Landlords and Tenants Guide

SPECIAL REPORT

REVISED SEPTEMBER 2016

866

LANDLORDS

G U I D E

JUDON FAMBROUGH

TENANTS

AND

Addendum with updates added March 2019

E .V. “RUSTY” ADAMS III

ATTORNEYS AT LAW

Judon Fambrough

Attorney at Law

Landlords and Tenants Guide

Revised September 2016

Disclaimer

Information contained in this document is current as of September 2016.

An addendum has been included to address changes through March 2019.

Portions may now be out of date because of changes in laws, rules,

market conditions, or other factors.

Real Estate Center publications are for information only. They are not a

substitute for legal, tax, or other professional advice.

Addendum by E.V. "Rusty" Adams III

Attorney at Law

Foreword

Residential Landlord's Duty to Repair

Retaliation

Residential Landlord's Duty to Return Security Deposits

Rental Application

Residential Landlord's Duty to Install, Inspect, and Repair Smoke Alarms

and Fire Extinguishers

Residential Landlord's Liability for Utility Cutoffs and Interruptions

Miscellaneous Landlord-Tenant Topics

Charging Late Fees

Providing Emergency Phone Number

Guarantor's Liability When Lease Renewed

Advance Notices for Terminating Leases

Termination of Leases for Criminal Conviction

Tenants' Lien

Subletting and Finding Replacement Tenants

Tenants' Insurance

Tenants' Right to Protest Property Taxes

Tenants' Right to Summon Police

Tenants' Right to Terminate Lease for Family Violence

Tenants' Right to Terminate Lease for Sexual Offenses

Lease Term Following Natural Disaster

Tenants' Right to Terminate Lease for Military Service

Landlord's Duty to Provide Copy of Lease

Landlord's Liability for Leasing to Person with Criminal Record

Tenants' Remedies When Certicate of Occupancy Revoked

Notice of Utility Disconnection to Nonsubmetered Master Metered Multifamily Property

General Provisions Relating to the Residential Landlord-Tenant Relationship

Landlord's Agents and Agent's Liability

Bad Faith and Harassment

Waivers and Venue

Cash Rental Payments

Occupancy Limits for Adults

Landlord's Duty to Mitigate Damages

Notices Sent to Tenant's Primary Residence

Policy Changes by Landlord

Care of Deceased Tenant's Personal Property and Security Deposit

Removal of Property and Lockouts

Residential Landlord's Duty to Install and Maintain Security Devices

Residential Landlord's Duty to Disclose Ownership and Management of Rental Unit

Public Nuisances at Multiunit Residential Property

Contents

iii

Common Nuisances Occurring at Multiunit Residential Property

Residential Landlord's Lien

Landlord's Right to Evict Tenants

Procedure and Jurisdiction for Evictions

Writ of Possession

Appealing an Eviction

Pauper’s Affidavit

Payment of Rent During an Appeal for Eviction

Issuing a Writ of Possession

Executing the Writ of Possession

Removal and Care of Personal Property

Warehouseman’s Lien

Covenant for Quiet Enjoyment and Constructive Eviction

Residential Rental Locators

Telecommunications

Swimming Pool Enclosures

Pool Yard Enclosures with Relevant Denitions

Ascertaining the Criminal History of Employees of Residential Dwelling Projects

with Relevant Denitions

Towing Vehicles from Parking Lots and Public Roadways

Rules for Towing Vehicles from Multiunit Complexes' Parking Lots

with Relevant Denitions

Federal and State Statutes Affecting Residential and Commercial Tenancies

Soldiers' and Sailors' Civil Relief Act of 1940

Fair Housing Amendments of 1988

Pesticide Application

Warning of Lead-based Paint or Hazards

Statute of Frauds

Contract Addendum for Disclosure of Information on Lead-based Paint Hazards

Commercial Tenancies

Submetering Commercial Property

Landlord’s Lien on Commercial Buildings

Self-Service Storage Facility Liens

Mediation with Sample Agreement

Glossary

Addendum

This report is for information only; it is not a substitute for legal counsel.

107

112

113

116

100

118

Contents

120

Income-producing property plays a major role in

Texas real estate. Central to much of this property is

the landlord-tenant relationship. Signicant legisla-

tive changes have been made in recent years.

One basic rule of English common law was that

a tenant’s duty to pay rent was independent of the

landlord’s duty to repair without an agreement or

statute to the contrary. The lease was regarded as a

conveyance in land, subject to the doctrine of caveat

emptor (“let the buyer beware”). The landlord was

required to deliver only the right of possession. The

tenant, in return, was required to pay rent as long

as possession was retained, even if the building was

destroyed or became uninhabitable.

Texas courts and legislators have attempted to

soften the harshness of this rule. The rst major

relief came in 1978, when the Texas Supreme Court

established an implied warranty of habitability on

residential landlords (Kamarath v. Bennett, 568 S.W.

2d 658 [Tex. 1978]).

In 1979, Texas legislation effectively extinguished

the implied warranty by enacting Subchapter B of

Section 92 of the Texas Property Code. As stated in

that subchapter, the law replaced existing common

law (case law) and other statutory law, warranties

and duties of residential landlords for maintenance

and repair of rental units.

