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Richard
Richard, Attorney
Category: Legal
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Experience:  Attorney with 29 years of experience.
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I found mold in my home yesterday that was black and and my

Customer Question

I found mold in my home yesterday that was black white and green and my house also failed the Home Depot self kit that you can buy. I took the kit and myself to the health department and spoke with the lady for a couple of hours and we got nowhere so I decided that I would take the mold kit from Home Depot to my doctor because this explains why I've been sick since January. The doctor immediately said I was to evacuate the house he even put it on paper to leave the house and then the next step is I have to go see a pulmonary specialist so that I can get my lungs tested for the spores but is in the Home Depot kit. I'll call my landlord who just bought the property and she came over and told me that doctor's note was not good enough for her to move me to the empty apartment upstairs that we can stay in that moldy apartment until Tuesday when she can get someone out there to fix it or she'll let me out of my lease and I don't find that to be the correct answer considering I have done everything I could possibly do my bills are paid I don't call this you and she should help me and care about the health of her tenant but she doesn't and came to my house to tell me but that doctor's note that nothing to her
Submitted: 1 year ago.
Category: Legal
Expert:  Richard replied 1 year ago.

Hi! 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:  Richard replied 1 year ago.

Your landlord doesn't get to make up the rules to suit herself. She's hardly an unbiased party. With every rental comes a warranty of habitability, which includes the tenant's right to the safe, healthy, peaceful and quiet enjoyment of the rented premises. Where you have a situation with mold which directly puts your health in peril, a tenant would clearly not be afforded such enjoyment of the premises....and therefore the landlord would be in breach of the implied warranty of habitability. This puts the landlord in default. This gives you the right to terminate the lease and sue for damages, including the cost of moving plus include reimbursement of a portion of all prior rent to date to compensate for the reduced value of the rental property due to the reduced benefit of your rental bargain due to the inhabitability. Furthermore, although you have the right to terminate the lease due to the breach, you are not required to do so. Rather, you can file a claim against the landlord for damages due to this breach. Damages would include reimbursement of a portion of all prior rent to date to compensate for the reduced value of the rental property due to the problems, and to either reduce the rent going forward or pay you for temporary living expenses, at your option, until the problem is fully remediated.

In Texas, the landlord's responsibilities and your rights regarding habitability are specifically codified in the Texas Property Code. I have provided you the applicable statutes below.

Sec. 92.056. LANDLORD LIABILITY AND TENANT REMEDIES; NOTICE AND TIME FOR REPAIR.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

Sec. 92.0561. TENANT'S REPAIR AND DEDUCT REMEDIES.

  1. 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.
  2. 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.
  3. 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.
  4. 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:
      1. 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.
      2. 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.
      3. 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.
      4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. Repairs made pursuant to the tenant's notice must be made in compliance with applicable building codes, including a building permit when required.
  9. 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.
  10. 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.
  11. 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.

Added by Acts 1989, 71st Leg., ch. 650, Sec. 6, eff. Aug. 28, 1989. Amended by Acts 1997, 75th Leg., ch. 1205, Sec. 12, eff. Jan. 1, 1998.

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Sec. 92.0562. LANDLORD AFFIDAVIT FOR DELAY.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

Added by Acts 1989, 71st Leg., ch. 650, Sec. 7, eff. Aug. 28, 1989.

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Sec. 92.0563. TENANT'S JUDICIAL REMEDIES.

  1. 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.
  2. 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.
  3. 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.

Thank you so much for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent (hopefully Good or Excellent). Otherwise, I receive no credit for assisting you today. I thank you in advance for taking the time to provide me a positive rating!

Expert:  Richard replied 1 year ago.

I just wanted to let you know that I will be away at a meeting for the next hour or so. Should you have a follow up while I’m away, I will address it immediately upon my return. Thank you in advance for your patience. I apologize for any inconvenience.

Expert:  Richard replied 1 year ago.

You can approach this a number of ways. First, it's not a black an white issue as to whether or not this would be considered a legally binding contract since your husband owns an interest, your husband's name is ***** ***** the contract, and you did not specify that you were signing as his POA. So, you do have an argument that the contract isn't even binding to begin with. But, even if it were to be binding, you can still get out of this contract. You can approach this one of two ways. One, you can simply terminate the contract by notifying the buyer of the termination and returning the deposit. Going this route, you would have some risk..that risk being: i) the buyer suing for damages...such as any costs incurred in connection with the purchase of the property and if the contract provides for specific performance, the buyer suing to force you to sell; and ii) if the listing agreement provides for a commission to be earned when a willing and able buyer is found rather than only upon closing, the payment of the commission. But, buyers rarely pursue the specific performance option even if granted in the contract. Two, almost all real estate transactions have issues...inspections, title issues, appraisal, financing, etc. You can simply say no to everything the buyer requests and pretty much make the process so unbearable the buyer terminates. In that case, you would have no liability. In my experience. buyers rarely pursue suits...they are interested in buying a house and don't want to get caught up in time-consuming and expensive litigation. And, it's important to not let the real estate agents try to intimidate you...they are only concerned with getting their commissions and will almost always threaten you with dire consequences in order to scare you into closing.

Thank you so much for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent (hopefully Good or Excellent). Otherwise, I receive no credit for assisting you today. I thank you in advance for taking the time to provide me a positive rating!