If you are a Texas landlord whose property has flooded, you must disclose this to all prospective tenants. Effective January 1st 2022, Texas renters will see something new before signing a lease: for the first time, landlords are required to give prospective tenants information about a property’s flood risk. The new law applies to all rental properties, regardless of whether they’re located in a mapped floodplain.
As of Jan. 1, landlords must include in every residential lease, including renewals, a flood risk disclosure form or addendum that tells potential renters two things: if the unit is in a 100-year floodplain, and if the owner is aware of any flooding in the past five years.
What does “100-year floodplain” mean?
The term “100-year floodplain” is defined as any area of land designated as a flood hazard area with a 1% or greater chance of flooding each year by the Federal Emergency Management Agency (FEMA), under the National Flood Insurance Act of 1968. FEMA maintains a flood map on its website that is searchable by address, where a landlord can determine if a dwelling is located in a flood hazard area.
When must the flood disclosure/addendum be provided?
The Addendum Regarding Rental Flood Disclosure applies to landlords, who are required to provide the addendum to a tenant at or before the execution of the lease.
What happens if the landlord fails to provide the addendum and the dwelling floods?
Under the new law, landlords face a penalty if the unit floods and the tenant suffer a substantial loss or damage to their belongings. In that case, the tenant has the right to break the lease. The tenant may terminate the lease by giving a written notice of termination to the landlord no later than 30 days after the date the loss or damage occurred. Substantial loss means that the cost of repairing or replacing the personal property equals 50% or more of the personal property’s market value when the flooding occurred. However, the termination would 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.
Is the addendum required if the property is not in a 100-year floodplain and has never flooded?
Yes. Landlords can indicate in the addendum that they are not aware that a dwelling is located in a 100-year floodplain or that they are not aware that the dwelling has flooded at least once within the last five years. However, a landlord is not required to disclose on the addendum 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.
Do I have to provide the addendum when extending a lease or when a lease automatically renews to a month-to-month?
No. The addendum is required to be given on or before the execution of the lease. The lease extension form is an amendment to the lease, and the renewal is automatic, meaning there are no later executions of a lease in either instance. However, if there is an existing lease that renews or is extended after the effective date of the notice requirement (January 01, 2022), the landlord should provide the Addendum Regarding Rental Flood Disclosure at that time, since that would be the first time it would be given.
If a new lease is signed between the same landlord and tenants and the addendum was provided with a previous lease, does the landlord need to provide another addendum if nothing has changed?
Yes. Because a new lease is being executed, the addendum should be provided irrespective of whether the previous information has changed.
Although many housing advocates said Texas’ new disclosure will help renters make more informed decisions on where to live, others have warned that flood disclosure could drive rent prices down for flood-prone rental units. The city and landlords need to work together to address flood risk on a structural level, by constructing storm surge barriers or subsidizing efforts to elevate houses. This will ensure safe and habitable living conditions for these flood-prone properties.