More changes were enacted in 1993. Most signi-

cant was the replacement of subchapter D with new

provisions requiring the installation of certain secu-

rity devices in residential units. The failure of the

landlord to comply allows the tenant to unilaterally

terminate the lease. Also, another new law permits

employers in multiunit complexes to inquire about

Foreword

iii

and verify the criminal history of current and pro-

spective employees.

In 1995, new laws were added concerning the

licensing of residential rental locators, the abate-

ment of nuisances at multiunit residential property,

the installation of telecommunications equipment

on rental property and required educational courses

dealing with landlord-tenant issues. In 1997, the

75th Legislature required landlords to mitigate

damages when a tenant moves out early. Also, the

legislators raised the maximum amount for the

repair-and-deduct statutes to $500 or one month's

rent, whichever is greater.

This report discusses the various subchapters of

the Texas Property Code, the Texas Local Govern-

ment Code, the Texas Health and Safety Code, the

Texas Human Resources Code, the Texas Govern-

ment Code, the Texas Civil Practices and Remedies

Code and also Articles 6701g-2 and 6573(a) of the

Texas Civil Statutes as amended, as each applies to

residential and commercial tenancies.

Because of the number of recent amendments,

many sections lack case law to construe and clarify

meaning and application. This is particularly true of

laws dealing with security devices, pool yard en-

closures and towing vehicles. To make the statutes

more understandable, the language has been changed

to lay terms when possible.

Landlords and tenants alike should be aware of

the current statutes. For landlords, the awareness is

critical; knowledge helps avoid liability. Tenants, on

the other hand, need to know the law so they can

preserve, protect and claim their rights and remedies.

Residential Landlord’s Duty to Repair or Close Leasehold

Subchapter B, Chapter 92, Texas Property Code

Subchapter B is signicant to residential landlords

and tenants. Under the former implied warranty of

habitability, the landlord was obligated to make the

premises habitable throughout the lease term. The

duty arose automatically without the tenant taking

any initiative. However, under the present legislative

standard, the tenant must inform the landlord of a

problem before the repair obligation arises.

Each section of Subchapter B is discussed in the

order that it appears in the statutes, beginning with

Section 92.051 and ending with Section 92.061. The

focus is primarily on what the landlord must repair,

what the tenant must do to invoke the landlord’s

duty to repair and what the tenant’s options are if

the landlord fails to repair.

The statutes addressing landlord retaliation, Sec-

tions 92.057 and 92.059, have been moved to Sub-

chapter H, Sections 92.331 through 92.334, effective

January 1, 1996.

Which leases are affected?

The subchapter affects all residential leases execut-

ed, entered, renewed or extended on or after Septem-

ber 1, 1979 (Section 92.051). Obviously, amendments

added after 1979 became effective as specied by the

enabling legislation.

Which conditions must landlords repair?

Section 92.052[b] sets the basic premise for the

subchapter. The landlord must make a diligent effort

to repair or remedy any condition when:

• the tenant has specied the condition in a

notice to the person who collects rent or to the

place where the rent is normally paid,

• the tenant is current in rent payments when

the notice is given, and

• the condition:

1) materially affects the health or safety of an

ordinary tenant or

2) arises from the landlord's failure to provide

and maintain in good operating condition

a device to supply hot water of a minimum

temperature of 120 degrees Fahrenheit.

The notice must be in writing only if the written

lease so requires. As a practical matter, all notices

should be in writing and either delivered in person

or sent by certied mail, return receipt requested.

Otherwise, proving that notice was served may be

difficult. If delivered, some verication such as a

witness or a written acknowledgment from the re-

cipient is needed.

How do tenants know who to contact for

repairs?

Landlords who have on-site management or a

superintendent’s office for residential rental prop-

erty must provide a 24-hour telephone number for

reporting emergencies on the leased premises that

materially affect the physical health or safety of an

ordinary tenant. The number must be posted outside

the management or superintendent’s office (Sections

92.020[a]&[b]).

What about landlords in other situations?

Landlords who do not have on-site management

or a superintendent’s office must provide tenants

a telephone number for reporting emergencies on

the leased premises that materially affect the physi-

cal health or safety of an ordinary tenant (Section

92.020[d]. The manner by which the information

must be provided is not specied in the statute.

Are there any exceptions to the rules?

Yes. The rules do not apply to or affect a local ordi-

nance governing a landlord’s obligation to provide a

24-hour emergency contact number if the ordinance

was adopted before Jan. 1, 2008, and if it conforms

with or is amended to conform with the require-

ments of the statute (Section 92.020[c]).

Which conditions need not be repaired by

the landlord?

Unless the problem is caused by normal wear and

tear, the landlord has no duty to repair conditions

caused by:

• the tenant

• a lawful occupant of the apartment

• a member of the tenant’s family

• a tenant’s guest or invitee

Finally, the landlord is not required to furnish

utilities from a utility company if the utility lines

are not reasonably available. The landlord is not re-

quired to furnish security guards (Section 92.052[b]).

