GEC C.S.H.B. 2016 75(R) BILL ANALYSIS BUSINESS & INDUSTRY C.S.H.B. 2016 By: Burnam 4-14-97 Committee Report (Substituted) BACKGROUND The current "repair and deduct" statute is onerous to tenants because it requires two written notices. PURPOSE This bill would simplify the process of tenants' getting basic repairs that affect health and safety. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Section 92.056, Property Code, is amended as follows: Sec. (a) is amended by moving all the provision to Sec. (b) except language making the landlords duty under this section subject to Section 92.052(b) and Section 92.054, Property Code, regarding conditions that are caused by the tenant amd regarding condition that are insured casualties, respectively. Sec. (b) incorporates provisions from Sec. (a) in current law and provides that a tenant does not have to give the landlord two separate notices of the tenant's intent to repair or remedy a condition that material affects the tenant's physical health or safety, if the original notice was sent via certified mail. Strikes language requiring reasonable availability of materials, labor, and utilities from a utility company which are added to Sec. (d). Conforms appropriate subdivisions to reflect these changes. Adds Sec. (c) providing that the tenant's notice "has been received," for the purposes of this statute, if the landlord or the landlord's agent or employee has actually received the notice or the U.S. Postal Service has attempted delivery of the notice. Adds Sec. (d) creating a rebuttable presumption that seven days (from when the tenant's notice has been received by the landlord) is a reasonable time to repair or remedy a condition (compared to current law which provides that the owner has seven days after receiving the second request before the tenant can seek certain remedies). Adds Sec. (e) striking language that was moved to Sec. (a). Incorporates provisions from Sec. (b) in current law and makes technical changes to conform the remainder of the subdivisions with the changes made in Sections (a), (b), and (d). Retitles Sec. (c) in current law to Sec. (f) and makes non-substantive technical change. SECTION 2. Amends Section 92.0561, Property Code, as follows: (a) Changes a reference to "Subsection (a)" to "Section 92.056 (b)" to conform with previous changes. (b) Changes the tenant's maximum repair deduction from one months' rent to one months' rent, or $500, whichever is greater. (c) Changes the tenant's maximum repair deduction from one months' rent to one months' rent, or $500, whichever is greater. (d)(1)(2) Makes conforming changes to address the elimination of the two notice requirement if the original requirement was sent via certified mail. SECTION 5. Effective date: January 1, 1998. SECTION 6. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE SECTION 1. Deletes language stating that the statute applies when the landlord "knew or should have known" about the problem's existence. The original bill eliminated the requirement of a second notice; the substitute requires the original notice to be sent via certified mail if there is to be no second notice. The substitute further provides that the tenant's notice "has been received," for the purposes of this statute, if the landlord or the landlord's agent or employee has actually received the notice or the U.S. Postal Service has attempted delivery of the notice. The substitute also creates a rebuttable presumption that seven days (from when the tenant's notice has been received by the landlord) is a reasonable time to repair or remedy a condition (compared to current law which provides that the owner has seven days after receiving the second request before the tenant can seek certain remedies). The substitute deletes language allowing a tenant who elects to terminate the lease to remain on the premises not later than the 30th day after the date the lease was terminated and language releasing the tenant from the obligation to pay rent. The substitute deletes the requirement that a landlord respond to a tenant's written notice by the fifth day by mail or written notice that (1) denies the existence of a condition, states that the condition is one that the landlord does not have to repair or remedy, or state the condition is an insured casualty; (2) denies the condition materially affects the physical health and safety of an ordinary tenant; (3) asserts the tenant's notice was given at a time the tenant was delinquent in paying rent; or (4) explains a plan of action to address the condition, including the activities to be performed and a specific, reasonable period for completion of each activity. The substitute deletes language entitling the tenant to actual damages, additional damages not to exceed twice the actual damages, and a civil penalty under Section 92.0563 if a landlord in bad faith sends a notice to a tenant. SECTION 2. The substitute changes the tenant's deduction for the cost of repairs from two month's rent to one month's rent or $500, whichever is greater. The substitute deletes language requiring the the landlord to give a written request in order to get a reasonable description of the intended repair or remedy. The substitutes deletes language giving the tenant the right to repair and deduct if there is backup or overflow of raw sewage inside the tenant's dwelling or flooding from broken pipes or natural drainage inside the dwelling. The substitute restores language in current law that requires the landlord be notified in writing by the appropriate local housing, building, or health official or other official having jurisdiction that the lack of heat or cooling materially affects the health or safety of an ordinary tenant. The substitute restores language that the landlord must be notified in writing by the appropriate local housing, building, or health official or other official having jurisdiction that the condition materially affects the health or safety of an ordinary tenant. Makes conforming changes to address the elimination of the two notice requirement if the original requirement was sent via certified mail. SECTION 3. The substitute deletes "Sec. 92.0564. OTHER JUDICIAL REMEDIES" created by the original bill which would have allowed a governmental entity or civic association acting on a tenant's behalf to give repair notices, file suit, and recover court costs and reasonable attorney's fees. This section is replaced by the effective date which is changed to January 1, 1998. SECTION 4. The substitute deletes subsections (g) and (h) in the original bill that would have required the landlord to notify tenants of a change in ownership or management of the rental property within 15 days of that change. SECTION 4 is changed to the Emergency Clause. SECTION 5. The substitute changes the effective date to January 1, 1998 from September 1, 1997. SECTION 6. The substitute renumbers the Emergency Clause to SECTION 4.