San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:
Frequently, tenants facing eviction will show up to Court with a litany of reasons why their failure to pay rent should be excused, and why they should be allowed to remain in the premises despite this default. The argument usually goes something like this:
COURT: Is it true, Mr. or Mrs. Tenant, that you have not paid rent in 3 months?
TENANT: Well yes, but I have good cause.
COURT: And what cause is that?
TENANT: It's because the sink / toilet/ door / air conditioner/ (you get it) isn't working and I was told it would be fixed but it never was. * Another common variant is that the carpet stinks or their is some insect infestation in the property*
COURT: Did you ask the Landlord in writing to to fix the condition?
TENANT: Well no, but I called four times and they never answer when I call / Well no, but the Landlord knows it's broken/ No, but I was going to before I got served with a Notice to Vacate (
COURT: Did you have the condition repaired?
TENANT: No, but I have pictures to show you of how horrible the place is.
COURT: I'm sorry but you are not excused from paying rent and I have no choice but to grant the Landlord's eviction request.
TENANT: You didn't even look at my pictures / repair estimate/ dirty air filter.
At this point the freshly-evicted tenant usually storms off in a fit of anger, gets very emotional, threatens appeal, or does all 3.
In this situation, the Court cannot consider the Tenant's allegations about the condition of the property. This is because the only issue in an eviction suit (forcible entry & detainer action) is the right to actual possession of the premises. See Texas Rule of Civil Procedure 746.
While a Landlord's failure to keep the premises in a habitable condition may be a breach of the Lease, this breach is not the proper subject of an eviction suit.
Further, if a perceived defective condition of the premises does not has not been brought to the Landlord's attention in writing, and the Tenant has not (after sufficient notice and time) repaired the condition, that defective condition does not give rise to any affirmative defense that would excuse paying rent.
While the law (Chapter 24 of the Texas Property Code) does provide for certain "repair and deduct" remedies for the Tenant in certain instances, the procedure for implicating these remedies must be strictly complied with. Unless and until strict compliance has been demonstrated, the Landlord's perceived bad acts in maintaining the premises is not a good (or even feasible) defense for tenants facing eviction in Texas.