The phrase normal wear and tear is dened as

“deterioration that results from the intended use of

a dwelling . . . but the term does not include dete-

rioration that results from negligence, carelessness,

accident or abuse of the premises, equipment or

chattels by the tenant, by a member of the tenant’s

household, a guest or invitee of the tenant (Texas

Property Code, Section 92.001[4]).

Who has the burden of proof?

Normally, in a judicial proceeding, the tenant

must prove that the landlord failed to repair or rem-

edy a condition that materially affects the health or

safety of an ordinary tenant (Section 92.053). How-

ever, the landlord must assume this burden if the

tenant can show that

• reasonable time has elapsed since the initial

notice to repair was given,

• a subsequent written notice was given to the

landlord demanding an explanation for the de-

lay, and

• the landlord failed to make the repairs or give

a written explanation for the delay within

ve days after the second demand notice was

received.

The major problems are determining what consti-

tutes an unreasonable delay and what constitutes

a nondiligent effort to repair. Some guidelines are

provided later in Section 92.056. Furthermore, if

repairs are not made by the landlord, the tenant has

three options, but only one involves judicial action.

Consequently, shifting the burden of proof is impor-

tant only to tenants who seek the judicial remedies

discussed later.

How does casualty loss affect repair

obligations?

The landlord has no duty to repair following a ca-

sualty loss such as that caused by re, smoke, hail or

explosions until the landlord receives the proceeds

for an insured casualty (Section 92.054).

Until the repairs are actually completed, however,

either the landlord or tenant may terminate the lease

by giving to the other a written notice whenever the

casualty loss

• rendered the unit totally unlivable and

• was not caused by the negligence or fault of the

tenant, a member of the tenant’s family, a guest

or invitee of the tenant.

If the lease is so terminated, the tenant is entitled

to a pro rata refund of rent from the date the tenant

moves out and to a refund of any security deposit

required by law.

If the unit is rendered partially unusable for resi-

dential purposes from a casualty loss not caused by

the negligence or fault of the tenant, a member of

the tenant’s family, a guest or invitee of the tenant,

the tenant is entitled to a proportionate rent reduc-

tion upon a judgment of a county or district court.

Although this alternative entails a judicial proceed-

ing, in practice it rarely occurs. However, the land-

lord and tenant may agree to nonjudicial, proportion-

ate rent reduction measures in the lease.

When may the landlord close a unit?

Basically, the landlord has the right to close a unit

by giving written notices announcing that the land-

lord is terminating the tenancy as soon as legally

possible, and, after the tenant moves, the landlord

will either demolish the unit or no longer use it for

residential purposes. Notices must be sent by certi-

ed mail, return receipt requested, to the tenant,

to the local health officer and to the local building

inspector (Section 92.055).

After the tenant leaves, the landlord may not allow

reoccupancy or reconnection of utilities by a sepa-

rate meter within six months. Likewise, neither the

local health officer or building inspector may allow

reoccupancy or utility service by a separate meter

to the rental unit until all known conditions that

materially affect the physical health or safety of an

ordinary tenant have been repaired or remedied.

If the landlord gives the tenant the closing notice

before the tenant gives the landlord a repair notice,

the landlord has no liability to the tenant. If the

tenant’s notice to repair precedes the landlord’s clos-

ing notice, the tenant’s monetary recoveries include:

• actual and reasonable expenses;

• pro rata refund of any unused, prepaid rent;

• return of the security deposit less any proper

deductions;

• one month’s rent plus $500;

• actual damages; and

• court costs and attorneys' fees, excluding any

attorneys' fees for personal injury.

The statutes interject two important qualications

to this provision. First, the rst three recoveries

apply only if the tenant moves out before the end of

the lease term. Second, the closing of one or more

units is permitted without closing the entire apart-

ment complex.

Sections 92.056 and 92.0561 were amended by the

75th Texas Legislature. Both sections apply to resi-

dential leases entered or renewed on or after January

1, 1998.

It is the author's opinion that by complying with

the procedures outlined below, the tenant fullls

both the old and new statutory requirements for

repairing and deducting from rent. However, the

most the tenant may deduct is one month's rent for

unrenewed leases entered before January 1, 1998.

At what point does the landlord become

liable for not doing repairs after being

notied by the tenant?

Section 92.056(b) lists several requirements for cre-

ating landlord liability for nonrepairs, based on how

the tenant gave the notice to the landlord.

If the tenant noties the landlord in person or in

writing, the landlord becomes liable when all of the

following are true.

• The notice is given to the person to whom the

tenant normally gives rent payments to repair

or remedy a condition.

• The condition materially affects the physical

health or safety of an ordinary tenant.

• The tenant gives a second notice in writing to

repair or remedy the condition after a reason-

able time elapses.

• The landlord has had a reasonable time to re-

pair or remedy the condition after receiving the

second notice.

• The landlord does not make a diligent effort to

repair or remedy the condition after receiving

the second notice.

• The tenant was not delinquent in rent at

the time the notice(s) were given (Section

92.056[a]&[b]).

If the tenant initially noties the landlord by certi-

ed or registered mail, the landlord becomes liable

when all of the following are true.

