Renter's Rights on Mold And Mildew in Texas

The problems and health risks associated with mold and mildew growth are well known, so one would think that Texas would require landlords to deal with mold in their units. However, federal law does not mandate this, and Texas law does not directly address mold or mildew. Rather, state law provides that landlords in Texas have a duty to remove conditions that “materially affect the physical health or safety of an ordinary tenant.” In order to force a landlord to deal with mold, a Texas tenant has to convince the courts that the mold in their unit materially affects their health.

Mold is a type of fungus that can be found everywhere, including inside rental units in Texas, according to the Texas Department of Licensing and Regulation. When the microscopic mold seeds, termed spores, get wet and stay moist, they begin to grow on building materials. In time, the mold growth causes damage to real and personal property and causes health issues for people inside the dwelling. In fact, mold can lead to illness, creating new issues in healthy people and aggravating tenants' existing medical conditions, such as asthma.

While mold is ubiquitous, and mold spores cannot be eliminated totally from houses and apartments, they are not a danger, absent moisture. Continued exposure to water and humidity is required for them to grow. The source of moisture in a dwelling are usually plumbing or roofing problems like leaky pipes and roofs, floodwaters, sewage back-ups and over-flowing bathroom fixtures.

The law requiring landlords to fix defects in rental property is found at Texas Property Code Section 92.056. This code says that landlords in Texas have a duty to remove conditions that “materially affect the physical health or safety of an ordinary tenant.” That is true if, and only if, all three of these conditions are met:

• The tenant or their guests did not cause the condition.
  
• The tenant gave the landlord written notice of the condition.
• The tenant is not delinquent in rent at the time they give this notice.
  

Since the health problems and property damage associated with mold and mildew that often accompanies mold growth are well-known, the presence of mold should be quickly reported to the landlord. This is also true of a water leak or moisture issue that could lead to mold growth. In such circumstances, a responsible landlord should repair the issues.

The state of Texas Department of Health and Code Enforcement is responsible for administering the health and safety of rental units, including a renter's issues with mold and mildew. But neither this department, nor any other Texas agency, is charged with enforcing landlord/tenant rights and responsibilities.

There is no rent board on which Texas tenants can rely to help them if the landlord refuses to deal with mold or mildew issues. Rather, Texas landlords and tenants must work out their issues themselves or get the court to do it for them. A tenant must take appropriate steps to let the landlord know about the issue, then give the landlord a reasonable amount of time to make the repairs. After that, tenants can go to court.

The first step for a Texas renter faced with mold or mildew in their unit is to give proper notice to the landlord. The tenant should send the notice by certified mail, return receipt mail or another method of mailing that allows tracking. Alternatively, they can send two notices by regular mail, one a second a reasonable time after the first. At the same time, the tenant can and, in most cases should, talk directly to the landlord about the issue. Although talking is a good way to get things resolved, to preserve their rights, renters should also mail the notice.

The landlord has a duty to remove safety problems reported by tenants. The landlord has a reasonable period of time to remove the mold after receiving the notice. What is considered a reasonable amount of time to repair mold? The rule of thumb is a week, but a court can determine a different period of time based on the severity and nature of the condition, and the availability of materials and labor. If mold damage is a covered condition under a landlord's insurance policy, the reasonable time period to repair begins not from the notice, but from receipt of insurance proceeds to complete the repairs.

Once a tenant gives the landlord notice of mold in the unit and has waited a reasonable period of time for the landlord to act, they can consider other options. Some recommend contacting the media about the problem to force the landlord to act. However, there are three primary legal options the renter can take:

• Terminate the rental agreement or lease and move out.
  
• File a lawsuit against the landlord, asking the court to require them to remove the mold.
  
• Hire a contractor to repair the mold and deduct the cost of repair from the rent.
  

The repair and deduct option must follow to the letter the procedure set out in Texas codes. It is only permitted if the issue is found to be one that the landlord had an obligation to repair. The tenant is limited to a repair deduction per month of one month's rent or $500, whichever is more, if the unit is not subsidized. If the unit is subsidized, it is the fair market value of the unit for one month or $500.

To use the repair and deduct remedy, the tenant must get an inspection from the appropriate local housing, building, or health official, and the official must give the landlord written notice that the mold condition materially affects the health or safety of an ordinary tenant. Finally, if the tenant has waived using the repair and deduct option in the lease agreement, they cannot use it against the landlord.

In remedy and repair situations, the lawsuit can generally be filed in small claims court because of the small dollar amounts that generally are at stake. This requires the tenant to sue in justice court (justice of the peace) if a landlord fails to address a reported mold and mildew problem. There are very precise steps to take, however, and renters should seek legal advice before proceeding with a civil action in court.

If the mold situation has harmed a renter's health, a personal injury lawsuit can be considered. This might be the case with toxic mold, for example. The renter should talk to a Texas personal injury lawyer about the situation.