Texas Rules Regarding Mold in Rental Properties

Here's what Texas landlords (and tenants) need to know about mold and the law.

By , Attorney (Boston University School of Law)

Every landlord should take mold seriously. A top environmental hazard, mold thrives in warm, damp places, and often grows quickly in basements, attics, and other parts of buildings with poor ventilation and humidity problems. Although mold is often associated with buildings in wet climates, no rental property is immune from a mold outbreak, as one can occur following an unattended spill, faulty plumbing, or even a misdirected lawn sprinkler.

If you own or manage a rental property in Texas, a mold problem could present you with costly cleanup and repair bills as well as lawsuits from tenants claiming that the mold made them ill.

Read on to learn about landlord responsibilities and tenant rights when it comes to mold in Texas rental properties.

Tenant Self-Help Strategies in Texas

Courts have recognized two common legal self-help strategies that some tenants choose to pursue following a mold outbreak in their apartment or rental home. The first, known as "rent withholding," is when tenants decide to stop paying rent, claiming the mold has made their apartment uninhabitable. (Note that regardless of what may appear in a written lease with tenants, landlords in Texas are bound by the "implied warranty of habitability," a legal doctrine that requires providing tenants with apartments in livable condition.) The second strategy, known as "repair and deduct," involves tenants taking care of mold cleanup on their own and then subtracting the cost from their rent.

See Texas Tenant Rights to 'Repair and Deduct' for more information about these strategies, including their limitations.

Landlord Liability for Mold in Texas

There is currently no federal law covering a landlord's responsibilities when it comes to mold. Also, Texas doesn't have any laws that specifically address a landlord's duties or liability when it comes to mold prevention and remediation.

However, tenants who believe they have been harmed by the presence of high concentrations of mold in their apartment can try to recover damages from their landlord in court to compensate them for their loss. If a judge or jury agrees that the landlord negligently created a mold problem or allowed one to continue at a property, the landlord could be on the hook for any harm.

For example, tenants at an upscale apartment complex in Austin, Texas, contacted a local news station to investigate after allegedly dealing with serious mold and moisture problems and an unresponsive management. The news investigation revealed several tenants with mold in their apartments who claimed to have been suffering foul smells and illness. Although the management claims it responds to mold and other repair requests promptly, the tenants are reportedly also pursuing a $5 million class-action lawsuit to recover "wrongful, misleading, and fraudulent" fees from the landlord relating to water and sewer issues, among other things.

Insurance Coverage and Mold in Texas

Texas landlords should be aware that state law prohibits insurers from making underwriting decisions based on previous mold damage or mold damage claim if either the landlord had mold remediation done at the property and got a mold remediation certification, or an independent assessor or adjustor inspected the property and determined that it doesn't contain evidence of mold damage. Texas requires notice of this law to be included in a consumer bill of rights and distributed by insurers (see 28 Texas Admin. Code § 5.9970) and has adopted rules to carry out the law (see 28 Texas Admin. Code § 21.1007).

Mold Disclosure Requirements in Texas

Texas doesn't have any statutes or regulations that require landlords to disclose high concentrations of mold in rental properties to prospective tenants or buyers. Also, while federal law requires disclosures about lead paint, it doesn't impose a similar duty on landlords when it comes to mold.

Aside from any affirmative disclosure requirement, however, if you decide to list a property for sale, you should be ready with responses to questions potential buyers might ask about plumbing, humidity, and ventilation issues in your building.

To learn more about landlord disclosure requirements in Texas, check out Texas Required Landlord Disclosures.

Deducting Mold-Related Costs from Security Deposits in Texas

If you believe a departing tenant caused a mold problem (beyond ordinary wear and tear) in an apartment or rental unit, you may wish to deduct the cost of cleaning from that tenant's security deposit. Texas law allows landlords to do this, provided they give the tenant a written explanation of the mold damage costs (along with any other claimed damages) within 30 days of the tenant's lease termination (unless the tenant owes back rent). If this amount is less than the security deposit, you must return the remainder of the deposit to the tenant along with the written documentation of damage deductions (Tex. Prop. Code Ann. § § 92.103, 92.104).

For more information about security deposits in Texas, check out Texas Security Deposit Limits and Deadlines.

Preventing Mold Problems

Because so much is at stake, it's important to try to prevent a mold problem from growing in your rental property in the first place, as well as take prompt, effective action to remove excess mold that you discover.

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