• The tenant noties the landlord to repair or

remedy a condition by certied mail, return

receipt requested or by registered mail. The

notice is sent to the person to whom the tenant

normally gives rent payments.

• The condition materially affects the physical

health or safety of an ordinary tenant.

• The landlord has had a reasonable time to re-

pair or remedy the condition after receiving the

notice (by certied or registered mail).

• The landlord has not made a diligent effort to

repair or remedy the condition after receiving

the notice (by certied or registered mail).

• The tenant was not delinquent in rent at

the time the notice was given (Section

92.056[a]&[b]).

What is considered a reasonable time for

making repairs?

According to Section 92.056(d), a rebuttable pre-

sumption exists that seven days is a reasonable time

to make repairs. Factors rebutting the presumption

include the:

• date the landlord receives notice,

• severity and nature of the condition, and

• the reasonable availability of materials and

labor, and also the availability of utilities from

the utility company.

When is the notice received for purposes of

calculating the seven days?

Notice is deemed received by the landlord when

the landlord's agent or employee physically receives

it or when the U.S. Postal Service attempts delivery

(Section 92.056[c]).

If the six factors are met, are there

exceptions under which the landlord still

does not have to make repairs?

The landlord still has no obligation to repair or

remedy a condition when:

• the condition was caused by the tenant or

guests (Section 92.052[b]), or

• the landlord is awaiting the proceeds from an

insured casualty loss (Section 92.054).

What alternatives does the tenant have if

the six conditions are met, creating landlord

liability, and none of the exceptions apply?

A tenant to whom a landlord is liable may, accord-

ing to Section 92.056(e):

• terminate the lease,

• repair or remedy the condition according to Sec-

tion 92.0561 and deduct the cost of the repair

from the rent without the necessity of judicial

action, or

• obtain judicial remedies as specied in Section

92.0653.

What happens if the tenant elects to termi-

nate the lease?

If the tenant elects to terminate the lease, the ten-

ant is entitled to:

• a pro rata refund of rent from the date of ter-

mination or the date the tenant moves out,

whichever is later, and

• deduct the tenant's security deposit from the

tenant's rent without the necessity of a lawsuit

or obtaining a refund of the tenant's security

according to law (Section 92.056[f]).

The tenant is not entitled to pursue any of the

other remedies specied in Section 92.056(e) if the

tenant elects to terminate the lease.

What is the repair-and-deduct option? What

are its qualications and limits?

The repair-and-deduct option allows the tenant to

arrange and pay for repairs, then deduct the amount

from rent payments.

The statute qualies this restriction to some de-

gree. First, the deductions for repairs for any month

may not exceed one month's rent or $500, whichever

is greater. However, if the tenant’s rent is subsidized

in whole or in part by a governmental agency, the de-

duction limitation means the fair market rent for the

dwelling and not the amount of monthly rent that

the tenant actually pays. The government agency

subsidizing the rent makes the determination.

Otherwise, fair market rent is a reasonable amount

under the circumstances.

Second, the repair person or supplier cannot place

a lien on the property for the materials or services

contracted by the tenant under this remedy. The

landlord is not personally liable for the repairs.

And nally, the statute places the following re-

strictions on the option.

• Unless there is an agreement to the contrary,

the tenant, the tenant’s immediate family, the

tenant’s employer or employee of a company in

which the tenant owns an interest cannot make

the repairs.

• The repairs must be made by a company,

contractor or repair person listed in the Yel-

low Pages or business section of the telephone

directory. Alternatively, they may appear in the

classied section of a local or county newspa-

per or in the newspaper in an adjacent county

at the time the tenant gives the landlord notice

of having selected the repair-and-deduct option.

• No repairs may be made to the foundation or

load-bearing structure of a building containing

two or more dwelling units.

• All repairs must be made in compliance with

building codes, including building permits

when required. (It is unclear whether the cost

of the permits is included as part of the repair

costs.)

• After the repairs are made, the tenant must

furnish the landlord a copy of the repair bill and

the receipt for payment with the balance of the

next month’s rent (Section 92.0561).

Must the landlord inform the tenant of

these remedies?

Yes. Effective Jan. 1, 2008, all leases must contain

language that is underlined or placed in bold print

informing the tenant of the remedies available under

Sections 92.056 and 92.0561 (Section 92.056[g]).

The Real Estate Center at Texas A&M University

reproduced those remedies as a contractal addendum

on its website at recenter.tamu.edu/pdf/1837.pdf.

When can the tenant begin to make repairs?

This depends on the situation.

• When the condition involves the backup or

overow or raw sewage or the ooding from

broken pipes or natural drainage inside the

dwelling, the tenant may remedy the situation

immediately after giving notice. There is no

waiting period.

• When the condition involves the breach of an

expressed or implied lease agreement to furnish

potable water to the tenant's dwelling and the

water service has ceased totally, the tenant

must wait three days before making the repairs.

• When the condition involves an expressed or

implied lease agreement to furnish heating or

cooling equipment; the equipment is producing

inadequate heat or cooled air; and the landlord

has been notied in writing by the appropriate

local housing, building or health officials or

other official having jurisdiction that the lack

of heat or cooling materially affects the health

or safety of an ordinary tenant; then the tenant

must wait three days before making repairs.

