Fleeing a lease due to health concerns

[jjones8601]

I have a LL for our single family home rental that was negligent in the fact that he did not handle a repair of our pool for three (3) weeks. It turned almost black and was providing a breeding ground for mosquito larvae. At this point we provided a 30 day notice to vacate due to negligence.

I called the city health inspector after the three (3) week wait and she notified the management company of a potential $4,000 per day fine. After eight (8) days, the problem was not corrected and we surrendered the property back to the LL.

Does the LL have the ability to keep my deposit for not staying for the 30 days or does our fleeing due to health concerns mandate a full refund of our deposit?

A few questions:
1) Did you have a lease or were you a month to month tenant? If m2m, what state are you in? (to determine how long of a notice to vacate you had to give)

2) Did you send a request for repairs IN WRITING to the LL? Send it by a method to prove delivery to him (like certified)? If nothing exists in writing, you can't prove you ever asked for repairs until the health inspector contacted him. (Never call for repairs. Always send repair requests in writing!) If no copy of the repair request, he will state he knew of no problem until the inspector called.

3) What is the time limit for repairs in your state? Some states allow the LL to take up to 30 days to repair a non-emergency issue. (A pool would be classified as a non-emergency issue.)

4) Do you have a written statement from the health inspector to show the pool issue met the standards of a noninhabitable unit? Usually that is required (to be uninhabitable) before you can terminate. If no statement, get one.

You probably are responsible for the rent for the 30 day notice if that is the required amount of notice in your state. You sent a 30 day notice prior to any health inspector being called.

One other question:
Did your agreement list who would be responsible for pool maintenance? Normally, pools at single family houses are maintained by the tenants unless noted otherwise in the lease or agreement. If silent on this issue, you may have been the one to take care of the pool. Chemicals are normal maintenance, not repairs.

[jjones8601]

The house is in Texas.

1) We were eight (8) months in to our one (1) year lease. (Second term)

2) A written email was sent on April 7, 2009 requesting pool repairs and was finally replied to by the LL on April 27, 2009. The same date I informed him of the health inspectors visit. I also have 10 recorded phone conversations begging him to fix the pool equipment between April 7, 2009 and April 27, 2009 (which equipment repair is their responsibility per the pool addendum) because it was turning almost black. Hence the reason I called the health inspector.

3) In Texas, you have five days (5) days to make repairs or provide a written notice of the delay to the tenant.

4) I have the health inspectors case number and it is available. I also have the city building inspectors report (see below).

On May 5, 2009, the pool was still dark green and the condition of the pool was turned over to the LL by the city due to their neglect back on April 27, 2009 by the health inspector due to their delay of repairs. Here again, more than five days passed without the problem being resolved or any notice given to us.

After the inspection on April 27, 2009 we tendered a 30 notice to vacate due to LL negligence. However, we made an immediate evacuation of the property on May 5, 2009. We had the place professionally cleaned and surrendered the property before COB on May 5, 2009. I received an email from the LL on May 6, 2009 that the property was in good condition minus normal wear and tear.

Another problem is that the garage was modified and attached to the house to make a game room. However, that is not reflected on the Dallas Central Appraisal District as shows as a detached garage. The ceiling is sagging in that room and on May 1, 2009 I had the city building inspector come out. He sent a report noting 16 different violations. Violations including the non inspected addition to the house, the sagging ceiling in above mentioned room, exposed wiring and a plethora of other items.

I tendered the following email to the LL at 8:00AM:

ANNOUNCEMENT TO INVOKE TENANT RIGHTS TO END LEASE AGREEMENT BEFORE FULFILLMENT OF 30 DAY NOTICE TO VACATE

Tenants
XXXXXXXX
XXXXXXXX

Property
XXXXXXXXXXX
XXXXXX, Richardson, TX

Management of said rental property
XXXXXXXXXX

Management Contact
XXXXXXXXXX


This Announcement to “Invoke Tenant Rights to Vacate Property before 30 Day Notice” is hereby given this 5th day of May, 2009. (The next day of business due to this being filed after close of business via email, Monday, May 04, 2009)

Due to continued environmental hazards not corrected in a more than reasonable time, hereby acts as the immediate termination of said lease due to managements company for noncompliance of health standards. Hence foregoes any attempt to absorb damages for early termination from the lessee for early termination.

Said property will be surrendered at 17:00, (5:00PM) on May 5th, 2009.

Utilities for above said property will be terminated in the tenants’ name on Wednesday, May 6th, 2009 at 07:00, (7:00AM.)

As for the above said property items, such as; Keys, Remote Garage Openers, will be surrendered before COB (5:00PM) May 5, 2009.
• A walkthrough will be available by the former tenant(s) at above aforementioned property and time, 08:00 (8:00AM) on May 6, 2009.
• Adequate notice will be given to aforementioned tenant. (Contact information provided below).

Please reply promptly for the reason that the tenant has expended an exorbitant amount of resources to flee the dwelling for health concerns and needs to close this matter in a timely manner.

