Nearly all restaurant tenants face challenges with their lease at some point. Often these challenges come in the form of needed repairs to the property caused by the landlord’s substandard maintenance of the property. The landlord may delay making necessary repairs, make inadequate repairs, or even refuse to make some repairs.
After haggling with the landlord over the repairs without result, a restaurant tenant’s next thought is often that they want to make the repairs themselves and deduct those repairs from their rent payments. In fact, many restaurant tenants feel that Texas law expressly provides for this type of remedy.
But do Texas statutes allow a tenant to make that type of deduction? As shown below, the answer is NO.
Texas Property Code
Section 92.056 of the Texas Property Code allows a tenant to deduct the costs of repairs from the tenant’s rent if:
the tenant has given the landlord notice to repair or remedy a condition by giving that notice to the person to whom or to the place where the tenant’s rent is normally paid;
the condition materially affects the physical health or safety of an ordinary tenant;
the tenant has given the landlord a subsequent written notice to repair or remedy the condition after a reasonable time to repair or remedy the condition following the notice given under Subdivision (1) or the tenant has given the notice under Subdivision (1) by sending that notice by certified mail, return receipt requested, or by registered mail;
the landlord has had a reasonable time to repair or remedy the condition after the landlord received the tenant’s notice under Subdivision (1) and, if applicable, the tenant’s subsequent notice under Subdivision (3);
the landlord has not made a diligent effort to repair or remedy the condition after the landlord received the tenant’s notice under Subdivision (1) and, if applicable, the tenant’s notice under Subdivision (3); and
the tenant was not delinquent in the payment of rent at the time any notice required by this subsection was given.
However, the question is whether this provision applies to commercial leases like a restaurant lease.
Because this statute applies only to residential leases, commercial leases, like a restaurant lease, have no similar protection.
Historically, Texas courts have held that the landlord’s duty to repair the property and tenant’s duty to pay rent are independent of each other in commercial leases. More recently, though, Texas courts have recognized an implied warranty of suitability by the landlord that the property is suitable for its intended commercial purpose. However, Texas courts are also strongly in favor of freedom of contract.
Thus, though Texas courts have recognized an implied warranty of suitability for intended purposes in commercial leases, virtually all commercial leases have a clause disclaiming any express or implied warranties not specifically provided for in the lease. Additionally, most commercial leases also have a clause placing the responsibility for certain repairs on the tenant.
As as a restaurant tenant, you must carefully examine your lease with regard to who is responsible for making repairs and the available remedies if those repairs are not made. Unlike residential tenancies, you cannot simply rely on the statute and deduct repairs from your rental payments.