• After the landlord has received written

notication from the appropriate local housing,

building or health official or other official

having jurisdiction that some other condition

exists that materially affects the health or

safety of an ordinary tenant, the tenant must

wait seven days before making repairs (Sections

92.0561[d]&[f]).

In some situations, a local housing, building or

health official must verify certain conditions materi-

ally affect the health or safety of an ordinary tenant

before repairs can begin.

This verication is not required when the condi-

tion involves raw sewage, ooding from broken

pipes, natural drainage inside the dwelling, potable

water or water service, or failure of the heating or

air conditioning system. Otherwise, verication is

needed before proceeding under the repair-and-de-

duct option.

How may the landlord delay the tenant’s

option to repair and deduct?

The tenant’s option to repair and deduct may be

delayed by the landlord’s delivering the tenant a

signed and sworn affidavit (Section 92.0562). The

Affidavit for Delay, as it is called, must be delivered

before the tenant contracts for the repairs. The af-

davit may be executed by either the landlord or an

authorized agent. It must be delivered to the tenant

by one of three methods:

• in person,

• by certied mail, return receipt requested, or

• left in a conspicuous place at the tenant's

dwelling if notice of delivery in such a manner

is authorized in the written lease.

The affidavit must be submitted in good faith and

summarize the reasons for the delay. The affidavit

must contain a sworn statement that diligent efforts

have been and are being made to effect repairs. The

dates, names, addresses and telephone numbers of

the contacted contractors, suppliers and repair per-

sons must be included.

The affidavit will delay repairs only in two circum-

stances. If neither circumstance exists, the affidavit

is ineffective. First, the inability to obtain necessary

parts will delay the landlord’s repair obligation 15

days. Second, the general shortage of labor or materi-

als following a natural disaster such as a hurricane,

tornado, ood, extended freeze or widespread wind-

storm will delay the landlord’s obligation 30 days.

The landlord can le repeated affidavits as long as

the total delay does not exceed six months.

An Affidavit for Delay is effective only when

necessary parts are unavailable or there is a short-

age of labor or materials following a natural disaster.

However, no affidavit is required and no repairs are

necessary when the landlord is waiting for insurance

proceeds following a casualty loss mentioned in Sec-

tion 92.054.

The law presumes that the landlord acted in good

faith and with continued due diligence for the rst

affidavit. However, this presumption may be re-

futed or disproven by the tenant. After that, there is

a presumption to the contrary. If the landlord les

a false affidavit or does not act with due diligence,

the landlord is liable for all the judicial remedies

described later except that the civil penalties shall be

one month’s rent plus $1,000.

If the landlord repairs the condition or delivers

an affidavit for delay after the tenant has contacted

the repair person but before the repair person begins

work, the landlord is liable for the repair person’s

trip charge. If the landlord does not reimburse the

tenant for the charge, the tenant may deduct the

charge from rent as if it were a repair cost.

How does change of landlords affect

remedies?

The tenant’s choice of remedies may be affected by

an intervening change of ownership. If the tenant has

opted to terminate the lease, an intervening change

of ownership after proper notices have been given to

the former landlord does not necessitate new no-

tices to be given to the new landlord. Likewise, the

tenant’s right to repair and deduct for sewage back-

up, inside ooding or cutoff of potable water is not

affected, and new notices are not required. However,

new notices must be given for any other repair-and-

deduct situation if the:

• tenant has not contracted for the repairs,

• landlord acquires title without knowledge of

the tenant’s notices to the prior landlord, and

• acquiring landlord has notied the tenant of the

new landlord’s name and address or an agent’s

name and address.

If the tenant has chosen the third option (judicial

remedies), any judicial remedy shall be limited to re-

covery against the former landlord if an intervening

change of ownership occurs. By issuing new notices

to the acquiring landlord, however, the new landlord

becomes liable for the judicial remedies specied

in Section 92.0563. If, however, the new landlord

violates Section 92.0562, the new landlord is liable

to the tenant for a civil penalty of one month’s rent

plus $2,000, actual damages and attorneys' fees.

Exactly how a new landlord can violate Section

92.0562 is unclear. However, the new landlord’s

liability is twice that of the former landlord’s for the

same act.

What judicial remedies are available to

tenants?

Section 92.0563 lists any and all of the following

ve possible judicial remedies a tenant may pursue

when the judicial option is chosen:

• A court order directing the landlord to take

reasonable steps to repair the condition.

• A court order reducing the tenant’s rent ac-

cording to the reduced rental value resulting

from the condition. The reduction is gured

from the time the rst repair notice was given

until the condition is repaired.

• A judgment for one month’s rent plus $500.

• A judgment for the amount of the tenant’s

actual damages.

• Court costs and attorneys' fees excluding those

relating to recoveries for personal injury.

The tenant’s lawsuit may be led in the justice

(JP), the county or the district courts, depending on

the amount of the tenant’s claim.

