Several years ago, a new Texas law mandated flood disclosure for home buyers. Effective January 1, 2022, we now have a similar law for renters. The last legislature added a new section to the Texas Property Code: § 92.0135. But read the fine print. The law has some huge “qualifiers.”

Floodplain Disclosure Requirement

The new law requires landlords to provide tenants with special notice if their structure is located in the 100-year floodplain designated by FEMA. The notice must also inform tenants that:

• “Even if the dwelling is not in a 100-year floodplain, the dwelling may still be susceptible to flooding.”
• “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.”

Exception for Elevated Structures

However, the landlord is not required to tell tenants that the property is in the floodplain if the building has been elevated above it. Hmmmm. What about that vehicle in the parking lot?

Flood Disclosure Required…But Only If in Past 5 Years

Regardless of the floodplain status, if a building has flooded in the last five years, the landlord must disclose that to a prospective tenant. This five-year limitation, is one of the biggest flaws in the law, in my opinion. The landlord would currently not have to disclose flooding in the 1994, Allison, Ike, the May 25-27 floods in 2015, or the Tax Day and Memorial Day Floods in 2016. And come September, the landlord would not have to disclose flooding during Hurricane Harvey either.

A lady in the apartment complex pictured above flooded eight times in five years!

Written Communication, Separate From Lease Required

However, if the landlord must provide notice, he/she must do it in separate written communication at/or before the signing of the lease.

“Substantial Loss” May Trigger Termination of Lease

If the landlord fails to provide the required notice AND if the tenant suffers a “substantial loss,” the tenant may terminate the lease within 30 days after flood damage occurred. The law defines substantial as 50% or more of the value of repairs to or replacement of the renter’s personal property – on the day the damage occurred.

Lease Termination Only Allowed For 30 Days

Another “but”: termination of the lease becomes effective when the tenant moves out, not at the time of damage.

Within another 30 days after the termination of the lease, the landlord must refund “all rent or other amounts paid in advance under the lease for any period after the effective date of the termination of the lease.”

Flooding No Excuse for Unpaid Rent

The new law 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.” So, in other words, if it takes you a full month to move your flood damaged possessions out after the flood, you would owe the landlord for that month.

I am not a lawyer and do not provide legal advice, but that’s how I read the law. Regardless of whether you are a landlord or a tenant, you should read it yourself and discuss it with your lawyer if you have questions.

Posted by Bob Rehak on 4/16/22 based on a tip from a reader

1691 Days since Hurricane Harvey