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insearchoftheanswer
insearchoftheanswer, Lawyer
Category: Landlord-Tenant
Satisfied Customers: 53965
Experience:  Lawyer; developer/owner of RE developments.
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I am a tenant in a nice apartment complex in North Dallas.

Customer Question

I am a tenant in a nice apartment complex in North Dallas. Attached garage, Large Patio and 900 square feet of living area. I have 2 service dogs also. I've lived in my apartment for almost 4 years on the lower level. New tenants above me have live there no more than 6 months. I'm a very patient man. I live with constant walking back in forth for hours and an occasional loud thud that rattles my light fixtures. I've been to their door 2 times in the last two months to ask them to be respectful of me and my Puppies. Last night I had to finally call the cops to go to their door when they woke me up at 9:30 and 10:30 with a large thump. I've been forced to live in my bedroom so I don't have to live with the noise in the rest of my apartment. Now they are waking me up. I look up law in Texas and it says I have a right of peaceful enjoyment. I emailed the Apt. Mgr. this morning and told her she had to move me or them to another apartment as I've lost my patience. I'm somewhat intimidating being 6'5" and 240 lbs. I don't what to use that as I'm a very quite and private person. Please give me a solution. Please. Lost my patience in Dallas, Texas.
Submitted: 9 months ago.
Category: Landlord-Tenant
Expert:  insearchoftheanswer replied 9 months ago.

Thank you so much for the excellent rating! I know rating takes an additional step and I truly appreciate you taking the extra time! It's been my honor and privilege to help you with this. If I can help you in any way in the future, I'll be happy to help. For easy access, my bookmark is: www.justanswer.com/law/expert-legalbeacon/ . Or, simply request “Richard only” in the first line of your question.

Expert:  insearchoftheanswer replied 9 months ago.

Hi! I'm sorry for the post...there was confusion in the ethernet. I was responding to another customer and it got posted on your question.

My name is ***** ***** I will be helping you today! It will take me just a few minutes to type a response to your question. Thanks for your patience!

Expert:  insearchoftheanswer replied 9 months ago.

John, you have two routes for redress here...which you can pursue simultaneously.

First, against your landlord....with every rental comes the implied warranty of habitability. The Texas Property Code provides you recourse against your landlord under the following statute:

Sec. 92.056. 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, by registered mail, or by another form of mail that allows tracking of delivery from the United States Postal Service or a private delivery service;

(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.

With regard to the upstairs tenants, you also have direct recourse against them. Although they may feel as if they have the right to do whatever they please on their property, those rights are limited by the impact they may have on others. You have the right to file a private nuisance cause of action because their actions deprive you of the peaceful and quiet enjoyment of your property which results in the deprivation of the habitability of your property. A private nuisance cause of action will entitle you to both damages for the past deprivation of the full enjoyment of your property and an injunction prohibiting further interference with such enjoyment. If they then violate the injunction, they will be in contempt of court and subject to civil and/or criminal sanctions. In my experience, the mere filing of the suit itself leads to a resolution of the matter without actually having to get to the hearing. It's amazing the chilling impact being served with a summons that one is being sued does to cause them to cease and desist in their offending behavior.

Customer: replied 9 months ago.
not satisfied with the answer.
Expert:  insearchoftheanswer replied 9 months ago.

Thanks for following up. Can you let me know how I might supplement my response or what issues I have failed to address to your satisfaction so that I can do my best to provide you the information you need? It's my goal to make sure you are fully satisfied. Thank you!

Customer: replied 9 months ago.
Not sure where to file.
Expert:  insearchoftheanswer replied 9 months ago.

Thank for following up. You would file against the tenant in a Dallas Count Civil Court. For the one nearest you and the instructions, the following link will guide you: http://www.dallascounty.org/department/countyclerk/faq-civil.php . Small claims court would not be available in this suit because you are seeking an injunction plus damages and small claims courts only handle monetary issues. With regard to the landlord suit, if your damages are in excess of $10,000, you would follow the procedure above; if $10,000 or less, you can file in small claims court., which are called Justice of the Peace courts in Texas. The link for instructions and forms for this suit can be found at this link: http://www.dallascounty.org/department/jpcourts/3-1/smallclaims.php

Customer: replied 9 months ago.
why would I want to file on the apartment in small claims court?
What should I expect??
Expert:  insearchoftheanswer replied 9 months ago.

Thanks for following up. I apologize for the delay....meetings all afternoon.

If your claim is $10,000 or less monetarily, filing in small claims court can be done much more inexpensively and quickly; there is no need for a lawyer in this type filing. Many people opt for this forum for simplicity and cost savings.

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