How can you defend yourself if you are sued for failing to install security devices?
A landlord has a defense to liability under Section 92.165 if on the date the tenant terminates the lease or files suit the tenant has not fully paid costs requested by the landlord and authorized by the Property Code. A management company or managing agent who is not the owner of a dwelling and who has not purported to be the owner in the lease has a defense to liability under Sections 92.164 and 92.165 if, before the date the tenant is in possession of the dwelling, or the date of the tenant’s request for landlord action, and before any property damage or personal injury to the tenant, the management company or managing agent met the following criteria:
- Did not have funds of the dwelling owner in its possession or control with which to comply with legal requirements.
- Made a written request to the dwelling owner asking that the owner fund and allow installation, repair, change, replacement, or rekeying of security devices as required and mailed the request, certified mail return receipt requested, to the dwelling owner.
- Not later than the third day after the date of receipt of the tenant’s request, provided the tenant with a written notice (a) stating that the management company or managing agent was without the owner’s funds and had made the required written request; (b) stating that the owner had not provided or would not provide the necessary funds; and (c) explaining the remedies available to the tenant for the landlord’s failure to comply.
- Required Security
- Tenant’s Requests
- The Landlord’s Duty
- Selecting the Devices
- Charging the Tenant
- Sued by the Tenant
- Landlord Defenses
Frequently Asked Questions
What defenses does a Texas landlord have against a security device claim?
Texas law provides several defenses, including: the tenant accepted the dwelling knowing the device was not installed; the tenant agreed in writing that the device would be repaired by a certain date and that date has not passed; the damage or missing device resulted from the tenant's own deliberate act or omission; or the landlord did not have a reasonable time to complete the repair after receiving written notice.
Is it a defense that the landlord did not know the device was broken?
If the tenant never gave the landlord written notice that a device was broken or missing, the landlord's obligation to repair may not have been triggered. Written notice is generally required to start the clock on the landlord's repair obligation, which is why documented responses to tenant requests are so important.
Is it a defense that the lease waives the tenant's security device rights?
No. Lease provisions that attempt to waive the tenant's rights regarding security devices are void under Texas law. A waiver clause in the lease does not protect the landlord and cannot be relied upon as a defense.
What if the security device was working properly when the tenant moved in?
This is a relevant fact, particularly if the tenant caused the damage. Documentation of the device's condition at move-in, through a move-in checklist signed by the tenant, is the best evidence of the original condition and can be critical in defending a claim that a device was never functional.
How important is documentation when defending a security device claim?
Extremely important. Landlords who document devices at move-in, respond promptly in writing to tenant requests, and keep records of all repairs and replacements are in a significantly stronger position. Poor or missing documentation is frequently the deciding factor between a winnable and a losing case.
What should a landlord do if a tenant threatens to sue over a security device issue?
Contact Cook Keith & Davis immediately. Do not make admissions, do not promise repairs you may not be able to complete on the tenant's schedule, and do not ignore the threat. Early involvement by counsel often resolves these matters before they reach litigation and almost always results in a better outcome than waiting.
Can a landlord countersue a tenant who brings a frivolous security device claim?
If a tenant brings a security device claim that is without merit, the landlord may be able to recover attorney's fees and costs in some circumstances. Contact us to evaluate whether the facts of your situation support a counterclaim.