If the suit is led in the justice court (JP), the jus-

tice court must conduct a hearing on the request be-

tween the 6th and tenth day after the service of the

citation on the landlord. If the justice nds in favor

of the tenant, the court may not award a judgment,

including the costs of repair, that exceeds $10,000,

excluding interest and court costs (92.0563[d] and [e]).

Can the order from the justice court be

appealed? What effect does an appeal have

on the order by the justice court?

The judgment of the justice court may be appealed

to the county court. The appeal takes precedence in

the county court. The appeal may be heard any time

after eight days after the transcript is led. An appeal

by the owner of the property perfects the appeal and

stays the effect of the judgment by the justice court

without the need to post an appeal bond (Section

92.0563[f]).

Can tenants retaliate?

The tenant is prohibited from withholding rents,

causing repairs to be performed or deducting repair

costs from rent in violation of Subchapter B (Section

92.058). If the tenant breaches this rule, the landlord

may recover actual damages. However, the penalties

are more severe if the tenant undertakes any or all

three of the same acts, in bad faith, after the landlord

has informed the tenant in writing that the acts are

in breach of the subchapter and stated the penalties

for the breach.

Under these circumstances, the landlord may

recover a civil penalty of one month’s rent plus $500

and reasonable attorneys' fees. However, the landlord

must prove by clear and convincing evidence that

the

• written notice was given to the tenant in per-

son, by mail or delivered to the premises and

• the tenant acted in bad faith.

The tenant cannot take matters in hand but must

follow precisely the procedures prescribed in Sub-

chapter B. If the steps are not followed exactly, the

tenant, not the landlord, will be liable.

Where does tenant send or deliver notices?

A managing agent, leasing agent or resident

manager is the agent of the landlord for purposes of

notice of repair for Section 92.060 or other commu-

nication required or permitted by the subchapter.

It is unclear whether Section 92.060 contradicts

Section 92.052 discussed earlier. Section 92.052

requires the tenant to give notice of a condition to

the person to whom or to the place rent is normally

paid. Such a person or place may not be the man-

aging agent, leasing agent or resident manager as

specied in Section 92.060. If they are not the same

person or place, the tenant should send two notices,

one in compliance with each section.

The duties of a landlord and the remedies of a tenant

under Section 92.061 are in lieu of existing case law or

other statutory law, warranties and duties of landlords

for maintenance, repair, security, habitability and

nonretaliation and remedies of tenant for a violation

of those warranties and duties. In other words, Sub-

chapter B represents the tenant’s sole legal means to

prompt a residential landlord to make repairs and the

sole legal means for a judicial recovery in the event of

the landlord’s noncompliance.

Are waivers permitted?

Discussion of a residential landlord’s duty to repair

is not complete without addressing waivers. Basical-

ly, the landlord is prohibited from waiving any duty

to repair the premises except in four instances. Three

are found in Subchapter A of Chapter 92 of the Texas

Property Code, the other in Subchapter B.

Some general facts about the landlord’s duty to

repair will help explain the statutes. The law im-

poses two elements on the landlord. The rst is to

make the repairs; the second is to make repairs at

the landlord’s expense. The statutes place the two

elements in separate categories.

The rst category permits waivers when the ten-

ant makes the repairs at the landlord’s expense. This

is somewhat akin to the repair-and-deduct option

but without the limitations and restrictions of one

month’s rent. The second category permits waivers

when the tenant makes the repairs at the tenant’s

expense. Obviously, the second category is nearly

opposite of the rst. Hence, the formalities for this

type of waiver are quite extensive.

When may the tenant make repairs at the

landlord’s expense?

Two waivers apply (Sections 92.006[d] and

92.0561[g]). The landlord and tenant may agree for

the tenant to repair, at the landlord’s expense, any

condition that materially affects the physical health

or safety of the ordinary tenant (Section 92.006[d]).

Also, the landlord and tenant may mutually agree for

the tenant to repair, at the landlord’s expense, any

condition of the dwelling regardless of whether it

materially affects the health or safety of an ordinary

tenant (Section 92.0561[g]).

Together, the two sections permit the landlord and

tenant to agree for the tenant to repair or remedy any

condition just as long as it is at the landlord’s ex-

pense. The waivers are not required to be in writing.

In fact, the statutes require no formalities except the

existence of the agreement.

Because of the monetary restrictions (one month’s

rent) and the subject matter limitation (only those

things that affect the physical health or safety of an

ordinary tenant) the tenant may wish to pursue the

second waiver (Section 92.0561[g]) to make needed

repairs around the dwelling that do not fall within

the coverage of Subchapter B.

When may tenants pay for repairs?

Two waivers apply in the second, more restric-

tive, category (Sections 92.006[e] and 92.006[f]). The

landlord and tenant may agree for the tenant to re-

pair, at the tenant’s expense (Section 92.006[e]), any

condition that materially affects the physical health

or safety of an ordinary tenant if the following eight

conditions are met in the lease:

• The residential lease must have been entered

into or renewed after August 31, 1989.

• At the beginning of the lease term, the landlord

must own only one rental dwelling.

• At the beginning of the lease term, the dwell-

ing must be free from any condition that would

materially affect the physical health or safety of

an ordinary tenant.

