IF AIN T BROKE, You Won t See One of These Cases. REPAIR AND REMEDY CASES IN JUSTICE COURT Nelson H. Mock Texas RioGrande Legal Aid Texas Justice Court Judges Association, 10-Hour Civil April 11-12, 2016
Ignorance of the law excuses no man from practicing it. --Addison Mizner 2
The Problem Mary Tenant has been living in a house with her three kids for a year and a half, and she has all kinds of problems with the house. Her problems: Roof leaks, Sewage backups Electrical outlets broken Dishwasher not working Walls need painting Carpets have stains Hot water heater is very inconsistent 3
Why It Is Now Your Problem: Mary Tenant has filed a repair and remedy lawsuit against her landlord, Joe Tenant, under Rule 509 of the Texas Rules of Civil Procedure. Questions you might have: What are the rights and responsibilities of Mary Tenant and Joe Landlord? What should have happened before Mary Tenant filed her case? What types of repairs can Mary Tenant sue about? What are Joe Landlord s defenses? What are your powers to grant remedies in the case? 4
The Law Repair remedies come from Texas Property Code (TPC) 92.0563 NOT Commercial, ONLY Residential Tenancies Justice, County, and District Courts have power to: 1. Order reasonable action to repair and remedy 2. Order reducing tenant s rent 3. Award civil penalty 4. Award actual damages, and 5. Award court costs and attorney s fees 5
The Law cont. Prior to January 1, 2010, Justice Courts could NOT order repairs. Now, Justice Courts have the power to order repairs: Section 92.0563 of the Texas Property Code was amended (effective January 1, 2010) specifically to give Justice Court power to order repairs. Also amended to add an expedited hearing process (like evictions) in Justice Court. 6
The Law cont. Texas Supreme Court promulgated rules under 737 for the repair and remedy process. The Supreme Court also drafted a form petition for use by tenant Plaintiffs. Then, the Supreme Court repealed the 737 rules, and placed them, slightly amended (effective August 31, 2013), in: Texas Rules of Civil Procedure 509.1-9. 7
Duty to Repair A landlord shall make diligent effort to repair or remedy a condition if: 1. Tenant gives notice (MORE ON THIS SHORTLY) to landlord specifying condition; 2. Tenant is not delinquent in rent when notice is given; AND 3. The condition materially affects the physical health or safety of an ordinary tenant, OR 4. Landlord fails to provide or maintain device to supply hot water. (TPC 92.052(a)). 8
Health and Safety Examples: sewage backups, roaches, rats, no hot water, faulty wiring, roof leaks, and sometimes lack of heat (is it cold?) or air conditioning (is it hot?) If the problem violates a provision of your city's building, health, or fire code, then it is more likely to be considered a health or safety risk 9
Health and Safety, cont. As for Mary Tenant? Health and safety: LIKELY: Roof leaks Sewage backups Electrical outlets broken (open wiring) Hot water heater is very inconsistent UNLIKELY: Walls need painting Carpets have stains Dishwasher not working (even if breach of K) 10
No Duty to Repair Landlord does not have a duty to repair conditions caused by: Tenant Lawful occupant of the dwelling Member of tenant s family, or Guest or invitee of tenant. UNLESS those conditions were caused by normal wear and tear (TPC 92.052(b)). 11
About that Notice: SCENARIO 1: Two Notices Required: FIRST NOTICE about repair: in writing ONLY If lease is in writing AND requires written notice (TPC 92.052(d)) SECOND NOTICE about repair: in writing. (TPC 92.056(a)). 12
About that Notice, cont. SCENARIO 2: One Notice Required: NOTICE sent certified mail, return receipt requested (or mail that allows tracking via USPS or private delivery service) (TPC 92.056(a)). 13
When is Notice Received? Notice is received when landlord or landlord s agent actually received the notice OR the U.S. Postal Service has attempted to deliver notice. (TPC 92.056(c)). 14
Landlord Liability Landlord liable if: 1. Notice given (either one or two) 2. The condition materially affects the physical health or safety of an ordinary tenant 3. The landlord has had a reasonable time to repair or remedy the condition, and 4. The landlord has NOT made a diligent effort to repair or remedy the condition after receiving notice, and 5. The tenant was not delinquent in payment of rent when the required notice(s) was given. (TPC 92.056(a)). 15
