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  1. #1

    Default How to Serve Written Notice on a Landlord

    My question involves landlord-tenant law in the State of: Texas

    Hi,

    I'm in a bit of a potentially sticky situation. Basically, I'm on a year lease at an apartment complex. I've wanted to get out of my lease pretty much since day one, but I was familiar enough to know that there has to be a legal reason. Well, I found one when the ceiling of my building, i.e. the floor of the tenants above me, began creaking so loudly at night that I couldn't sleep. So I began to go through very meticulous steps to ensure that if the problem wasn't handled, I could get out. I recorded several instances of the noises, brought the recording along with a signed letter asking for the problem to be remedied to my leasing office. When nothing was done, I filed a work order request, upon which action was never taken, then two months went by. 3 days ago, I went into the lease office again, spoke to another individual and I was prepared to deliver another letter, when they showed me that they had my original letter on file and admitted that the maintenance crew likely did nothing.

    Here's my potential snag:

    I went in today to formally announce that I intended to leave in 60 days and that I would fight any attempt on their part to get me to remit payment for early termination fees, giving back promotional discounts, etc., on the grounds that they did not uphold Texas state lease law. However, I was told recently that although I'm allowed to deliver a letter in person, there might be an issue with the fact that I didn't have it delivered via certified mail. Can they nail me on that detail even though two of their leasing agents admitted that they not only received the letter 60 days prior, but that nothing had been done? It seems to me that the point of specifying certified mail would be to legally ensure receipt of the letter, but when I showed up, they had my letter on file and admitted to having received it some time earlier.

    Please advise

    Thanks!

  2. #2
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    Default Re: Written Notices

    I'm curious as to why you believe you have the right to terminate your lease.

  3. #3

    Default Re: Written Notices

    Quote Quoting jk
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    I'm curious as to why you believe you have the right to terminate your lease.
    Sorry, I should have clarified. First of all, I didn't just have buyer's remorse and begin preying on reasons for leaving. A confluence of really annoying, unsatisfactory events began to pile up and before I knew it, the ceiling issue made me really want to get out of there, but even then I endured it as a mere annoyance for 4 months (until it effected my health).

    My legal reason for wanting to terminate the lease is that that the tenants above me have a much different lifestyle than I do, meaning that the terribly loud creaking noise (and I'm not just saying it was some little creak, my apartment manager listened to recordings of the noise and admitted that it was unacceptable) keeps me up for as long as they are walking around. It has seriously effected my sleep and my ability to wake up in the morning. The State of Texas grants the right to a healthy, quiet environment or the right to have the landlord make "diligent efforts" to fix the problem within 7 days. I waited 61 days and met with people 3 times and issued a formal letter, which was received and never acted upon, even after I followed up and subsequently filed a work order request. Until today when I threatened to leave, no one cared at all about seeing to the problem actual being fixed. I think that countless instances of being woken up by the sound of creaking and people urinating in their toilets is in violation of my rights, and I've honestly had enough of their not caring about getting the problem fixed.

    Does that sate your curiosity?

    And just a minor detail: I take no issues with the behavior of my neighbors above. They are quiet, respectful, and make hardly any noise outside of the noises that come through the floor when they walk. The noise issues that arise result from the structural integrity of the building I live in and it's something that could easily have been fixed in 2 hours if the apartment complex cared or was organized enough to act.

  4. #4
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    Default Re: Written Notices

    No, actually it doesn't. I have tried to find a law supporting your contentions but have failed. Since you appear to be well versed on the law, care to share the statute?

  5. #5

    Default Re: Written Notices

    Quote Quoting jk
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    No, actually it doesn't. I have tried to find a law supporting your contentions but have failed. Since you appear to be well versed on the law, care to share the statute?
    This is taken from the Texas Attorney General's website, under a summary "Tenant Rights" page. I'm not well versed in the law, just moderately well versed in Googling things and reading over my lease agreement. If this doesn't describe my situation, please feel free to educate me.

    You have a right to demand that the landlord repair any condition that materially affects your health and safety. Under Texas law, by renting you the property, the landlord guarantees that the unit will be a fit place to live.

    SB 1448 (81st Regular Session), effective January 1, 2010, now grants justices of the peace authority to order landlords to repair or remedy conditions affecting a tenant's health and safety, as long as the cost of the repair does not exceed $10,000. Tenants can go to justice court without an attorney to obtain a repair order.