• At the beginning of the lease term, the landlord

must have no reason to believe any condition

that materially affects the physical health or

safety of an ordinary tenant is likely to occur or

recur during the tenant’s lease term or during a

renewal or extension.

• The lease must be in writing.

• The agreement for the tenant’s repairs must be

either underlined or printed in boldface in the

lease or in an attached, written addition (adden-

dum).

• The agreement must be specic and clear (un-

ambiguous).

• The agreement must be made knowingly, vol-

untarily and for consideration (money).

It is unclear when or why a tenant would agree to

such an arrangement unless the consideration was

rent reduction equal to the repair costs or a reim-

bursement equal to the cost of a third party making

the repairs.

The landlord and tenant may agree (Section

92.006[f]) that the tenant has the duty to pay for

repairs for

• damage from wastewater stoppages caused by

foreign or improper objects in lines serving the

rental unit exclusively;

• damage to doors, windows or screens; and

• damage from windows or doors left open.

How are Section 92.006(f) waivers

implemented?

To implement this waiver, the following eight

conditions must be met:

• The residential lease must have been executed

or renewed before March 1, 1990.

• The condition occurred during the lease term or

a renewal or extension.

• The condition was not caused by the landlord’s

negligence.

• The agreement does not relieve the landlord’s

duty to repair wastewater stoppage or backups

caused by deterioration, breakage, roots, ground

conditions, faulty construction or malfunction-

ing equipment.

• The lease must be in writing.

• The agreement for the tenant’s repairs must be

either underlined or printed in boldface in the

lease or in an attached, written addition (adden-

dum).

• The agreement must be specic and clear (un-

ambiguous).

• The agreement must be made knowingly, vol-

untarily and for consideration (money).

The last four requirements for this waiver are

identical to the prior one. Also, it is apparently

impossible to agree to a Section 92.006(f) waiver (the

last one) after February 28, 1990. Finally, this waiver

requires the tenant to pay for repairs. It says nothing

about the tenant making the repairs.

How may landlords be penalized for waiver

violations?

If a landlord knowingly violates either of the last

two waivers by contracting orally or in writing to

waive the landlord’s duty to repair, severe statutory

remedies are mandated. The tenant may recover

actual damages, a civil penalty of one month’s

rent, $2,000 and reasonable attorneys' fees (Section

92.0563[b]). The tenant has the burden of pleading

and proving the landlord breached the statute know-

ingly. If the lease is in writing and in compliance

with Section 92.006, the tenant’s proof must be clear

and convincing.

Although the penalties are intended to keep a

landlord from violating the waivers, it is difficult to

imagine how a waiver made in compliance with Sec-

tion 92.006 can be violated knowingly. Two of the

four requirements for either of the last two waivers

are for them to be underlined or in boldface print and

to be made knowingly, voluntarily and for consider-

ation. However, to make sure the tenant is aware of

any such waivers in the lease, the landlord should

have the tenant initial and date the provision.

Signicant changes were made to Subchapter B of

the Texas Property Code in 1989. As with any new

law, it will take time for the courts to construe and

clarify their meaning. In the meantime, landlords

and tenants must puzzle over what repairs material-

ly affect the physical health or safety of an ordinary

tenant.

Also, some concept of what constitutes an ordi-

nary tenant must be formulated. Are babies and the

physically handicapped “ordinary tenants?” Obvi-

ously, conditions that would affect their health and

safety might not affect the health of others.

What lease provisions are important?

Tenants and landlords also should be aware of how

the lease agreement can affect the landlord’s duty

to repair. Tenants may unwittingly give up (or even

gain) certain rights when they sign the lease. Here is

a list of the relevant lease provisions mentioned in

Subchapter B.

• The landlord and tenant can agree that the ten-

ant will make all the repairs at the landlord’s

expense. This may be placed in the lease or

made orally (Sections 92.006[d] and 92.0561[g]).

• The landlord and tenant can agree that the ten-

ant will make all repairs that materially affect

the physical health and safety of an ordinary

tenant at the tenant’s expense. This waiver

must meet the eight requirements previously

outlined (Section 92.006[e]).

• The lease agreement may address whether the

rst notice to repair must be in writing (Section

92.052).

• The landlord and tenant may agree to a pro-

portionate reduction in rent if a casualty loss

renders the unit partially unusable (Section

92.054).

• The landlord and tenant may agree that the

tenant, the tenant’s immediate family, the ten-

ant’s employer or employee of a company in

which the tenant owns an interest can make

the repairs under the repair-and-deduct option

(Section 92.0561).

• The landlord may waive any expressed or im-

plied duty to furnish heating and cooling equip-

ment (Section 92.0561).

• The tenant may agree (or refuse to allow) the

landlord to give effective notices by leaving the

notice in the tenant’s dwelling in a conspicu-

ous place. This affects whether a notice may

be given by leaving an Affidavit of Delay at

the tenant’s dwelling (Section 92.0562). It may

affect whether the landlord can give notice to

the tenant concerning the withholding of rent,

causing repairs to be performed or deducting

repair costs from rent in breach of Subchapter B

(Section 92.058).

