is normally paid;
(2) the condition materially affects the physical health or safety of
an ordinary tenant;
(3) the tenant has given the landlord a subsequent written notice to
repair or remedy the condition after a reasonable time to repair or
remedy the condition following the notice given under Subdivision (1) or
the tenant has given the notice under Subdivision (1) by sending that
notice by certified mail, return receipt requested, or by registered
mail;
(4) the landlord has had a reasonable time to repair or remedy the
condition after the landlord received the tenant's notice under
Subdivision (1) and, if applicable, the tenant's subsequent notice under
Subdivision (3);
(5) the landlord has not made a diligent effort to repair or remedy the
condition after the landlord received the tenant's notice under
Subdivision (1) and, if applicable, the tenant's notice under Subdivision
(3); and
(6) the tenant was not delinquent in the payment of rent at the time
any notice required by this subsection was given.
(c) For purposes of Subsection (b)(4) or (5), a landlord is considered
to have received the tenant's notice when the landlord or the landlord's
agent or employee has actually received the notice or when the United
States Postal Service has attempted to deliver the notice to the
landlord.
(d) For purposes of Subsection (b)(3) or (4), in determining whether a
period of time is a reasonable time to repair or remedy a condition, there
is a rebuttable presumption that seven days is a reasonable time. To
rebut that presumption, the date on which the landlord received the
tenant's notice, the severity and nature of the condition, and the
reasonable availability of materials and labor and of utilities from a
utility company must be considered.
(e) Except as provided in Subsection (f), a tenant to whom a landlord
is liable under Subsection (b) of this section may:
(1) terminate the lease;
(2) have the condition repaired or remedied according to Section
92.0561;
(3) deduct from the tenant's rent, without necessity of judicial
action, the cost of the repair or remedy according to Section 92.0561;
and
(4) obtain judicial remedies according to Section 92.0563.
(f) A tenant who elects to terminate the lease under Subsection (e)
is:
(1) entitled to a pro rata refund of rent from the date of termination
or the date the tenant moves out, whichever is later;
(2) 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
(3) not entitled to the other repair and deduct remedies under Section
92.0561 or the judicial remedies under Subdivisions (1) and (2) of
Subsection (a) of Section 92.0563.
§ 92.0561 PROP. Tenant's Repair and Deduct Remedies
(a) If the landlord is liable to the tenant under Section 92.056(b),
the tenant may have the condition repaired or remedied and may deduct the
cost from a subsequent rent payment as provided in this section.
(b) The tenant's deduction for the cost of the repair or remedy may not
exceed the amount of one month's rent under the lease or $500, whichever
is greater. However, if the 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 for the dwelling and not the rent
that the tenant pays. The fair market rent shall be determined by the
governmental agency subsidizing the rent, or in the absence of such a
determination, it shall be a reasonable amount of rent under the
circumstances.
(c) Repairs and deductions under this section may be made as often as
necessary so long as the total repairs and deductions in any one month do
not exceed one month's rent or $500, whichever is greater.
(d) Repairs under this section may be made only if all of the following
requirements are met:
(1) The landlord has a duty to repair or remedy the condition under
Section 92.052, and the duty has not been waived in a written lease by
the tenant under Subsection (e) or (f) of Section 92.006.
(2) The tenant has given notice to the landlord as required by Section
92.056(b)(1), and, if required, a subsequent notice under Section
92.056(b)(3), and at least one of those notices states that the tenant
intends to repair or remedy the condition. The notice shall also contain
a reasonable description of the intended repair or remedy.
(3) Any one of the following events has occurred:
(A) The landlord has failed to remedy the backup or overflow of raw
sewage inside the tenant's dwelling or the flooding from broken pipes or
natural drainage inside the dwelling.
(B) The landlord has expressly or impliedly agreed in the lease to
furnish potable water to the tenant's dwelling and the water service to
the dwelling has totally ceased.
(C) The landlord has expressly or impliedly agreed in the lease to
furnish heating or cooling equipment; the equipment is producing
inadequate heat or cooled air; and the landlord has been notified in
writing by the appropriate local housing, building, or health official or
other official having jurisdiction that the lack of heat or cooling
materially affects the health or safety of an ordinary tenant.
(D) The landlord has been notified in writing by the appropriate local
housing, building, or health official or other official having
jurisdiction that the condition materially affects the health or safety
of an ordinary tenant.
(e) If the requirements of Subsection (d) of this section are met, a
tenant may:
(1) have the condition repaired or remedied immediately following the
tenant's notice of intent to repair if the condition involves sewage or
flooding as referred to in Paragraph (A) of Subdivision (3) of Subsection
(d) of this section;
(2) have the condition repaired or remedied if the condition involves a
cessation of potable water as referred to in Paragraph (A) of Subdivision
(3) of Subsection (d) of this section and if the landlord has failed to
repair or remedy the condition within three days following the tenant's
delivery of notice of intent to repair;
(3) have the condition repaired or remedied if the condition involves
inadequate heat or cooled air as referred to in Paragraph (C) of
Subdivision (3) of Subsection (d) of this section and if the landlord has
failed to repair the condition within three days after delivery of the
tenant's notice of intent to repair; or
(4) have the condition repaired or remedied if the condition is not
covered by Paragraph (A), (B), or (C) of Subdivision (3) of Subsection
(d) of this section and involves a condition affecting the physical
health or safety of the ordinary tenant as referred to in Paragraph (D)
of Subdivision (3) of Subsection (d) of this section and if the landlord
has failed to repair or remedy the condition within seven days after
delivery of the tenant's notice of intent to repair.
