Severe flooding in Texas in recent years has increased awareness about the importance of floodplains. Reflecting that concern, the 87th session of the Texas Legislature amended a law, effective January 1, 2022, about how and when residential tenants must receive notification that the rental property is at risk of flooding.
Definition of a Flood Risk
According to property Code § 92.0135, landlords must inform potential tenants that a property is located in a 100-year floodplain, as defined by FEMA (see below) unless the elevation of the property has been raised to meet federal regulations. Even if the home is located outside of a floodplain, the landlord must still indicate whether or not the property has flooded in the last five years.
Timing of Notification
Notification must be provided to potential tenants before the lease is signed. For leases signed before January 1, 2022, the lease renewal should include an addendum disclosing the property’s risk of flooding. If the landlord does not provide the mandatory notification, and if the tenant suffers “substantial loss or damage to personal property” as defined in Section 92.0135 of the Texas Property Code (see below), then the tenant is able to submit written notice to terminate the lease without penalty within thirty days of the flooding. However, the tenant is still responsible for any money such as unpaid rent owed before the flooding.
Below is the amended statute:
Effective: January 1, 2022
V.T.C.A., Property Code § 92.0135
92.0135. Notice for Dwelling Located in Floodplain
(a) In this section:
(1) “100-year floodplain” means any area of land designated as a flood hazard area with a one percent or greater chance of flooding each year by the Federal Emergency Management Agency under the National Flood Insurance Act of 1968 (42 U.S.C. Section 4001 et seq.).
(2) “Flooding” means a general or temporary condition of partial or complete inundation of a dwelling caused by:
(A) the overflow of inland or tidal waters;
(B) the unusual and rapid accumulation of runoff or surface waters from any established water source such as a river, stream, or drainage ditch; or
(C) excessive rainfall.
(b) A landlord shall provide to a tenant a written notice substantially equivalent to the following:
“(Landlord) ( ) is or ( ) is not aware that the dwelling you are renting is located in a 100-year floodplain. If neither box is checked, you should assume the dwelling is in a 100-year floodplain. Even if the dwelling is not in a 100-year floodplain, the dwelling may still be susceptible to flooding. The Federal Emergency Management Agency (FEMA) maintains a flood map on its Internet website that is searchable by address, at no cost, to determine if a dwelling is located in a flood hazard area. Most tenant insurance policies do not cover damages or loss incurred in a flood. You should seek insurance coverage that would cover losses caused by a flood.”
(c) Notwithstanding Subsection (b), a landlord is not required to disclose on the notice that the landlord is aware that a dwelling is located in a 100-year floodplain if the elevation of the dwelling is raised above the 100-year floodplain flood levels in accordance with federal regulations.
(d) If a landlord knows that flooding has damaged any portion of a dwelling at least once during the five-year period immediately preceding the effective date of the lease, the landlord shall provide a written notice to a tenant that is substantially equivalent to the following:
“(Landlord) ( ) is or ( ) is not aware that the dwelling you are renting has flooded at least once within the last five years.”
(e) The notices required by Subsections (b) and (d) must be included in a separate written document given to the tenant at or before execution of the lease.
(f) If a landlord violates this section and a tenant suffers a substantial loss or damage to the tenant's personal property as a result of flooding, the tenant may terminate the lease by giving a written notice of termination to the landlord not later than the 30th day after the date the loss or damage occurred. For purposes of this subsection, a tenant suffers a substantial loss or damage to personal property if the total cost of repairs to or replacement of the personal property is 50 percent or more of the personal property's market value on the date the flooding occurred. Termination of a lease under this subsection is effective when the tenant surrenders possession of the dwelling.
(g) Not later than the 30th day after the effective date of the termination of a lease under Subsection (f), the landlord shall refund to the tenant all rent or other amounts paid in advance under the lease for any period after the effective date of the termination of the lease.
(h) This section does not affect a tenant's liability for delinquent, unpaid rent or other sums owed to the landlord before the date the lease was terminated by the tenant under this section.
Anyone owning rental property must be diligent about keeping up with sometimes overwhelming changes and the resulting paperwork. An experienced real estate attorney helps to ease that burden substantially by keeping the client apprised of changes and helping to address them.
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