Q. 4-1 What are my rights if I want to terminate my lease on my dwelling, following the disaster?

Section 92.054 of the Texas Property Code provides that if the rental premises are as a practical matter totally unusable for residential purposes and if the loss is not caused by the negligence or fault of the tenant, a member of the tenant’s family, or a guest or invitee of the tenant, either the landlord or the tenant may terminate the lease by giving written notice to the other at any time before repairs are completed. If the lease is terminated under this section of the Property Code, the tenant is entitled to a pro rata refund of rent from the date the tenant moves out and to a refund of any security deposit otherwise required by law. Tex. Prop. Code § 92.054(b).

Q. 4-2 If the premises are totally unusable because of the disaster, do I have to permanently move out even though I want to stay?

Most likely yes. If the premises are unfit for human habitation, there is a likelihood that a government agency, e.g., the local building department, will declare the premises off limits for residential use. Also, the landlord and tenant can terminate a lease if the rental premises are totally unusable as a result of a casualty loss (see Q. 4-1 above). Additionally, Tex. Prop. Code § 92.055 allows the landlord to “close the rental premises” by giving written notice by certified mail, return receipt requested, to the tenant, the local health officer, and the local building inspector stating that the landlord is terminating the tenancy as soon as legally possible. (This provision of the Property Code is less frequently used in natural disasters, because it is a more cumbersome process and the landlord cannot re-rent the unit within six months. Also, it requires that the lease contains a provision allowing the landlord to do this, thus making it “legally possible.”) On proper notice, the lease would be terminated. It is unclear exactly how much time a tenant has to move out once proper notice is given. However, it is most likely to be as soon as is reasonably practical. Of course, if it is only the landlord terminating the lease (and not a government official condemning the unit), and the tenant has not moved out, the landlord may not use self-help to remove the tenant. The landlord must still go through the judicial eviction process to remove the tenant from the unit. (See Q. 4-12 below.)

The relief available to a tenant in these situations will depend on how the landlord has terminated the tenant’s lease and whether the tenant has given the landlord a written request for repairs. If the landlord uses section 92.054 (see Q. 4-1 above) to terminate the tenant’s lease, then the tenant is entitled to a pro rata refund of rent from the date the tenant moves out and a refund of the security deposit. If the landlord closes the premises per section 92.055, and the tenant has given a repair notice and moves out before the end of the lease term, the tenant is entitled to actual and reasonable moving expenses, a refund of a pro rata portion of rent, and return of the security deposit as well as a judgment of actual damages, civil penalties, court costs, and attorney’s fees. Tex. Prop. Code § 92.055(c), (d). If the landlord closes the premises per section 92.055, and the tenant has not given a repair notice, the tenant cannot get the remedies in section 92.0055(c) or (d).

In short, if the tenant has not given a notice of termination pursuant to section 92.054 (see Q. 4-1 above), has not received a termination notice from the landlord, and is not certain of the status of the unit, it is important to immediately send the landlord a proper notice of repair (as described in answer to Q. 4-4 below). That will not only set up possible repair remedies pursuant to section 92.0563 of the Property Code (described in answer to Q. 4-4 below), but may also give the tenant additional remedies if the landlord chooses to close the premises under section 92.055 of the Property Code.

Q. 4-3 If the dwelling is partially unusable because of the disaster and if I don’t want to permanently move out, can my rent be partially abated (temporarily reduced)?

Maybe. The tenant can get the reduction only by a judgment in a county or district court or by agreement with the landlord. Tex. Prop. Code § 92.054(c) provides if the rental premises are partially unusable for residential purposes and if the loss is not caused by the negligence or fault of the tenant, a member of the tenant’s family, or a guest or invitee of the tenant, the tenant is entitled to reduction in the rent in an amount proportionate to the extent the premises are unusable because of the casualty, but only on judgment of a county or district court. A landlord and tenant may agree otherwise in a written lease, and many leases waive a tenant’s right to get this rent reduction. Of course, since the tenant has the right to a rent reduction in these circumstances (assuming the lease has not waived that right), the tenant should attempt to negotiate a written agreement with the landlord, since Tex. Prop. Code § 92.005 allows the tenant to recover attorney’s fees if the tenant prevails in a lawsuit for such a reduction.