(f) Repairs made pursuant to the tenant's notice must be made by a
company, contractor, or repairman listed in the yellow or business pages
of the telephone directory or in the classified advertising section of a
newspaper of the local city, county, or adjacent county at the time of
the tenant's notice of intent to repair. Unless the landlord and tenant
agree otherwise under Subsection (g) of this section, repairs may not be
made by the tenant, the tenant's immediate family, the tenant's employer
or employees, or a company in which the tenant has an ownership
interest. Repairs may not be made to the foundation or load-bearing
structural elements of the building if it contains two or more dwelling
units.
(g) A landlord and a tenant may mutually agree for the tenant to repair
or remedy, at the landlord's expense, any condition of the dwelling
regardless of whether it materially affects the health or safety of an
ordinary tenant. However, the landlord's duty to repair or remedy
conditions covered by this subchapter may not be waived except as
provided by Subsection (e) or (f) of Section 92.006.
(h) Repairs made pursuant to the tenant's notice must be made in
compliance with applicable building codes, including a building permit
when required.
(i) The tenant shall not have authority to contract for labor or
materials in excess of what the tenant may deduct under this section. The
landlord is not liable to repairmen, contractors, or material suppliers
who furnish labor or materials to repair or remedy the condition. A
repairman or supplier shall not have a lien for materials or services
arising out of repairs contracted for by the tenant under this section.
(j) When deducting the cost of repairs from the rent payment, the
tenant shall furnish the landlord, along with payment of the balance of
the rent, a copy of the repair bill and the receipt for its payment. A
repair bill and receipt may be the same document.
(k) If the landlord repairs or remedies the condition or delivers an
affidavit for delay under Section 92.0562 to the tenant after the tenant
has contacted a repairman but before the repairman commences work, the
landlord shall be liable for the cost incurred by the tenant for the
repairman's trip charge, and the tenant may deduct the charge from the
tenant's rent as if it were a repair cost.
§ 92.0562 PROP. Landlord Affidavit for Delay
(a) The tenant must delay contracting for repairs under Section 92.0561
if, before the tenant contracts for the repairs, the landlord delivers to
the tenant an affidavit, signed and sworn to under oath by the landlord
or his authorized agent and complying with this section.
(b) The affidavit must summarize the reasons for the delay and the
diligent efforts made by the landlord up to the date of the affidavit to
get the repairs done. The affidavit must state facts showing that the
landlord has made and is making diligent efforts to repair the
condition, and it must contain dates, names, addresses, and telephone
numbers of contractors, suppliers, and repairmen contacted by the owner.
(c) Affidavits under this section may delay repair by the tenant for:
(1) 15 days if the landlord's failure to repair is caused by a delay in
obtaining necessary parts for which the landlord is not at fault; or
(2) 30 days if the landlord's failure to repair is caused by a general
shortage of labor or materials for repair following a natural disaster
such as a hurricane, tornado, flood, extended freeze, or widespread
windstorm.
(d) Affidavits for delay based on grounds other than those listed in
Subsection (c) of this section are unlawful, and if used, they are of no
effect. The landlord may file subsequent affidavits, provided that the
total delay of the repair or remedy extends no longer than six months
from the date the landlord delivers the first affidavit to the tenant.
(e) The affidavit must be delivered to the tenant by any of the
following methods:
(1) personal delivery to the tenant;
(2) certified mail, return receipt requested, to the tenant; or
(3) leaving the notice inside the dwelling in a conspicuous place if
notice in that manner is authorized in a written lease.
(f) Affidavits for delay by a landlord under this section must be
submitted in good faith. Following delivery of the affidavit, the
landlord must continue diligent efforts to repair or remedy the
condition. There shall be a rebuttable presumption that the landlord
acted in good faith and with continued diligence for the first affidavit
for delay the landlord delivers to the tenant. The landlord shall have
the burden of pleading and proving good faith and continued diligence for
subsequent affidavits for delay. A landlord who violates this section
shall be liable to the tenant for all judicial remedies under Section
92.0563 except that the civil penalty under Subdivision (3) of Subsection
(a) of Section 92.0563 shall be one month's rent plus $1,000.
(g) If the landlord is liable to the tenant under Section 92.056 and if
a new landlord, in good faith and without knowledge of the tenant's
notice of intent to repair, has acquired title to the tenant's dwelling
by foreclosure, deed in lieu of foreclosure, or general warranty deed in
a bona fide purchase, then the following shall apply:
(1) The tenant's right to terminate the lease under this subchapter
shall not be affected, and the tenant shall have no duty to give
additional notice to the new landlord.
