What should you do when the Tenant brings up repair issues at Trial?

Many times the tenant shows up at trial and just throws their hands saying, “I just need a little more time, I plan to pay my rent.” But sometimes you’ll get a tenant who is absolutely defiant and says something like, “I’ll pay my rent, when they fix the toilet, or fix the window, or reshingle the roof, etc.”

Most judges will shoot down these issues about repairs. Some of the better courts will address the issue of repair in their opening statement to the participants at trial. That’s when the judges will come out and give a little speech about what everybody in the gallery can expect in terms of the eviction docket.

Some judges are very straightforward about the issue of repair, and they’ll say, “Issues of repair just don’t come up. I don’t entertain them, and the Property Code doesn’t allow them.”

But not every judge is that way, and some judges very much will entertain questions about repair and will hold it against the landlord when repairs are not done.

So, what do you do if you get sideswiped at trial with a tenant that is demanding repair? One good defense to that is your lease. Your lease must address the issue of Repair obligations and the method for requesting repairs.

If you’re at trial, and you haven’t brought your case file and every document that’s related to this tenancy from the beginning, you’ve already made a mistake. Make sure that when you show up to trial, you bring all of the repair requests because you might get asked about them.

With a system in place for recording repairs and requests in your file, you can verify a completed repair to the Court. You may look at your file and say: “Your honor, there are zero.” That’s because you brought everything that pertains in this case, and not once did the tenant make a written request for repairs. If your lease requires that, you’ve got a good defense to their attack on your claim for rent.

The truth is, however, it’s not even you who should be forced to bring it up. But you should be prepared to do it.

Although the law says a certain, very limited scope of issues are handled in eviction, you have to be prepared for the case if the tenant starts to talk about the leaky roof, or the hole in the wall, or the door that’s fallen off its hinges.

Some judges are more swayed than others to reconsider an eviction. It’s important to be able to take a record of whatever was presented. And if there is a record of written requests, you should have a follow up behind that.

You should be prepared to say: “This is what we did in response.” Receipts, invoices, photographs, and email correspondence regarding the repair are all good evidence to have in the file.

There is nothing worse than having a folder full of repair requests that you’re going to get around to eventually. Or, that you plan to take care of, once you “get this guy out.”

A court might look at that and say: “I’m not going to make a ruling here until you do something.” The right thing to do would be for the tenant to file a repair and remedy lawsuit against you, but whatever the judge says, that’s the law and that’s his or her order in this case.

If you give a tenant a foothold because you haven’t done repairs, then that could be a problem. Generally speaking, a tenant’s failure to pay rent usually stops your obligation to make repairs. But that’s going to depend on a case-by-case basis.

When it’s something egregious, like a giant hole in the ceiling, you’re going to have to deal with it. Something more cosmetic – not so much.

If you’ve been diligent on any repair requests, you should be fine. And if the tenant brings up some stuff from 18 months ago, but there’s no reflection of it in the case file, or if they bring up something that you actually addressed, all that’s going to help you.

So, even though issues of repair should not come up in the eviction matter, be prepared to address them. Have your case file ready and have proof that you have completed any repair that was properly requested, even the ones that were improperly requested.

If it comes down to a matter of a cosmetic repair, be prepared to discuss it with the court. If they’re not paying rent, you don’t have an obligation to repair. But be prepared to discuss what issues have been properly raised, and what you’ve addressed in this case.

Generally speaking, failure to make a repair is not a valid defense to a tenant’s failure to pay rent. But you need to be prepared to talk about repairs.
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