Q. 4-4 My current unit is uninhabitable due to a disaster, but my landlord has another available. Is landlord required to make the other unit available? Can landlord make me sign another lease contract extending the length of my lease in order to move to the new unit?

No. Neither the landlord nor the tenant has any obligation with respect to other available housing unless expressly set forth in the lease. However, according to Tex. Prop. Code § 92.062, if—due to a disaster—you move to another unit owned by your landlord, your landlord cannot make you sign a new lease extending your lease term past the original end date.

Q. 4-5 Do I have to keep paying rent to my landlord while I am not living at my house/apartment?

Yes, unless and until the lease is terminated (by the tenant or landlord) or the tenant has an agreement with the landlord to do otherwise (in writing, to protect the parties). Unless the rental premises are as a practical matter totally unusable for residential purposes (see Q. 4-1 above), a tenant will generally not be excused from paying rent while not occupying the premises. However, the tenant may be entitled to a rent reduction. (See Q. 4-3 above.) This is true even in a case where authorities have “asked” residents not to return to an area because of the effects of a recent disaster. (This may change, however, in the event the authorities permanently forbid residents from returning to the area.)

Q. 4-6 What can happen and what should I do if I cannot pay the rent on my dwelling because of job or salary interruptions following the disaster?

Temporary government rent assistance may be available from the Federal Emergency Management Agency (FEMA) or other governmental agencies. Disaster Unemployment Assistance (DUA) may be available to you if you do not qualify for standard Unemployment Insurance (UI), are unemployed as a direct result of the disaster, are able and available to work, file an application for DUA within thirty days of the date of announcement of the availability of DUA, and have not refused employment in a suitable position.

If you live in public or federally subsidized housing or receive Section 8 assistance, you are entitled, in most circumstances, to have your rent reduced when you suffer a loss in income. You must notify your landlord or the housing authority.

If your lease is terminated by your landlord because the premises are totally unusable, you will need to move out to avoid an eviction case in justice court—regardless of whether you can or cannot pay the rent. Of course, if you do not leave, the landlord cannot use self-help to remove you—the landlord will have to file an eviction case against you in court and seek an order to remove you. If the premises are only partially unusable and if you don’t pay the rent, you may need to move out—unless you and your landlord agree otherwise. If the landlord is entitled to evict you and you do not move after the landlord has given you notice to vacate, you can be evicted only through a justice of the peace court eviction lawsuit.

Q. 4-7 How could I pay rent if I wanted to?

It is recommended that you contact your landlord to determine what methods of payment may be viable. Should you be unable to successfully contact your landlord, sending a personal check via certified mail to the address set forth in the lease agreement or the last provided address, if different, is advisable. Depending on the landlord, it may also have a website and have payment or other information related to the disaster on such site.

Q. 4-8 Can my landlord rent my home/apartment to someone else while I am gone?

No. The landlord must honor the lease unless the dwelling is totally unusable or the lease contains an express provision allowing the landlord to terminate in event of a fire, flood, or similar casualty. If the landlord wants you out in order to move someone else in, then the premises are obviously not “totally unusable” and the landlord cannot terminate the lease. If the landlord unlawfully locks you out, you should contact the justice of the peace about a writ of reentry. This is an expedited process through which you can get back into your home the same day.

Q. 4-9 How do I contact my landlord?

It is advisable to try every means of communication available, including, but not limited to: telephone calls to every available phone number, e-mail correspondence, and letters sent via mail to the address set forth in the lease agreement or last provided address, if different. Depending on the landlord, it may also have a website and have contact or other information related to the disaster on such site. The tenant should document all efforts and attempts to contact her landlord.