    Under certain conditions, you and the landlord may have a written agreement that you will make needed repairs. The landlord does not have a duty to pay for or make repairs if you or your guests cause an unsafe or unhealthy condition through negligence, carelessness, abuse or accident—unless the condition resulted from "normal wear and tear."
    And it continues...

    If the landlord won't make repairs needed to protect your health, safety, or security, and you follow the procedures required by law, you may be entitled to:

    End the lease;
    Have the problem repaired and deduct the cost of the repair from the rent; or
    File suit to force the landlord to make the repairs.

  6. #6
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    Default Re: Written Notices

    I'm no lawyer but it looks like you may need to get the actual statue as the Attorney General's website is not the law.

  7. #7
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    Default Re: Written Notices

    from what I could find, what you have complained about does not fall within the requirements of the law spoken of in that statement.

    § 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, 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.Acts 1983, 68th Leg., p. 3635, ch. 576, § 1, eff. Jan. 1, 1984. Amended by Acts 1989, 71st Leg., ch. 650, § 5, eff. Aug. 28, 1989; Acts 1997, 75th Leg., ch. 1205, § 11, eff. Jan. 1, 1998.
    the law referred to:

    § 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 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.Acts 1983, 68th Leg., p. 3632, ch. 576, § 1, eff. Jan. 1, 1984. Amended by Acts 1989, 71st Leg., ch. 650, § 3, eff. Aug. 28, 1989; Acts 1993, 73rd Leg., ch. 48, § 14, eff. Sept. 1, 1993.
    and the remedies should the LL not take action as required by the law:

    § 92.0563. 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.Added by Acts 1989, 71st Leg., ch. 650, § 8, eff. Aug. 28, 1989.
    so, unless the landlord wants to simply roll over and give up on this, all you have to do is prove the noise was a threat to your physical health or safety when he sues you. I do not believe what you are experiencing falls within the intent of the law.

  8. #8

    Default Re: Written Notices

    Quote Quoting jk
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    from what I could find, what you have complained about does not fall within the requirements of the law spoken of in that statement.



    the law referred to:



    and the remedies should the LL not take action as required by the law:



    so, unless the landlord wants to simply roll over and give up on this, all you have to do is prove the noise was a threat to your physical health or safety when he sues you. I do not believe what you are experiencing falls within the intent of the law.
    JK,

    Thank you for addressing my questions and thank you for going into such great detail. I believe I've found the answer I was looking for.

  9. #9
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    Default Re: Written Notices

    best of luck to ya. While I (personally) believe the situation does not warrant the actions you wish to take, that doesn't mean I do not sympathize with your situation. I hated apartment life as there were always sounds and smells from other units I was bothered by. The problem: people don't have to walk around in slippers all day or whisper or not cook their favorite food simply because it bothered me (although I would have liked it that way).

    You are in a situation that, if you can prove the law supports your belief, have a right to terminate the lease. The problem is that until you act, you do not know if the landlord will challenge your claim or not and only when facing a judge will anybody know how the law interprets the situation. If you do not have much time remaining on the lease, it might be wisest to simply ride it out knowing you will be moving away from the situation at that time.

  10. #10

    Default Re: Written Notices

    Quote Quoting jk
    View Post
    best of luck to ya. While I (personally) believe the situation does not warrant the actions you wish to take, that doesn't mean I do not sympathize with your situation. I hated apartment life as there were always sounds and smells from other units I was bothered by. The problem: people don't have to walk around in slippers all day or whisper or not cook their favorite food simply because it bothered me (although I would have liked it that way).

    You are in a situation that, if you can prove the law supports your belief, have a right to terminate the lease. The problem is that until you act, you do not know if the landlord will challenge your claim or not and only when facing a judge will anybody know how the law interprets the situation. If you do not have much time remaining on the lease, it might be wisest to simply ride it out knowing you will be moving away from the situation at that time.
    Yeah, I understand what you're saying, and that was the attitude I had for my first 4 months here - sometimes buildings are creaky, people have loud pets, etc. But the degree to which this building makes noise from people simply walking around their apartment is unacceptable. The complex knows they have an obligation to change the floorboards of the building above me because when I told them "I'm leaving and I will be fighting any charges you levy against me", they immediately perked up and got to work trying to fix my problem. In my mind, however, they were 60 days late in giving it the attention it deserved, but if there isn't a strong enough case for it then c'est la vie. It's a little disconcerting that the law essentially allows landlord to ignore the first written request, but again, it's not the end of the world.

    Thanks again for all the help.

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