Burst Pipes in Rental Premises

What happens when the frozen pipes in your rental premises burst, causing damage?

RENTAL PREMISES REQUIRE A REPAIR 

Under the Texas Property Code, a landlord has a duty to make repairs and remedy any conditions where the condition “materially affects the health and safety of an ordinary tenant” OR if the condition 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. 

In order to get the landlord to repair, it is required that the tenant who is not delinquent in rent give the landlord a notice specifying the condition. It’s advisable that this notice should always be in writing. The notice is required to be in writing where there is a written lease requiring that the notice be in writing. The landlord should make the repairs within 5 days or respond, generally noting why more time is needed. 

This subchapter does not require the landlord to furnish utilities from a utility company if, as a practical matter, the company’s utility lines are not reasonably available. 

If a lease requires that the tenant maintain the premises at a certain temperature, the failure to maintain the premises at said temperature may release the landlord of the duty to repair the burst pipes. 

RENTAL PREMISES ARE NOT USABLE FOR RESIDENTIAL PURPOSES

If a frozen pipe has burst and completely flooded the unit leaving the rental premises as a practical matter totally unusable for residential purposes then either the landlord or tenant may terminate the lease by giving written notice to the other any time before repairs are completed. If the lease is terminated, the tenant is entitled to a pro-rata refund of rent from the date of the tenant moves out as well as a refund of any security deposit to which the tenant may be entitled under the law. 

However, this section does not apply if the burst pipes are caused by the negligence or fault of the tenant, family, or guest. A tenant’s failure to maintain the premises to a specific temperature required by the lease may be considered such negligence on the part of the tenant. 

If the flooding renders, the rental premises are partially unusable for residential purposes (and where the flooding is not caused by the negligence or fault of the tenant, tenant’s family member, or guest, the tenant is entitled to a reduction in the rent in an amount proportionate to the extent the premises are unusable because of the flooding, but only on the judgment of a county or district court.  A landlord and tenant may agree otherwise in a written lease.

DISASTER AS PRETEXT FOR CONSTRUCTIVE EVICTIONS

Some landlords may use the disaster and related property damage as a pretext to Evict tenants they have been prohibited from evicting under the current eviction moratorium. A tenant may be able to assert a constructive eviction action against such a landlord. 

Constructive Eviction gives the tenant who has abandoned the property the remedy to terminate the lease and recover damages caused by the landlord’s wrongful eviction. These damages may include the difference between the agreed rent for the duration of the lease and comparable rent paid elsewhere, lost profits, the reasonable cost of moving, and the depreciation in value of the property caused by the move are recoverable (Reavis v. Taylor, 162 S.W. 2d 1030).

In addition, a landlord may even be liable for punitive damages if the landlord acted knowingly or maliciously (Van Sickle v. Clark, 510 S.W. 2d 664)

To show that a tenant was constructively evicted, you must prove that  1)  the landlord intends for the tenant to no longer enjoy the premises (this may be presumed), 2)  material acts or omissions by the landlord, the landlord’s agents, or those acting with the landlord’s permission substantially interfere with the tenant’s use and enjoyment of the property for the purposes for which it was rented, 3) the acts permanently deprive the tenant of the use and enjoyment of the premises, and 4) the tenant abandons the property within a reasonable time after the acts or omissions occur (Stillman v. Youmans, 266 S.W. 2d 913).

PERSONAL PROPERTY AND OTHER DAMAGES 

Any claims for damage to furniture and personal property should be made with the tenant’s rental insurance company. Generally, a lease will require a tenant to maintain separate rental insurance. This insurance policy will not cover damage to the physical structure of the premises. The landlord may have the rental premises insured; however, such insurance will typically cover damage to the physical structure of the premises and not the personal property. 

As a general rule, compensation may not be obtained for losses, damage, or harm suffered as a result of an act of God, which means an occurrence due directly and exclusively to natural causes without human intervention and which no amount of foresight or care, reasonably exercised, could have prevented (including natural disasters). However, there are exceptions to this rule. 

One such exception is if the landlord had an insurance policy, and such insurance policy covers losses due to that specific disaster. However, typically this insurance will only cover damage to the physical structure of the property, so damages to any personal property of the tenant may not recoverable under this insurance. 

Another exception is any negligence that may be a substantial contributing cause of the damage. An “act of God” doctrine only applies where the natural disaster is the sole or exclusive cause of the damages. If it can be shown that the pipes burst because of negligence on the part of the landlord, then damages suffered by the tenant may be recoverable. 

FEMA RESOURCES

Tenants in covered counties that have sustained damages may apply for assistance at https://www.disasterassistance.gov/ or by calling 1-800-621-3362 or 1-800-462-7585 TTY. FEMA will cover only damages not covered by Home Owners or Renter’s insurance. If a tenant does not have insurance, they may apply for assistance from FEMA. 

The type of financial assistance FEMA may provide includes: Financial Assistance to obtain Temporary Housing, Hotel or Lodging Expenses Reimbursement, Home Repair or Replacement, Child Care expenses, Financial assistance for Damages to essential household items (room furnishings, appliances); clothing; tools (specialized or protective clothing and equipment) required for your job; necessary educational materials (computers, schoolbooks, supplies), Fuel for the primary heat source (heating oil, gas), Clean-up items (wet/dry vacuum, dehumidifier), Damage to an essential vehicle, Moving and storage expenses and other necessary expenses or serious needs as determined by FEMA. 

To see if you live in a covered county, check the FEMA website noted above or call the corresponding number. If your county is not noted, check back periodically as additional counties are being added frequently. 

Farwah Raza/Staff Attorney and Disaster Response Team Leader Legal Aid of NorthWest Texas