Q. 4-10 My landlord told me to move out because the dwelling is totally unusable after the disaster. Do I have to move out?

If, following the storm, the dwelling is as a practical matter totally unusable for residential purposes, the landlord may terminate the lease by giving written notice to the tenant at any time before repairs to the dwelling are completed. If the dwelling is unusable and the lease is so terminated, the tenant must vacate the dwelling, or the landlord may file an eviction case in justice court. (See also Q. 4-1, 4-2 above.) If the landlord terminates the lease for an unusable dwelling, the tenant is entitled to a pro rata refund of rent from the date the tenant moves out and a refund of any security deposit otherwise required by law. Tex. Prop. Code § 92.054(b). However, if the tenant disagrees that the dwelling is totally unusable for residential purposes and does not leave, the landlord cannot remove the tenant from the unit and must instead file an eviction case in justice court. Once in court, the tenant can raise as a defense that the dwelling is not totally unusable and should not have been subject to a lease termination. Of course, the tenant should continue to pay rent on the unit in the meantime, since nonpayment could be grounds for the landlord to evict the tenant.

Q. 4-11 My landlord told me to move out the next day because he wants the dwelling for his daughter who lost her house in the flood. He told me if I didn’t move out, he’d change the locks. Do I have to move out?

No. The landlord must continue to honor the terms of the lease. The landlord may not change the locks to prevent the tenant from entering the dwelling for such a reason. Tex. Prop. Code § 92.0081. Also, while there are other reasons why a landlord might be able to change your locks, your landlord must ALWAYS give you a key upon request. If your landlord illegally locks you out and refuses to give you a key, you can sue in justice court for an immediate order (“writ of reentry”) allowing you back in your residence. Tex. Prop. Code § 92.009.

Q. 4-12 What should I do if I am served with an eviction lawsuit?

A landlord cannot use self-help to remove a tenant from your apartment, nor can the landlord use the police or law enforcement to assist in the tenant’s removal without a final eviction order (writ of possession) issued by a judge. Even if the landlord has properly terminated a lease because of a natural disaster, the landlord cannot remove a tenant without going to court.

To evict a tenant, the landlord must file an eviction lawsuit in justice court in the precinct where the property is located. Then the eviction lawsuit is served on the tenant, which means that a citation and petition for eviction citation will be delivered to the tenant. If the tenant cannot be found for service, then the judge may authorize another means of service of the lawsuit, including slipping it under the door, taping it to the front door, and mailing it. If the tenant is served with an eviction lawsuit, the tenant should carefully read the citation and look for deadlines, including the trial date in court. If the tenant ignores the eviction lawsuit, she will not know of the trial date, and she will likely lose the case by default. If you want to find out if an eviction case has been filed against you, you should call the justice court in the precinct where the property is located. If you do not call the correct court, the clerk will often be able to direct you to the court where the property is located.

At the trial, the tenant will have the opportunity to tell the judge her side of the story. The tenant can tell the judge about any defenses to eviction she might have, for example: the property is still livable; the landlord did not properly terminate the lease; the landlord did not give a notice to vacate after terminating the lease; or the landlord is retaliating against the tenant for asking for repairs. A judge can order the tenant’s eviction for violating the terms of her lease (e.g., not paying rent) or after the landlord properly terminated the lease and gave a subsequent notice to vacate. If the tenant lives in public housing, federally subsidized housing, or a tax credit property, the landlord must have good cause (like serious violations of your lease) to terminate or not renew the tenant’s lease, and there may be other rights such tenants may have, such as access to a grievance procedure.

Q. 4-13 How can I recover my personal property from the leased premises?

It depends. If FEMA and federal security officials are in control of when and how evacuees are allowed to return to their homes, you may have to wait to return. If there are no such limitations on your return, you can go and recover your personal property from the leased premises.

Between evacuation and when the agencies permit a return, the best advice we can give an evacuee is to try to contact the landlord and determine whether the landlord (1) knows anything about the condition of the property and (2) has been able to do anything to secure the property.