Tenant Contact Info
123-123-1234

Forwarding Address
XXXXXXXXX
XXXXXXXXX

Allow me to play devil's advocate for a minute. Don't take offense. This will be the response from the LL.

E-mails are not usually admissable in court. They are too easily faked so most judges won't believe them. Always send all repair requests in writing, snail mail, or perferrable certified rrr. (True! It is extremely easy to use any publishing software to type up a fake e-mail and response and print it out. Computer saavy judges know this.)

Did you check the legality of recording phone conversations without notification to the party being recorded in your state? Some states require that you notify the person being recorded. Otherwise the conversations may be inadmissable. (Please check your state law on this. If not legal in your state, you can't use these. Plus, see the next section. These calls can only count as your first notice, not the second.) Also, did you actually talk to the LL or just his machine/voice mail? Wasn't that machine/voice mail broken? (remember, his response)

Next, after checking TX statutes, you have not followed the law to invoke your right to terminate. See Texas Property Code - Section 92.056. Landlord Liability And Tenant Remedies; Notice And Time For Repair - Texas Attorney Resources - Texas Laws. Per the statute, you were to have given notice (can be verbal), waited the 7 days (not 5), and then sent a WRITTEN notice (e-mail and phone calls don't count as written). The statute clearly says written notice sent by certified or registered mail. Without that, you may not have invoked your right to terminate. Even if a judge accepted the e-mails as notice, the LL didn't reply to them until the 27th and would say he didn't receive them until that time. (See 2 paragraphs down.) He would say that was the first time he had been notified and you then immediately terminated without giving him the required time to repair. (That would be up to a judge to decide. But you didn't do what the statute says.)

You say equipment repair is the LL's responsibility. What equipment was broken on the pool? Was it a mechanical piece, or chemicals? If the pump was broken, it would be the LL's responsibility. If it was lack of chemicals, it would be yours. Would chemicals have kept the pool from turning black while you awaited repairs? How did a black pool affect the habitability of your unit? The statutes says the repair must show that "the condition materially affects the physical health or safety of an ordinary tenant". How are a few mosquito bites affecting your health or safety? A mosquito dunk (a small chemical disc) could have been dropped in the pool for about $10 to stop mosquitos from breeding there. As a chemical, this would have been your responsibility. (A judge might buy this. Stopping an health problem with a $10 item that you just drop in the pool would have been an easy stop gap solution. After which you could have used repair and deduct to have the pool fixed on the LL's dime.)

You didn't send the notice to terminate by written notice either. (How can you prove the LL got it? You can be sure he will say he didn't. He didn't know you moved out until you called him.) It could have gone to spam filters, his computer could have been broken, his electric out, the internet provider down, etc. No record that he actually received it or read it. If so, the LL had NO notice that you would vacate. This notice should have been sent by written form, either hand delivered or mailed. (Can't give you an out for this one. It had to be written, not e-mailed.)

The converted garage is not an issue. You hadn't made a writen compalint about this or requested any work done to it. The building inspector didn't note it until his inspection on the 1st and the LL probably didn't get a copy until you vacated. That will not be admissable in the issue at hand. (To a judge, to bring up unrelated items such as this seems petty. Judges want to stick to the issue and not go off on a tangent. They don't like people delaying cases with this type of unrelated issue. They want their cases short so they can stay on their schedule. The only part of that report that is relevant is what he wrote about the pool. The LL still has time to fix all the other items. Plus calling the building inspector after the health inspector and after you had aready given notice to vacate will seem retaliatory.)

Devil's advocate over. If the LL challenges this and wants to hold you responsible for the rent, this will go before a judge or magistrate. You did fail to send the written notice as required and didn't send the termination notice in written form by mail or in person. The LL can claim he didn't get appropriate notice. That's not good for you. The LL was notified by phone and didn't make repairs (if it was a mechanical part that caused the pool problem.) Bad for him. This could go either way.

Please, in future, always send repair requests in writing, certified mail, return receipt requested. This eliminates the need for the second notice and ensures you have preserved your rights under the repair statutes. Good luck.

My response is pending. The moderator must review the post since I listed a link to TX state statutes. Once reviewed, it should be posted here.

[jjones8601]

Thanks for the reply!

I have back and forth email messages with the LL during the entire thing from 4/27/09 - 5/5/09. He replied to the original email from 4/7/09 and we’ve gone back and forth since. If they wish to perjure themselves in court, then we’ll deal with that with insurmountable evidence. We are both keeping these correspondences per the LL.

In Texas, only one person needs to know about a recorded conversation. I knew...

The pool was broken with the main backwash valve inoperable and a broken main drain leaking out in the front yard. With the backwash valve broken, the pump would not circulate the water. Additionally, I tried to maintain the 30,000 gallon pool by manually dispersing chlorine and using a pool brush to circulate the stagnate water for almost a month. It cost me hundreds of dollars and much stress.

