Deducting rent for repairs in Texas for unwholesome pool

Question

My question is whether the following situation would likely meet the criteria to be able to deduct rent for repairs:

• The property had weekly pool maintenance for years, until it suddenly stops without any communication or notice. The pool maintenance company says their contract was stopped by the landlord without explanation.
• The lease says it is the landlord's responsibility to maintain a pool service.

In Texas, a tenant has the right to pay for repairs and deduct them from the rent if:

• The problem affects the health/safety of the tenants
• The landlord has not repaired the problem in a timely manner (I think the example given in the rules is 7 days is an appropriate timeframe).

In the city in which I am located, there is further city ordinance:

• Sec. 8-430. - Ponds or pools of unwholesome water.
• It shall be unlawful to keep or maintain on any property within the city a pond, pool, depression or container which contains unwholesome, impure or offensive water, or which is conducive to the breeding of mosquitoes.

The reason for this city ordanance is because it is a health and safety concern to breed mosquites in the area due to the presence of West Nile virus. Although the ordinance doesn't specifically say this.

So, after having no useful response from the landlord for say, 1 month, and now having a rather unwholesome pool. Would it be appropriate to pay for repairs (professional pool service to clean up the water and maintain the equipment) and deduct it from rent? I'm simply dubious about whether a green, algae filled swimming pool could meet the threshold of a tenant health and safety concern, but when this is specifically unlawful in the city under "Health and Sanitation" rules, it seems to be a stronger argument.

Are local health and safety laws are taken into account when determining what is a health and safety violation under the Texas Property Code?

Answer 1

The tenant would first follow the Texas AG's recommendation to consult with an attorney. You can also petition justice court for a court order without an attorney. Under the law (§92.052) it is possible that you could deduct cost of repairs from your rent. First though you have to give written notice to the landlord. The landlord must make a diligent effort to repair if

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.

I assume subparagraph (A) is the issue, and the relevant factual issue would be whether the condition materially affects physical health or safety. If after a reasonable time (7 days unless it would be reasonable for it to take longer) the repairs have not been effected, you might consider an alternative, such as terminating the lease, or doing the repairs under §92.056, which then leads you to §92.0561. Note for example that

(b) The tenant's deduction for the cost of the repair or remedy may not exceed the amount of one month's rent under the lease or $500, whichever is greater.

and also

(d) Repairs under this section may be made only if all of the following requirements are met:

therefore you can't just "do it", you have to make sure you comply with that set of requirements. The last of the requirement is that

(3) Any one of the following events has occurred:...

(D) The landlord has been notified in writing by the appropriate local housing, building, or health official or other official having jurisdiction that the condition materially affects the health or safety of an ordinary tenant

so a complaint to the local health department would not be inappropriate. It is not mandatory, you can satisfy the "any of the following" requirement in other ways. For example "failed to remedy the backup or overflow of raw sewage" (nope), "the water service to the dwelling has totally ceased" (nope), or "agreed in the lease to furnish heating or cooling equipment" (nope).

You are not necessarily hosed, this just points out why it is important to read the actual statutes (and case law, but we can hope that the statutory law clarifies the matter). The point is that tenant repairs are limited under subsection (d). Written notification by "the appropriate local housing, building, or health official or other official having jurisdiction" turns out to be very important.