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Does My Landlord Have to Mitigate Damages in Texas?

In Texas, your landlord is required make a reasonable effort to re-rent your unit if you have to move out early.

The law in Texas clearly states that a landlord has a duty to mitigate damages if a tenant leaves before the lease is up.1 In non-legal terms, that means your landlord must make a reasonable effort to re-rent the unit if you move out early. And, once it’s re-rented, you’re no longer responsible for any remaining rent payments.

Maybe you can already see the problem, though—how can you tell if your landlord is actually making an effort to find a new tenant to replace you? And what’s considered a “reasonable” effort? We dug through a bunch of Texas court cases to help answer those questions.

What counts as damage mitigation in Texas?

The court case that first established a landlord’s responsibility to mitigate damages in Texas—all the way back in 1997—says landlords are required to use “objectively reasonable efforts” to re-rent the unit once you’ve moved out.2 But it doesn’t give any additional specifics. To get a better sense of what might be considered reasonable, we can look to more recent cases. In 2012, for instance, a judge ruled that a commercial landlord in Dallas complied with his duty to mitigate by:3

  • Preparing the property for a new tenant
  • Posting signs advertising that the property was available
  • Posting the property in the appropriate multiple listing service and with online services
  • Ultimately re-renting the property four years before the original lease expired

Under Texas law, your landlord isn’t necessarily required to find a new tenant, they’re just required to make a reasonable effort to look for one. So they should be doing the same things that they normally do if they’re trying to rent out a unit—listing the property online, for instance, or prepping the unit for the next tenant by cleaning and any necessary repairs. Your landlord is never required to make a Herculean effort to find a new tenant, however. As a court in Fort Worth noted, “The policy underlying mitigation is to avoid waste rather than penalize the mitigating party for not doing enough.”4

What if I find a replacement tenant? Does my landlord legally have to accept them?

The concept of damage mitigation also addresses replacement tenants. Let’s say you’re not willing to leave everything up to your landlord—so you do some of the legwork yourself, posting your unit online and showing it to a handful of interested renters. You end up finding someone who’s willing to move in, then put them in touch with your landlord.

If your landlord refuses to consider this potential replacement—or ignores your emails or calls altogether—there’s a good chance they've failed to mitigate. In one case, a tenant informed her landlord that she could no longer afford the rent and planned to move out. She repeatedly asked the property manager for permission to find a new tenant to replace her, but he never responded. A trial court determined he'd failed to mitigate his damages.5

Texas law doesn’t require landlords to fill the unit with any tenant who’s willing to move in, however. The replacement tenant must be “suitable”6—which usually means they meet the same standards your landlord applied to your rental application. If their income is much lower than yours, for instance, or they have a terrible credit score, your landlord isn’t automatically required by law to accept them.

One other caveat: if you’ve already breached your lease by defaulting on rent payments while you were still living in the unit, then your landlord isn’t required by law to work with you to mitigate damages.7

Can my landlord get out of mitigating damages if it’s in the lease?

No. It’s illegal for a Texas landlord to try and waive this right in a written lease. Even if you signed a lease that includes a clause to that effect, it’s void.8

Who’s responsible for proving that the landlord fulfilled their duty to mitigate?

In Texas, the burden is placed on you, the tenant, to prove in court that your landlord didn’t make a reasonable effort to mitigate damages. Not only that, but you must make a case for the dollar amount of damages (which generally equals the rent payments you owe) that could have been avoided if the landlord had appropriately mitigated damages—otherwise, the court won’t side with you, even if it’s clear your landlord didn’t make an effort to re-rent the unit.9

Also, there’s a good chance that, even if the court agrees that your landlord failed to mitigate, you’ll still owe a month of rent (assuming you just moved out without presenting a replacement tenant). As a Texas court notes, “Even a landlord who makes no effort to mitigate is entitled to damages for a reasonable amount of time needed to find a new tenant and the expenses involved in reasonable mitigation efforts.”10

[1] Texas Property Code § 91.006

[2] Austin Hill Country Realty v. Palisades Plaza 948 S.W.2d 293 (Tex. 1997)

[3] White v. Harrison, 390 S.W.3d 666 (Tex. App. 2012)

[4] Hoppenstein Props. v. Schober, 329 S.W.3d 846 (Tex. App. 2010)

[5] Page v. Hulse, No. 14-06-00731-CV (Tex. App. Jul. 26, 2007)

[6] Austin Hill Country Realty v. Palisades Plaza 948 S.W.2d 293 (Tex. 1997)

[7] Mob 90 of Texas, L.P. v. Nejemie Alter, M.D., P.A., No. 13-08-173-CV (Tex. App. Apr. 16, 2009)

[8] Texas Property Code § 91.006

[9] Austin Hill Country Realty v. Palisades Plaza 948 S.W.2d 293 (Tex. 1997)

[10] Mob 90 of Texas v. Alter, No. 13-08-173-CV (Tex. App. Apr. 16, 2009)

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