Constructive Eviction in Texas

If a rental has become unlivable (as defined by Texas' warranty of habitability), tenants can use the legal concept of “constructive eviction” to break their lease without penalties. All states have some version of constructive eviction, but the specific situations in which it’s allowed—and the process by which it must happen—vary.

In Texas, the legal right to constructive eviction is granted to tenants via a combination of state statutes and common law (that is, rules established by court opinions). The statutes outline specific scenarios in which tenants may vacate and claim constructive eviction, while common law lays out general guidelines for the process.

Tenants may claim constructive eviction in the case of interrupted utilities

Texas has a law that specifically allows tenants to vacate and claim constructive eviction if their landlord interrupts utility service.¹ If such an interruption occurs, the tenant has the right to vacate the residence, void the lease, collect any related expenses (such as the cost of moving), get back one month’s rent plus $1,000, and receive attorney fees, if necessary.

However, this law doesn't apply if the utility interruption is due to a repair or an emergency, or if the lease calls for a tenant to pay the landlord directly for utilities and they’ve failed to make such payments. In one case, the owner of a trailer park informed the tenants it was closing down. Subsequently, the landlord stopped paying utility bills. One resident do not move out in time and had the utilities shut off. The court held that this did not violate the statute, since the resident was given ample notice and the ability to move.²

Removal of windows or doors could be constructive eviction

Another Texas statute allows a tenant to claim constructive eviction if a landlord removes a window, door, appliance, or fixture for any purpose other than a repair (in which case a replacement must be provided).³ A tenant can also terminate their lease if a landlord changes the locks on their rental for any reason other than nonpayment of rent—and even then, the landlord must provide a tenant with the ability to quickly get a new key, regardless of payment.

Both these statutes only apply to residential and not commercial leases. But, in a case where a landlord changed the locks on a space being used as both a residence and an office, the court held that the statute still applied.⁴

Other issues may warrant constructive eviction, too

Even if a tenant is dealing with an issue not described by the above statutes, they may still be able to terminate their lease. The problem must be a breach of Texas' implied warranty of habitability, which means that it seriously affects the health and safety of the tenant. In order to successfully claim constructive eviction, a tenant must be current on rent. They must also have notified their landlord of the issue and given them at least seven days to fix it.

In Texas, courts have held that there are four requirements to claim constructive eviction:⁵

1. An intention on the part of the landlord that the tenant will no longer use or enjoy the premises
2. An action taken (or intentionally neglected) by the landlord that substantially interferes with the use and enjoyment of the premises
3. The act must permanently deprive the tenant of the use and enjoyment of the premises
4. The tenant must abandon the premises within a reasonable time after the act has occurred

As these requirements make clear, only very severe issues with a rental qualify for constructive eviction. Peeling paint on the walls or bad water pressure are both annoying—but neither problem would "substantially" interfere with a tenant's ability to use the rental unit. Nor would it "permanently deprive" a tenant of their ability to live in the unit.

Tenants must move out in order to claim constructive eviction

In Texas, a tenant can only claim constructive eviction if they've actually moved out of the rental unit.⁶ Whether or not the tenant abandons the property within a reasonable amount of time is determined based on the unique circumstances of each case. If a tenant claims that the problem with their rental was so severe it was dangerous—but remained in the apartment for several more months—it might undermine their argument, for instance.

Related articles

[1] Texas Property Code Sec. 92.008

[2] Williamson v. Howard

[3] Texas Property Code Ac. 92.0081

[4] Warehouse Partners v. Gardner

[5] Stillman v. Youmans (1954)

[6] Stillman v. Youmans (1954)