Reasonable Time? Reasonable time is presumed to be seven days, unless the tenant can show the nature and severity of the condition required less. (TPC 92.056(d)). 16
Personal Injury vs. Repair and Remedy BHA also relies on section 92.052 of the Property Code, and argues that its duty to repair is statutorily limited to making a diligent effort to repair a condition only after receiving written notice. See Tex. Prop.Code Ann. 92.052 (Vernon Supp.2008). The testimony of the adult plaintiffs indicates they did not provide written notice of peeling lead paint in their apartments before the injuries. However, section 92.052 does not apply to personal injury claims. Hous. Auth. of City of Beaumont v. Landrio, 269 S.W.3d 735, 748 (Tex. App. Beaumont 2008), as corrected (Dec. 1, 2008) 17
Burden of Proof Tenant generally has burden of proof in a judicial action to enforce a right resulting from landlord s failure to make a repair. BUT If a landlord does not provide a written explanation for delay in performing a duty to repair or remedy on or before the fifth day after receiving a written demand for an explanation, the landlord has the burden of proving that he made diligent effort to repair and that a reasonable time to repair did not elapse. (TPC 92.053). 18
Tenant Remedies If Joe Landlord is liable to Mary Tenant, then she can obtain judicial remedies: 1. Order to repair and remedy 2. Reduction of rent from first repair notice 3. Award of civil penalty of one month s rent plus $500 4. Award of actual damages, and 5. Award court costs and attorney s fees (TPC 92.0563). 19
Tenant Remedies, cont. If Joe Landlord is liable, Mary Tenant can also (without judicial intervention): Terminate the lease, with Pro rata refund of rent from date tenant moves out Deduct security deposit from rent without necessity of lawsuit, BUT Not entitled to repair order or rent reduction (TPC 92.056(e)). 20
Back to Mary Tenant s Lawsuit The Supreme Court promulgated (in 2009) a form petition for Repair and Remedy cases. Many Justice Courts use a variation of the form. It follows the law and Rule 509.2 (Contents of Petition.) 21
SC Repair and Remedy petition First part of petition states the repair standard: 22
SC Repair and Remedy petition Second part addresses service and notice, but also identifies where the notice of repairs should have been sent (to person where rent is paid (TPC 92.052(a).) Also, a managing agent, leasing agent, or resident manager is an agent for purposes of notice or communication required by the statute. (TPC 92.060). 23
SC Repair and Remedy petition Third part addresses lease and notice: If lease is oral, or if lease doesn t require the notice to be in writing, first repair notice doesn t have to be in writing. (TPC 92.052(d)). If notice sent certified mail, return receipt (or other service allowing tracking), only one notice is required. (TPC 92.056(b)(3)). 24
SC Repair and Remedy petition Fourth part addresses rent: If rent is owed when required notice is given, tenant may not have remedy. (TPC 92.056 (b)) (But not if landlord refuses to accept rent.) 25
SC Repair and Remedy petition Fourth part addresses property conditions: Not a whole lot of room here. 26
SC Repair and Remedy petition Last part is a statement of the relief requested: These are the judicial remedies listed in TPC 92.0563. 27
Insufficient petition? What if a Plaintiff Tenant does not include all of the required information? Or if a petition is defective? A suit may not be dismissed for a defect in a petition unless the tenant is given an opportunity to correct the defect and does not promptly correct it. (Rule 509.2(c)). 28
No Counterclaims No counterclaims and joinder of suits against third parties are permitted. (Rule 509.7). So, Joe Landlord cannot include in the Rule 509 lawsuit claims against Mary Tenant for Breach of lease Nonpayment of rent Damage to property, etc. 29
Appearance No written answer from Landlord required. (Rule 509.3). If Landlord fails to appear, the Court should hear the case, and if Tenant proves her case, the Court should render judgment. (Rule 509.5). If Tenant fails to appear, the Court may dismiss the case. (Rule 509.5). 30
