What rights does my son have since the apartment manager is renovating the upstairs unit?

Full question:

My oldest son is renting an apartment in Austin TX with a roommate. The apartment above them is in renovation. It belongs to the manager. The problem being is the SMELL of chemicals they are using is SO strong the boys are unable to stay in their apartment. They have complained to the head of maintenance and to the manager. They refuse to do a thing. Their eyes water and they both have headaches. They have been staying with friends but that is getting rediculous. What rights do they have.

• Category: Landlord Tenant
• Date: 04/07/2025
• State: Texas

Answer:

The following is a statute:

§ 91.004 PROP. Landlord's Breach of Lease; Lien

(a) If the landlord of a tenant who is not in default under a lease
fails to comply in any respect with the lease agreement, the landlord is
liable to the tenant for damages resulting from the failure.

(b) To secure payment of the damages, the tenant has a lien on the
landlord's nonexempt property in the tenant's possession and on the rent
due to the landlord under the lease.

Section 92.052

(a) A landlord shall make a diligent effort to repair or remedy a
condition if:

(1) the tenant specifies the condition in a notice to the person to
whom or to the place where rent is normally paid;

(2) the tenant is not delinquent in the payment of rent at the time
notice is given; and

(3) the condition:

(A) materially affects the physical health or safety of an ordinary
tenant; or

(B) 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.

(b) Unless the condition was caused by normal wear and tear, the
landlord does not have a duty during the lease term or a renewal or
extension to repair or remedy a condition caused by:

(1) the tenant;

(2) a lawful occupant in the tenant's dwelling;

(3) a member of the tenant's family; or

(4) a guest or invitee of the tenant.

(c) This subchapter does not require the landlord:

(1) to furnish utilities from a utility company if as a practical
matter the utility lines of the company are not reasonably available; or

(2) to furnish security guards.

(d) The tenant's notice under Subsection (a) must be in writing only if
the tenant's lease is in writing and requires written notice.

§ 92.053 PROP. Burden of Proof

(a) Except as provided by this section, the tenant has the burden of
proof in a judicial action to enforce a right resulting from the
landlord's failure to repair or remedy a condition under Section 92.052.

(b) If the landlord does not provide a written explanation for delay in
performing a duty to repair or remedy on or before the fifth day after
receiving from the tenant a written demand for an explanation, the
landlord has the burden of proving that he made a diligent effort to
repair and that a reasonable time for repair did not elapse.

§ 92.056 PROP. Landlord Liability and Tenant Remedies; Notice and Time
for Repair

(a) A landlord's liability under this section is subject to Section
92.052(b) regarding conditions that are caused by a tenant and Section
92.054 regarding conditions that are insured casualties.

(b) A landlord is liable to a tenant as provided by this subchapter
if:

(1) the tenant has given the landlord notice to repair or remedy a
condition by giving that notice to the person to whom or to the place
where the tenant's rent is normally paid;

(2) the condition materially affects the physical health or safety of
an ordinary tenant;

(3) the tenant has given the landlord a subsequent written notice to
repair or remedy the condition after a reasonable time to repair or
remedy the condition following the notice given under Subdivision (1) or
the tenant has given the notice under Subdivision (1) by sending that
notice by certified mail, return receipt requested, or by registered
mail;

(4) the landlord has had a reasonable time to repair or remedy the
condition after the landlord received the tenant's notice under
Subdivision (1) and, if applicable, the tenant's subsequent notice under
Subdivision (3);

(5) the landlord has not made a diligent effort to repair or remedy the
condition after the landlord received the tenant's notice under
Subdivision (1) and, if applicable, the tenant's notice under Subdivision
(3); and

(6) the tenant was not delinquent in the payment of rent at the time
any notice required by this subsection was given.

(c) For purposes of Subsection (b)(4) or (5), a landlord is considered
to have received the tenant's notice when the landlord or the landlord's
agent or employee has actually received the notice or when the United
States Postal Service has attempted to deliver the notice to the
landlord.

(d) For purposes of Subsection (b)(3) or (4), in determining whether a
period of time is a reasonable time to repair or remedy a condition, there
is a rebuttable presumption that seven days is a reasonable time. To
rebut that presumption, the date on which the landlord received the
tenant's notice, the severity and nature of the condition, and the
reasonable availability of materials and labor and of utilities from a
utility company must be considered.

(e) Except as provided in Subsection (f), a tenant to whom a landlord
is liable under Subsection (b) of this section may:

(1) terminate the lease;

(2) have the condition repaired or remedied according to Section
92.0561;

(3) deduct from the tenant's rent, without necessity of judicial
action, the cost of the repair or remedy according to Section 92.0561;
and

(4) obtain judicial remedies according to Section 92.0563.

(f) A tenant who elects to terminate the lease under Subsection (e)
is:

(1) entitled to a pro rata refund of rent from the date of termination
or the date the tenant moves out, whichever is later;

(2) entitled to deduct the tenant's security deposit from the tenant's
rent without necessity of lawsuit or obtain a refund of the tenant's
security deposit according to law; and

(3) not entitled to the other repair and deduct remedies under Section
92.0561 or the judicial remedies under Subdivisions (1) and (2) of
Subsection (a) of Section 92.0563.

(g) A lease must contain language in underlined or bold print that
informs the tenant of the remedies available under this section and Section
92.0561.

§ 92.0563 PROP. Tenant's Judicial Remedies

(a) A tenant's judicial remedies under Section 92.056 shall include:

(1) an order directing the landlord to take reasonable action to repair
or remedy the condition;

(2) an order reducing the tenant's rent, from the date of the first
repair notice, in proportion to the reduced rental value resulting from
the condition until the condition is repaired or remedied;

(3) a judgment against the landlord for a civil penalty of one month's
rent plus $500;

(4) a judgment against the landlord for the amount of the tenant's
actual damages; and

(5) court costs and attorney's fees, excluding any attorney's fees for
a cause of action for damages relating to a personal injury.

(b) A landlord who knowingly violates Section 92.006 by contracting
orally or in writing with a tenant to waive the landlord's duty to repair
under this subchapter shall be liable to the tenant for actual damages, a
civil penalty of one month's rent plus $2,000, and reasonable attorney's
fees. For purposes of this subsection, there shall be a rebuttable
presumption that the landlord acted without knowledge of the violation.
The tenant shall have the burden of pleading and proving a knowing
violation. If the lease is in writing and is not in violation of Section
92.006, the tenant's proof of a knowing violation must be clear and
convincing. A mutual agreement for tenant repair under Subsection (g) of
Section 92.0561 is not a violation of Section 92.006.

(c) The justice, county, and district courts have concurrent
jurisdiction of an action under Subsection (a) of this section except
that the justice court may not order repairs under Subdivision (1) of
Subsection (a) of this section.