I provided a 30 day notice to vacate in person on 4/28/2009 and have a LL initialed copy as well. As for the need to leave before that notice for health concerns, I feel very justified. Once the city mandated the LL to take control of correcting the stagnate pool, I felt any attempt by me to eliminate mosquito larvae would not be required. They did not do so in a timely manner.

I changed the lock code every time the pool company, sent by the LL, came so I could document the efforts of the LL to correct the problem. They came three (3) times in eight (8) days and the lack of response is indicated in our emails to one another. May 5, 2009 the pool was still green, unusable, a cesspool and a breeding ground for bacteria and other hazards, I did what I needed to do to protect myself and family.

This same thing happened before in 2008. In June 2008 I contacted the LL via email and notified them of a pool equipment problem. I have a recorded phone conversation with the LL that he was not going to buy a new pump from the technicians company, indicated as broken per his service technician, so he bid for one on eBay. It was August 2008 before the pump was installed and I paid all chemical costs to revive the black stagnate water to a usable condition not to mention many hours of labor.

The converted garage is a concern. I called the building inspector because I noticed the ceiling of the illegal room was sagging immensely. It was very humid and we were concerned for our safety getting to the garage or backyard.

The LL bought the house in 2007 and we were the first tenants to rent the property. Either the LL did not pay for a survey or did and therefore knew of the illegal addition. Either way, the property was not registered with the city as a rental property until 4/9/2009 and they avoided a mandatory rental inspection. They registered it two (2) days after my request for repairs. I rented the property from 8/15/2007 – 5/5/2009. Why register the property as a rental at that time?

[jjones8601]

I would also like to state that the LL accepted verbal and email requests for repairs for 20 months. That sets precedence and therefore is an acceptable method of repair communication between both parties regardless of the lease or law.

Law trumps all. Verbal requests may set a precedent, but the law is what is judged in court. The law says you must make a written repair request before you can avail yourself of your right to terminate. I certainly wish you had done so. Please do so for all future repairs wherever you live so there can be no question about your rights.

If you want the e-mail to be admissable in court, prepare now. Ask your service provider for a record of these e-mails. The record should include the IP addresses of each party. Highlight those sent and received with the LL. This will document those and make them admissable. An internet saavy judge will allow them with the documentation to back them up. Get this record now. If it goes to court you won't have time to get them.

You may not have to go to court, but better to prepare for it and not have to go, than to never have prepared. Hopefully, this will not come to that. May your next place have a better LL! Still, protect yourself with repair requests in writing, sent registered or certified mail. Good luck.

[jjones8601]

Mr. XXXXXX,

I have not heard back from you as to the return of our deposit. I have provided a forwarding address and need to know which avenue you wish to proceed with. Return our deposits (both the one (1) months rent and pet deposit) in full, or attempt to retain any of our monies due.

We are not responsible for any downtime the dwelling may have after our departure for health concerns on May 5, 2009. This is due to the city inspectors report and the many violations that you must correct per Mr. Pitcocks’ (city of Richardson Building Inspector ) report. These items need to be corrected prior to the dwelling being leased to any other tenant and therefore any “downtime” is not of our interest. I will not even mention, at this time, the room attached to the garage not recognized by Dallas Central Appraisal District.

I will allow 30 days from May 5, 2009 for the return of the entire deposit, ($1,350 + $250 pet deposit = $1,600). If we have not received our deposit in full by such time, we will proceed accordingly to mitigate our damages and losses. Therefore, you have until June 5, 2009 to return our deposits .



Best Regards,

XXX XXXXX

XXX-XX-XXX



--------------------------------------------------------------------------------
From: XXXXXXXXXXXXX.net>
To: <XXXXXXXXXX@sbcglobal.net>
Sent: Wednesday, May 6, 2009 12:54:39 PM
Subject: RE: XXXX XXX XXXX Pool Lock

Mr. & Mrs. Jones,

A walk through of the home was conducted this morning. There were no issues regarding the condition less normal wear and tear.

Feel free to remove the lock at any time.

XXXXXXX XXXXXX V.P.
XXXXX XXXXXXXX XXXXXXXXX Co's. Inc.


--------------------------------------------------------------------------------
Date: Tue, 5 May 2009 18:27:13 -0700
From: XXXXXX@sbcglobal.net
Subject: XXXX XXX XXXX Pool Lock
To: xxxxxxxxxxx@hotmail.com
CC: XXXXX.XXXXXX@titlemail.com; XXXX.XXXXXX@cor.gov


Mr. XXXXX,

Thank you for accepting the two (2) keys and two (2) garage remotes Tuesday, May 5, 2009 for 2002 XXX XXX Drive and acknowledging the surrendering of said property.

I forgot to ask if you have a lock for the pool gate as I would like to remove and retrieve mine. I felt obligated to keep the lock intact until your company had a chance to provide one for compliance reasons. I have not changed the code from the last time Xxxxxxxxxx Pool Service visited. The code is set to 6666.

Please let me know when I may retrieve the lock.


Best Regards,

XXXXXXXXXXXXX