Discovery Discovery: that which the judge considers reasonable and necessary. Requests for discovery must be presented to the court for approval by written motion. The motion must be served on the responding party. Unless a hearing is requested, the judge may rule on the motion without a hearing. Failure to comply with a discovery order can result in sanctions, including dismissal of the case or an order to pay the other party s discovery expenses. (RULE 500.9). 31
Trial Trial date is no less than 10 days, and not more than 21 days after the petition is filed. (Rule 509.3). A party may file a motion requesting a postponement of trial, and the Court, for good cause, may postpone a trial for a reasonable time. (Rule 503.3). No express provision for jury trial; Section 92.006 of the Texas Property Code states: A tenant s right to a jury trial in action brought under this chapter [92] may not be waived in a lease or other written agreement. 32
Judgment If Mary Tenant proves her case, the Court may: 1. Order repairs 2. Reduce rent from first repair notice 3. Award of civil penalty of one month s rent plus $500 4. Award of actual damages, and 5. Award court costs and attorney s fees (TPC 92.0563). 33
Judgment order to pay If judgment includes order for repair, judgment MUST include in reasonable detail: The actions the Landlord must take to repair or remedy the condition, and The date when the repair and remedy must be completed. 34
Judgment reduction of rent If judgment includes reduction of rent, judgment MUST state: The amount of rent the tenant must pay, if any; The frequency with which the tenant must pay; The condition justifying the reduction of rent; That the order reducing rent will terminate on the date the condition is repaired or remedied; and That on the day the condition is repaired or remedied, the landlord must give the tenant written notice, in accordance with Rule 501.4, that the condition has been repaired and the rent will revert to the rent amount in the lease. (Rule 509.6(b)(4)). 35
Enforcement If a landlord fails to comply with an order to repair or remedy or reduce the tenant s rent, the Court may cite the landlord for contempt of court. (Rule 509.7). Section 21.002 of the Texas Government Code: The punishment for contempt of a justice court is a fine of not more than $100 or confinement in the county or city jail for not more than three days, or both such a fine and confinement in jail. 36
Appeal Either party may appeal by filing a written notice of appeal within 21 days after the judge signs the judgment. Appeal is simply a notice of appeal (no appeal bond required). Notice of Appeal stays any Order to Repair or for Rent Reduction Trial de novo in County Court Trial may be held after the 8 th day after the transcript is filed in the County Court. (Rule 509.8). 37
Repair and Remedy snapshot PROCESS Applicable rules 500-507, 509 Time computation 500.5 Citation 501.1, 509.3 Service and alternate service 509.4 Petition Venue Answer Deadline after service Counterclaims and third party claims Default judgment RULES/LAW 509.2, Texas Supreme Court promulgated a form petition. 502.4, Texas Civil Practice & Remedies Code, Ch. 15 509.3. No written answer required. 509.3(b). No less than 10 days nor more than 21 days after suit is filed. 509.7. Not permitted. 509.5(b) 38
Repair & Remedy snapshot.2 PROCESS Notice of trial Postponement Pretrial conference ADR RULES/LAW 509.3. Trial date is included in citation. Service must be at least 6 days before trial. 503.3(b). For good cause, trial may be postponed a reasonable time. No provision. 503.5. Encouraged. Trial 509.5. Jury No provision. Expressly authorized on appeal. 509.8(e). Judgment 509.6 Enforcement Motion to set aside, motion to reinstate, MNT Appeal Writ of certiorari Plenary power 509.6(d) Contempt of court No provision. 509.8. Appeal to statutory county court, county court, or district court with jurisdiction; must be filed 21 days after judgment; no bond required; filing appeal stays enforcement; appellant must pay costs (or pauper s affidavit); writ of possession moots a judgment for repair or remedy. 506.4. Must be filed within 90 days of judgment. 507.1 21 days after judgment or after postjudgment motion denied. 39
I've been all over the whole world I've learned a thing or two So if it ain't broke don't fix it That's why I'm stickin' with you --Squirrel Nut Zippers 40
LAW OFFICE OF TEXAS RIOGRANDE LEGAL AID, INC. Austin Office 4920 N. I-35 Austin, TX 78751 Nelson H. Mock nmock@trla.org Dir: (512) 374-2723 Fax: (512) 447-3940 41