(2) The tenant's right to repair and deduct for conditions involving
sewage backup or overflow, flooding inside the dwelling, or a cutoff of
potable water under Subsection (e) of Section 92.0561 shall not be
affected, and the tenant shall have no duty to give additional notice to
the new landlord.
(3) For conditions other than those specified in Subdivision (2) of
this subsection, if the new landlord acquires title as described in this
subsection and has notified the tenant of the name and address of the new
landlord or the new landlord's authorized agent and if the tenant has not
already contracted for the repair or remedy at the time the tenant is so
notified, the tenant must deliver to the new landlord a written notice of
intent to repair or remedy the condition, and the new landlord shall have
a reasonable time to complete the repair before the tenant may repair or
remedy the condition. No further notice from the tenant is necessary in
order for the tenant to repair or remedy the condition after a reasonable
time has elapsed.
(4) The tenant's judicial remedies under Section 92.0563 shall be
limited to recovery against the landlord to whom the tenant gave the
required notices until the tenant has given the new landlord the notices
required by this section and otherwise complied with Section 92.056 as to
the new landlord.
(5) If the new landlord violates this subsection, the new landlord is
liable to the tenant for a civil penalty of one month's rent plus
$2,000, actual damages, and attorney's fees.
(6) No provision of this section shall affect any right of a
foreclosing superior lienholder to terminate, according to law, any
interest in the premises held by the holders of subordinate liens,
encumbrances, leases, or other interests and shall not affect any right
of the tenant to terminate the lease according to law.
§ 92.0563 PROP. Tenant's Judicial Remedies
(a) A tenant's judicial remedies under Section 92.056 shall include:
(1) an order directing the landlord to take reasonable action to repair
or remedy the condition;
(2) an order reducing the 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 or remedied;
(3) a judgment against the landlord for a civil penalty of one month's
rent plus $500;
(4) a judgment against the landlord for the amount of the tenant's
actual damages; and
(5) court costs and attorney's fees, excluding any attorney's fees for
a cause of action for damages relating to a personal injury.
(b) A landlord who knowingly violates Section 92.006 by contracting
orally or in writing with a tenant to waive the landlord's duty to repair
under this subchapter shall be liable to the tenant for actual damages, a
civil penalty of one month's rent plus $2,000, and reasonable attorney's
fees. For purposes of this subsection, there shall be a rebuttable
presumption that the landlord acted without knowledge of the violation.
The tenant shall have the burden of pleading and proving a knowing
violation. If the lease is in writing and is not in violation of Section
92.006, the tenant's proof of a knowing violation must be clear and
convincing. A mutual agreement for tenant repair under Subsection (g) of
Section 92.0561 is not a violation of Section 92.006.
(c) The justice, county, and district courts have concurrent
jurisdiction of an action under Subsection (a) of this section except
that the justice court may not order repairs under Subdivision (1) of
Subsection (a) of this section.
§ 92.301 PROP. Landlord Liability to Tenant for Utility Cutoff
(a) A landlord who has expressly or impliedly agreed in the lease to
furnish and pay for water, gas, or electric service to the tenant's
dwelling is liable to the tenant if the utility company has cut off
utility service to the tenant's dwelling or has given written notice to
the tenant that such utility service is about to be cut off because of
the landlord's nonpayment of the utility bill.
(b) If a landlord is liable to the tenant under Subsection (a) of this
section, the tenant may:
(1) pay the utility company money to reconnect or avert the cutoff of
utilities according to this section;
(2) terminate the lease if the termination notice is in writing and
move-out is to be within 30 days from the date the tenant has notice from
the utility company of a future cutoff or notice of an actual cutoff,
whichever is sooner;
(3) deduct from the tenant's rent, without necessity of judicial
action, the amounts paid to the utility company to reconnect or avert a
cutoff;
(4) if the lease is terminated by the tenant, 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 pursuant to law;
(5) if the lease is terminated by the tenant, recover a pro rata refund
of any advance rentals paid from the date of termination or the date the
tenant moves out, whichever is later;
(6) recover actual damages, including but not limited to moving costs,
utility connection fees, storage fees, and lost wages from work; and
(7) recover court costs and attorney's fees, excluding any attorney's
fees for a cause of action for damages relating to a personal injury.
(c) When deducting for the tenant's payment of the landlord's utility
bill under this section, the tenant shall submit to the landlord a copy
of a receipt from the utility company which evidences the amount of
payment made by the tenant to reconnect or avert cutoff of utilities.
(d) The tenant remedies under this section are effective on the date
the tenant has notice from the utility company of a future cutoff or
notice of an actual cutoff, whichever is sooner. However, the tenant's
remedies under this section shall cease if:
(1) the landlord provides the tenant with written evidence from the
utility that all delinquent sums due the utility have been paid in full;
and
(2) at the time the tenant receives such evidence, the tenant has not
yet terminated the lease or filed suit under this section.