Illegal Lease Clauses in Texas

Leases are binding contracts, and they control a lot of what happens during the course of a tenancy—like whether or not subletting is allowed, or the way in which a tenant should pay rent. But there are certain clauses that can never be included in a Texas lease agreement. Even if they do make their way into a signed lease, they are considered void and unenforceable.

A lease can’t waive a landlord's duty to keep the rental habitable

Under a legal concept called the implied warranty of habitability, landlords are required to keep their rental units in livable condition by making necessary repairs. It’s almost always illegal for a Texas lease to waive that guarantee of habitability. However, there are a handful of exceptions under state law:¹

• Landlords who own just one rental unit can change their duty to repair in a lease, but only if the rental didn’t have any health and safety risks when the tenant moved in—and the landlord was unaware that there would be issues that needed repair during the lease.
• Tenants can agree in a lease to pay for repairs of broken doors, windows, and screens, as long as the damage wasn’t caused by the landlord’s negligence.
• Tenants can agree in a lease to pay for damages caused by leaving windows or doors open, or from sewage backups caused by a non-flushable item such as a toy.

In any of these exceptions, the provision in the lease must be written in clear, specific language. It also must be bolded or underlined in the lease.

If a landlord intentionally tries to get out of their duty under the warranty of habitability—either orally or in a lease—then the tenant may be able to sue them for actual damages, one month’s rent plus $2,000, and attorney’s fees. Texas law assumes that a landlord is acting unintentionally, though, so tenants that notice a violation should start by giving their landlord written notice that they’re breaking the law. They should also ask their landlord to change the lease. If the landlord refuses to do so, the tenant has stronger proof that the landlord was acting intentionally if they want to take the matter to court.²

A lease can’t waive a landlord’s duty to mitigate

In Texas, if a tenant moves out early, the landlord is required to make a reasonable effort to re-rent the unit—also known as “mitigating damages.” Once the landlord has found a new tenant, the old tenant is off the hook for any remaining rent money under their original lease. A lease in Texas can never waive the landlord’s duty to mitigate damages.³

Landlords can’t prohibit tenants from calling the police

It’s illegal for a residential lease to include a provision that bans tenants from calling the police (or other emergency services) if they believe someone needs help. Similarly, it’s against the law for landlords to charge a fine—or penalize the tenant in any other way—if they call the police reasonably. Any sort of clause in the lease like this is considered void.⁴

Landlords have to provide smoke detectors

In Texas, landlords are required to provide smoke detectors for all of their rental units. They can’t get out of this responsibility by including a provision that says otherwise in the lease. A landlord also has the responsibility to inspect and repair smoke alarms, which can be waived—but only by written agreement.⁵

Tenants can’t waive their right to a trial

This one’s pretty self-explanatory. A rental agreement can never take away a tenant’s right to a trial by jury.⁶

Tenants can't be penalized for lease breaks due to domestic violence or military service

Texas law allows tenants to break their lease without their landlord’s agreement—and without paying a penalty—in two specific scenarios: they are the victim of domestic violence, or they are a member of the military who’s been deployed somewhere else. Landlords aren’t allowed to waive these rights. If they include a clause to that effect in the lease, it’s considered void.⁷

Landlords can’t waive their responsibilities under the state’s property code

Landlords can’t modify or waive their legal responsibilities (or a tenant’s ability to respond if they fail to live up to their responsibilities) for a few different areas of the landlord-tenant relationship:

• Security deposits⁸
• Security devices (such as dead bolts or re-keying a unit)⁹
• Landlord’s disclosure of ownership and management¹⁰
• Utility cutoffs¹¹

For more detailed information about a landlord’s responsibilities in each of these areas, read through the text of the law linked in each footnote.

Related articles

[1] Tex. Prop. Code Ann. § 92.006

[2] “Tenants’ Rights Handbook,” page 13, Texas Young Lawyers Association and the State Bar of Texas (2012)

[3] Tex. Prop. Code Ann § 91.006

[4] Texas Property Code Ann § 92.015

[5] Texas Property Code Ann § 92.006 (a) and Subchapter F

[6] Texas Property Code Ann § 92.006 (h)

[7] Texas Property Code Ann § 92.006 (g)

[8] Texas Property Code Ann § 92, Subchapter C

[9] Texas Property Code Ann § 92, Subchapter D

[10] Texas Property Code Ann § 92, Subchapter E

[11] Texas Property Code Ann § 92, Subchapter G