Landlord-tenant questions from the Hotline

Answers about smoke alarms, breached leases, ruined carpets, and more.

by Ron Walker   The following are actual questions recently received on the TAR Legal Hotline concerning landlord-tenant.

A property was listed for lease in MLS. A tenant, procured through a cooperating broker, leased the property. The landlord paid the listing broker her fee, and the listing broker paid the cooperating broker. Three weeks into the lease, the tenant breached the lease and abandoned the property. The listing broker is willing to return her portion of the fee to the landlord, but the cooperating broker is not. Does the listing broker or landlord have any right to demand the return of the fee from the cooperating broker?

Absent any evidence of fraud, dishonest action, or misrepresentation, probably not. The landlord has remedies for damages against the tenant and may recover the cost to lease the property to another tenant. The Agreement Between Brokers for Residential Leases (TAR Form 2002) provides that the listing broker will pay the cooperating broker upon execution of the lease and receipt of the first full month’s rent any prorated rent and security deposit. It does not provide for any return of the commission if the tenant breaches the lease.

The tenant signed a one-year lease and was paying $1,000 per month in rent. The tenant breached the lease six months into the lease. What remedies does the landlord have against the tenant?

A landlord is required to mitigate the damages caused by a tenant’s breach. Specifically, the landlord must exercise reasonable efforts to lease the property to another tenant. In this example, the landlord has potentially lost $6,000 in rent over the remaining term. If the landlord is able to lease the property to another tenant in two months, the landlord has lost only two months of rent or $2,000 (assuming the rent to the subsequent tenant is also $1,000). The landlord is also entitled to recover any costs associated with leasing the property to another tenant (for example, brokerage fees and marketing expenses). If we assume that it cost the landlord $500 to lease the property to another tenant and there was no physical damage to the property caused by the first tenant, the landlord’s damages in this example would be $2,500.

With the tenant’s permission, a lockbox was placed on the property during the last 30 days of the lease. The tenant had a dog in the property. A cooperating agent showed the property one morning when the tenant was at work. The cooperating agent placed the dog in a closet but forgot to let the dog out of the closet when he left. The dog made a big mess and ruined the carpet in the closet. At the end of the lease, the landlord attempted to deduct $150 from the security deposit for damage to the carpet in the closet. The tenant disputed the deduction and argued that the landlord should seek payment from the cooperating broker. May the landlord deduct the repair?

Under the TAR lease form, the landlord is obligated to pay the cost to repair a condition caused by the landlord or the landlord’s negligence. The tenant is obligated to pay those costs to repair a condition caused by the tenant, tenant’s guests, and the pet. The fact question to resolve in this case is whether the pet or the cooperating broker caused the damage. The tenant has a legitimate argument that it was the landlord’s guest that caused the damage and that neither the tenant, any guest of the tenant, nor the tenant’s pet caused the damage.

Is a landlord required to test the smoke detectors in the property each time a tenant moves in?

Yes. Section 92.258 of the Texas Property Code requires a landlord to determine if the smoke detectors are in good working order at the beginning of the tenant’s possession by testing the smoke detectors with smoke, by operating the testing buttons on the smoke detectors, or by following other recommended test procedures of the manufacturers for the particular models. During the lease, the landlord must inspect and repair the smoke detectors, but only if the tenant gives notice of a malfunction or requests that the smoke detectors be inspected or repaired.

Must a landlord install and maintain a certain number of smoke detectors in the property?

Local building codes or ordinances may require more than the requirements in the Property Code. But generally in single family homes, if the bedrooms are served by the same corridor, the landlord will need to install a smoke detector in the corridor in the immediate vicinity of the bedrooms; and if at least one bedroom is on a level above the living and cooking area, the landlord will need to install a smoke detector for the bedrooms in the center of the ceiling directly above the top of the stairway. The landlord will want to be careful to follow the manufacturer’s recommended procedures for installation. The Property Code also requires that the smoke detector must be on a ceiling or wall. If on a ceiling, it must be no closer than six inches to a wall. If on a wall, it must be no closer than six inches and no farther than 12 inches from the ceiling.

The tenant complained that the heater was not working properly. The repairman discovered that the heat exchanger in the gas unit was cracked and needed to be replaced. Under Paragraph 20D of the TAR lease form, the tenant pays the first $75 of any repair. For this type of repair, must the tenant pay the $75?

No. Paragraph 20D does not apply to repairs that are covered under Paragraph 20B. Paragraph 20B provides that the landlord will pay for any repairs that adversely affect the health or safety of an ordinary tenant and are not addressed in Paragraph 20A. A cracked heat exchanger is likely to adversely affect the health of an ordinary tenant.

Ron Walker is director of legal affairs for TAR.

Two people from each office can access the TAR Legal Hotline. For more information about this free member service, call 800/873-9155 or visit the Legal Section of the TAR members-only Web site.

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