Codify Expanded Warranty of Habitability and Improve Notice to Vacate Procedures

Codify Expanded Warranty of Habitability and Improve Notice to Vacate Procedures

This is the second in our Expanding Tenants’ Rights series, which explores options for legal changes that would benefit tenants and tenant organizers.

Lesson Objectives

Learners will understand the concepts of a warranty of habitability and notice to vacate procedures

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Learners will understand the current situation of these rights in Texas and the possible forms these rights could take.

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Learners will be able to connect these rights to their organizing.

Image: Adobe

Codify Expanded Warranty of Habitability

• The “warranty of habitability” is, essentially, your right to live in a habitable place – the idea that, when you sign a lease, you’re entering a contract that presumes the landlord is providing you not just the space, but a habitable shelter.
• This concept effects low-income renters the most -- landlords charging lower rents tend to seek higher profit margins through neglect of maintenance duties
• Implied in this is the right for tenants to withhold rent or fight an eviction by proving poor living conditions – if the landlord doesn’t uphold their end of the contract, the tenant shouldn’t have to either

Image: Adobe

Codify Expanded Warranty of Habitability

The current state of this right in Texas:

• There is no legally recognized warranty of habitability for tenants – tenants must meet certain requirements to live in habitable place, including paying their rent.
• Tenants do not have the right to reduce or withhold their rent before going to court; they can repair the problem and then later deduct rent, but that still requires a judge’s approval, and the burden is on the tenant to provide enough evidence and do everything right to win
• The Texas law is intentionally vague on language for requirements for habitable apartments: the only specification is a “hot water supply”, the rest is any issue that “materially affects health or safety” which leaves a lot to interpretation

Image: Adobe

Codify Expanded Warranty of Habitability

Possible Changes Based on Example Laws:

• The most direct change that Texas lawmakers could enact would be to remove any requirements for tenants to have a warranty of habitability: tenants should have the right to live in good living conditions regardless of if they’re up-to-date on rent.
• In Texas, Austin Tenants’ Council has proposed a city law that would require that a dwelling be habitable at the time a lease is executed and for its duration
• The states of Oregon and Washington both have detailed habitability laws which specifically lay out the aspects of habitability that landlords are required to maintain – this detail makes it very clear to all parties what responsibilities landlords have

Image: Adobe

The two expanded rights in today’s lesson are more about legal interpretations and the details of what landlords are required to do, so they’ve not really been the subject of organizing campaigns in the US. However, we should still highlight the court case that first established the warranty of habitability in the US, Javins v. First National Realty Corporation, and the organizing that led to it:

“It is impossible to over-emphasize the scope of the law reform triggered by Javins. The decision radically altered the relationship of landlords and tenants. Subsequent court decisions constrained the rights of landlords, increased the obligations of landlords, and expanded the legal rights and remedies available to residential tenants. It has been described as ‘arguably the most influential landlord-tenant case of the twentieth century.’”

Alan M. Weinberger, Up from Javins: A 50-Year Retrospective on the Implied Warranty of Habitability, 64 St. Louis U. L.J. (2020). Available at: https://scholarship.law.slu.edu/lj/vol64/iss3/6

“Built as Wardman Court by architect Harry Wardman between 1916 and 1918, Clifton Terrace was part of an explosive growth of residential construction. When Sidney Brown purchased Clifton Terrace for $1,475,000 in 1963, the buildings remained home to middle to upper-middle class families. Through the eyes of her tenant protagonist named Doris, [journalist Molly] McCardle paints a vivid word picture of the decline in living conditions under Brown: ‘Ever since that rat of a man bought the place in ‘63 there is no doubt that he has turned it into a slum. It makes Doris sick to think about. There was a swimming pool once, but he filled it up with dirt. After a time, her brass chandelier in the sitting room started to weep a thin stream of water and she began to eat her suppers in front of the open stove on cold nights. When the men came to board up her balcony on account of safety regulations, all she could do was sit on her bed and cry.”

Image: Wikimedia

Alan M. Weinberger, Up from Javins: A 50-Year Retrospective on the Implied Warranty of Habitability, 64 St. Louis U. L.J. (2020). Available at: https://scholarship.law.slu.edu/lj/vol64/iss3/6

“By the mid-1960’s, the capital was a majority-black city. Clifton Terrace became a symbol of the frustration of inner-city blacks living in substandard housing owned by whites. Clifton Terrace tenants consulted [attorney] Gene Fleming for advice in 1966. Fleming assisted them in organizing a rent strike. Brown responded by a public shaming of the striking tenants: ‘Mr. Brown sent men marching into each of Clifton Terrace’s three buildings and posted up a sign on the rental office doors. It was a list of everyone in the whole complex who had not paid their rent, those on strike as well as those flat-out broke. It listed their names, their apartment number and the amount of rent they owed right down to the last penny in neat columns.’ Brown’s intimidation tactics were successful. Of the twenty-nine Clifton Terrace tenants who began the rent strike, only four would remain on strike. On April 8, 1966, Sidney Brown filed suit seeking possession of apartments occupied by six striking Clifton Terrace tenants who were still in arrears in the payment of rent.”

Image: DC Public Library Special Collections

Alan M. Weinberger, Up from Javins: A 50-Year Retrospective on the Implied Warranty of Habitability, 64 St. Louis U. L.J. (2020). Available at: https://scholarship.law.slu.edu/lj/vol64/iss3/6

Improve Notice to Vacate Procedures

• A “notice to vacate” (NTV) is the notice that landlords mail to you, hand to you, or post on your door when beginning eviction proceedings.
• NTVs are often confusing, and this is beneficial to landlords, who have every incentive to keep them confusing – if landlords want a tenant gone and the tenant believes the NTV is an eviction notice, they might leave on their own, saving the landlord time and money
• NTVs should give the tenant plenty of time to prepare to leave or fight eviction, should include information like their rights and the stated reason for eviction, and should clearly say “not an eviction” to avoid misleading tenants

Image: Adobe

Improve Notice to Vacate Procedures

Current State of this Right in Texas:

• NTVs only give 3 days notice
• And this can be reduced in the lease, so this is a functionally useless requirement
• The only legal requirements are about how it’s given, not about what it says
• Texas NTVs are not at all clear to renters and don’t have to give a reason for the eviction
• Many Texas renters often mistake NTVs for evictions and leave without fighting

Image: Adobe

Improve Notice to Vacate Procedures

Possible Changes Based on Example Laws:

• During the pandemic, Austin City Council adopted an emergency ordinance that required 60-day notice and included clarifying text that must be included on all NTVs
• Texas can look to states with similar politics – like Tennessee and Nebraska – and see that these states have much more tenant-friendly laws on NTVs. These states’ laws give tenants more notice time and require a reason for eviction on NTVs.
• Finally, Austin Tenants’ Council has proposed 3 improvements to the NTV procedures:
• Minimum two weeks notice
• Require a stated reason for eviction

• Require clear language stating “This is not an eviction”

Image: KXAN

References

https://scholarship.law.slu.edu/lj/vol64/iss3/6

https://oregonlawhelp.org/files/CCDACC15-944D-570E-7F1F-7BBF3DEC0018/attachments/786A1709-F2B5-4FAC-80A8-4BB48DD84348/repair-guide-for-tenants-fillable.pdf

https://caretaker.com/learn/habitability/implied-warranty-of-habitability-in-washington