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Richard
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 55325
Experience:  32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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I need help. My family and I have had a leak in our apartment

Customer Question

I need help. My family and I have had a leak in our apartment for over a month now since 4/19/15. we have sent numerous maintenance request as well as written notice and the leak has not been fixed. the leak has started to cause black mold on the walls and carpet. to make matters worst 4 days ago an AC leak started on three walls in the house. we have an 8 month all and fear for her health due to the mold. They have made few attempts to fix the issue. we are tired and fed up and just want to break the lease and move out.. do we have the legal grounds to terminate without being penalized?
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Richard replied 2 years ago.
Hi! My name is ***** ***** I look forward to helping you!
Yes, you do have the right to terminate. The landlord has a duty to repair under the following statute:
"TEX PR. CODE ANN. § 92.052 : Texas Statutes - Section 92.052: 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:
(A) materially affects the physical health or safety of an ordinary tenant; or
(B) 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."
And, then the following statute gives you the right to terminate and receive damages:
"TEX PR. CODE ANN. § 92.056 : Texas Statutes - Section 92.056: LANDLORD LIABILITY AND TENANT REMEDIES; NOTICE AND TIME FOR REPAIR
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(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.
(g) A lease must contain language in underlined or bold print that informs the tenant of the remedies available under this section and Section 92.056f."
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