A smoke alarm is the one thing in a rented home that Texas law requires to work on the first day and then allows to go silent. The statute is short, it is older than most of the alarms it governs, and in a modern house it is the whole case.
What it is. The Property Code says a smoke alarm must be “designed to detect both the visible and invisible products of combustion,” “designed with an alarm audible to a person in the bedrooms it serves,” and “tested and listed for use as a smoke alarm by Underwriters Laboratories, Inc., Factory Mutual Research Corporation, or United States Testing Company, Inc.”; on request, for a person with a hearing impairment, it must also be “capable of alerting a hearing-impaired person in the bedrooms it serves.” It may run on a battery, on house current, or on whatever a local ordinance requires (Property Code Section 92.254).
Where it goes. “A landlord shall install at least one smoke alarm in each separate bedroom in a dwelling unit.” If one room is where the tenant eats, sits and sleeps, it goes in that room; “if multiple bedrooms are served by the same corridor, at least one smoke alarm must be installed in the corridor in the immediate vicinity of the bedrooms”; and “if the dwelling unit has multiple levels, at least one smoke alarm must be located on each level.” A unit occupied before September 1, 2011 may use battery alarms that are not wired to each other, except that a replacement for an alarm that was there on the first day of occupancy must meet the building code that applied then (Section 92.255).
When it is tested. Here is the part that decides cases. “The landlord shall determine that the smoke alarm is in good working order at the beginning of the tenant’s possession by testing the smoke alarm with smoke, by operating the testing button on the smoke alarm, or by following other recommended test procedures of the manufacturer for the particular model.” After that day, “During the term of a lease or during a renewal or extension, the landlord has a duty to inspect and repair a smoke alarm, but only if the tenant gives the landlord notice of a malfunction or requests to the landlord that the smoke alarm be inspected or repaired.” The duty does not reach damage the tenant or the tenant’s family or guests caused, unless the tenant pays the repair cost in advance; a request must be answered “within a reasonable time, considering the availability of material, labor, and utilities”; and “The landlord is not obligated to provide batteries for a battery-operated smoke alarm after a tenant takes possession if the smoke alarm was in good working order at the time the tenant took possession” (Section 92.258). The statute gives the landlord one day of certainty and the tenant every day after it.
What happens when it is not. A landlord is liable under the subchapter if he “did not install a smoke alarm at the time of initial occupancy by the tenant,” or if he “does not install, inspect, or repair the smoke alarm on or before the seventh day after the date the tenant gives the landlord written notice that the tenant may exercise his remedies under this subchapter if the landlord does not comply with the request within seven days” (Section 92.259). The remedies are a court order, “a judgment against the landlord for damages suffered by the tenant because of the landlord’s violation,” a civil penalty of one month’s rent plus one hundred dollars for ignoring the seven-day notice, court costs, attorney’s fees, and the right to walk away from the lease without a court (Section 92.260). The tenant answers too: one who “removes a battery from a smoke alarm without immediately replacing it with a working battery or knowingly disconnects or intentionally damages a smoke alarm, causing it to malfunction” is liable to the landlord, unless the landlord had been asked to fix it and had not (Section 92.2611).
Who else can sue. The subchapter does not stop at the lease. “A tenant’s guest or invitee who suffers damage because of a landlord’s failure to install, inspect, or repair a smoke alarm as required by this subchapter may recover a judgment against the landlord for the damage,” and one who suffers damage because the tenant pulled the battery or disconnected the alarm “may recover a judgment against the tenant for the damage” (Section 92.2611). The cousin asleep on the couch, the friend who stayed the night, the child visiting for the weekend: the statute names them, and it names the two people who owed them the sound.
Why the sound is the case. The federal fire laboratory measured what an alarm is worth in a house furnished the way houses are now. In its flaming furniture fires, the time the study counted before conditions in the home were untenable averaged 177 seconds, under three minutes, against 1,036 seconds, about seventeen minutes, for the same measure in the 1975 tests it compares itself to; and in smoldering fires “the photo detectors sensed the smoldering fires on average 30 minutes earlier than the ionization detectors” (NIST, 2008). The physics of why the clock shrank is Flashover. The conclusion for a case is simple: in a room that is fully involved in five minutes, nothing but the alarm can give a sleeping family the three minutes, which is why a statute about a plastic disc is a statute about wrongful death.
The move: in a rental fire, ask three questions in the statute’s order. Was an alarm in every place Section 92.255 names, which the fire investigator’s photographs usually answer. Did it work on the first day, which is the move-in inspection form, the landlord’s own checklist and the testimony of whoever handed over the keys. And was there notice, because “no one told me” is the landlord’s whole defense under Section 92.258, and the answer is in the tenant’s texts, the maintenance log and the work orders. Then widen it: the subchapter is one duty, and the duties of an Invitee case, a product case against whatever started the fire, and the ordinary rule that an owner answers for a danger he had Notice of run beside it. One caution. The alarm itself is the exhibit, the plastic disc with its date of manufacture, its battery compartment and its test button, and it is the first thing a cleanup crew throws away. Spoliation is the letter that asks for it before the dumpster does.
Tex. Prop. Code § 92.254 (subsections (a), (a-1) and (b)); § 92.255 (subsections (a) and (b)); § 92.258 (subsections (a) through (f)); § 92.259 (subsections (a) and (b)); § 92.260 (subdivisions (1) through (6)); § 92.2611 (subsections (a), (c) and (f)). NIST, Questions and Answers Clarifying Findings of NIST Home Smoke Alarm Study (Feb. 25, 2008), summarizing Technical Note 1455 (2004) (Table 4 for the 177 and 1,036 seconds; the 30 minutes). This is general information, not legal advice. Figures and text as published at publication.
