Housing guide: Legal tips for off-campus students

By Ivanka Perez     2/26/20 12:14am

With students beginning to search for off-campus housing and anticipating the housing draws at their residential colleges, the Thresher decided to ask a lawyer about common legal rights and concerns that students might face when moving off campus. We spoke with Rick McElvaney, former clinical associate professor at the University of Houston Law Center, about the legal rights that tenants have.

What does the process of applying to rent a house or apartment look like?

[Landlords often look at] your rental history, any kind of criminal history, income [to see] if you can pay for it. Many students face the problem that you’re in school, you don’t have any income, so often they make someone co-sign with you — your mom, your uncle, your brother, something like that — somebody will be responsible if you don’t pay. Anyone who co-signs is responsible and liable to the landlord to the same extent you are if you don’t pay them. If you’re accepted as a tenant, they’ll notify you and you’ll have to sign the lease. 

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What should students know about their lease before they sign?

Make sure you read the lease. There’s going to be certain things in there — anything bold or underlined — things that are legally required to be underlined and bold to be effective, generally.

[Landlords] usually require a security deposit to make sure there are no damages to the apartment when you move out, and the security deposit covers damages, not just normal wear and tear on the apartment.

You have to give the landlord notice [that you’ll be leaving at the end of the lease]. The typical notice is 30 days, but there’s often a 60 day notice in some of the leases. Whenever you communicate with the landlord, you should probably do it with some method that you can prove you did it. If I call you and say I need something or I’m moving out at the end of my lease, I can’t prove I said that. So you want to send something. The best way to do it is to send it by certified mail and you can request a receipt that they received your notice that you’re going to leave at that time.

What happens if you decide to leave before your lease ends?

If you leave early, there's a lot of problems with that. Number one, there’s going to be something in the lease called a reletting fee [which is] probably going to be about 85 percent of the month’s rent. That's just for the landlord to use to go advertise for a new tenant to replace you for the term of your lease. And you would be responsible [for the remainder of the lease] until they fill that place again. [But landlords are] required to make a mitigation of damages; [they] can’t just let it sit there. They have to be trying to fill it by advertising. 

How can tenants get their landlords to do repairs on the house or apartment?

You want to look at it when you move in, do a little inventory check sheet to see what’s banged up — [if] the window’s cracked, the door’s broken, something like that — you want to hand that in to the landlord, keep a copy of it [so] that you have it. 

If you need repairs during the term of your lease, you’re entitled to get things that materially affect your health or safety repaired. So if you don’t have any water, stuff like that, the lock breaks [or] there’s water coming through your electrical outlet — something dangerous, you can require the landlord to try to fix that. 

You have to give them notice of the problem. The best way to give them notice is through certified mail. If you do certified mail with that tracking method, the landlord will have one reasonable period, which is presumed to be seven days, to come in, look and make a diligent effort to repair that condition. If they don’t do it at the end of that reasonable time period, the landlord’s going to be liable to the tenant for failing to repair. So with the failing to repair, the tenant can terminate the lease, go to court, try to get some money awarded to them or get the judge to force the landlord to do the repair, that kind of thing. So repairs are generally the main concern for tenants. If you don't give that first notice [...] you have to wait the reasonable time, [and] if the landlord doesn’t repair, you have to give a subsequent written notice, wait another reasonable time, so you’re just doubling the amount of time the landlord has to do it if you don’t give it by certified mail. 

How do security deposits work?

When you move out, you’re entitled to get your security deposit back, unless you have any kind of damages to the apartment. 

If you gave them proper notice, the place is in good condition, the landlord’s required to give you an itemization of anything they’re going to deduct from your security deposit and return the unused portion of that security deposit to you. They have to do both of those things within 30 days. If they don’t do that, they're presumed to be in bad faith, and you can recover extra damage because they’re in bad faith. You can get up to three times the amount of your deposit back if they can’t overcome that presumption that they're in bad faith by returning that to you. But you have to give them a forwarding address of where to send these notices and the refund. If you don't give them that forwarding address, the time period [doesn’t] start until you give the [address]. 

What complications can arise with rent?

You have to read your lease about when you have to pay your rent. Mostly there’s a time that says this is the time you have to pay, usually the first or the third. If you don’t pay your rent by the first, you may be in default. There may be some provisions in leases that say you have a grace period, but you have to read your lease. 

If you don’t pay by the date it’s due, you’re going to be in default and the landlord can evict you. If you get evicted, that then goes on your rental history, and then when you apply for the next place, you’re going to have an eviction on your record, and landlords aren’t going to be really keen on renting to you with prior evictions. 

What are tenants’ rights for subletting?

That’s something you have to negotiate with the landlord from the [beginning] … Subletting by the law is not allowed unless it’s in the lease that you can do it. So if the lease is silent, the tenant cannot sublet without the consent of the landlord. Leases may [discuss] subletting, or they may have a different provision. If you’re concerned about that, you should negotiate that with the landlord right when you’re moving in. If you don’t, as a tenant, you’re going to end up on the short side of that issue. 

Are property owners allowed to come into the property anytime without the tenant’s permission?

They will be allowed to come in for any kind of emergency or emergency repair. The lease is going to specify when they can come in, usually. And the typical provision is when they give you 24 hours’ notice to come in, to look at something that needs repairs or something like that, that’s fairly typical. Some of them [have] a 72-hour notice. If you're worried about that, that’s something you can negotiate if you’re doing the lease, [but] there’s no law in the property code that says they have to give you a certain amount of notice. 

Are there any resources available for students who encounter legal problems with their landlords?

[One] resource to call is Ryan [Marquez, professor of practice] over at [UHLC]. Ryan runs the clinic over there now, which provides free help for people if you’re accepted as a client. So if you’re a student over at Rice [and] you encounter a landlord-tenant situation, you call over to the UH legal clinic program and apply for some help there. They provide free lawyers — they’re actually student lawyers — [but they are] under the supervision of Ryan. 

For more information on the Texas property code, visit https://statutes.capitol.texas.gov/?link=PR.

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