It is imperative that both the landlord and ten-

ant know and understand Subchapter B of the Texas

Property Code. From the landlord’s perspective, it

is important to know what items must be repaired

and when the tenant has taken the appropriate steps

(notices) to prompt their repair.

From the tenant’s perspective, knowledge of Sub-

chapter B is important in taking advantage of the

available remedies. Tenants who attempt self-help

measures or improperly attempt to invoke Subchap-

ter B remedies may be liable to the landlord, accord-

ing to Section 92.058.

Most tenants may know that a notice must be

given before the landlord’s repair duty arises. How-

ever, few may realize that at least two, and possibly

three, notices are necessary. Likewise, tenants may

not know when the notices must be given nor what

they must say.

Finally, tenants must know that the landlord has a

duty to repair only conditions that materially affect

the physical health and safety of an ordinary tenant.

Even then, those conditions caused by the tenant,

a member of the tenant’s family, a tenant’s guest or

a lawful occupant of the dwelling are not covered.

Third party verication by health officials may be

required.

Retaliation

Subchapter H, Chapter 92, Texas Property Code

Subchapter H of the Texas Property Code was en-

acted by the 74th Texas Legislature, effective January

1, 1996. The new subchapter is composed primarily

of former Sections 92.057 and 92.059 of the Property

Code. It prohibits a landlord from retaliating when a

tenant pursues a repair-and-deduct option. Subchap-

ter H contains Sections 92.331 through 92.334.

Can landlords retaliate?

Landlords are prohibited from retaliating against a

tenant who:

(1) in good faith exercises or attempts to ex-

ercise against a landlord a right or remedy

granted to the tenant by lease, municipal

ordinance, or federal or state statute,

(2) gives a landlord a notice to repair or exercise

a remedy under this chapter,

(3) complains to a governmental entity responsi-

ble for enforcing building or housing codes, a

public utility, or a civic or nonprot agency,

and the tenant:

• claims a building or housing code viola-

tion or utility problem and

• believes in good faith that the complaint

is valid and that the violation or problem

occurred, or

(4) establishes, attempts to establish or par-

ticipates in a tenant organization (Section

92.331[a]).

What type of retaliatory actions are

prohibited?

Basically, for six months after the date the tenant

undertakes an action described in Section 92.331(a),

the landlord may not retaliate by:

• ling an eviction proceeding, except for the

grounds stated in Section 92.332 (discussed

later),

• depriving the tenant of the use of the premises,

except for reasons authorized by law,

• decreasing services to the tenant, increasing

the tenant's rent or terminating the tenant's

lease, or

• engaging, in bad faith, in a course of conduct

that materially interferes with the tenant's

rights under the tenant's lease (Section

92.331[b]).

What defenses do landlords have?

According to Section 92.332, a landlord is not

liable if the actions were not taken for purposes of

retaliation. However, liability remains whenever the

landlord violates a court order under Section 92.0563

by:

• increasing rent under an escalation clause in a

written lease for utilities, taxes, or insurance

• increasing rent or reducing services as part of a

pattern of rent increases or services reduction

for an entire multi-dwelling project.

What if an eviction or lease termination

occurs within the six-month period?

No eviction or lease termination shall be deemed

retaliatory if based on one of the following:

• the tenant is delinquent in rent when the land-

lord gives notice to vacate or les an eviction

action,

• the tenant, a member of the tenant's family, or

a guest or invitee of the tenant intentionally

damages property on the premises or by word

or conduct threatens the personal safety of the

landlord, the landlord's employees or another

tenant,

• the tenant materially breaches the lease, other

than by holding over, by an action such as

violating written lease provisions prohibiting

serious misconduct or criminal acts, except as

provided by this section,

• the tenant holds over after giving notice of

termination or intent to vacate,

• the tenant holds over after the landlord gives

notice of termination at the end of the rental

term and the tenant does not take action under

Section 92.331 until after the landlord gives

notice of termination, or

• the tenant holds over and the landlord's notice

of termination is motivated by a good faith

belief that the tenant, a member of the tenant's

family, or a guest or invitee of the tenant

might:

1) adversely affect the quiet enjoyment by other

tenants or neighbors,

2) materially affect the health or safety of the

landlord, other tenants or neighbors, or

3) damage the property of the landlord, other

tenants or neighbors (Section 92.332[b]).

What are the tenant's remedies for a

landlord's retaliation?

If the tenant can prove the landlord's actions were

retaliatory, the tenant may recover:

• a civil penalty of one month's rent plus $500,

• actual damages,

• court costs, and

• reasonable attorney's fees in an action either to

recover property damages, moving costs, actual

expenses, civil penalties, or to get declaratory

or injunctive relief, less any delinquent rents or

other sums for which the tenant is liable to the

landlord.

If the tenant's rent payment to the landlord is sub-

sidized in whole or in part by a governmental entity,

the civil penalty granted under this section shall

reect the fair market rent of the dwelling plus $500

(Section 92.333).

What remedies do landlords have for bad

faith claims led against them?

If a tenant les or prosecutes a suit under this

subchapter in bad faith, the landlord may recover

possession of the dwelling unit and may recover

from the tenant a civil penalty of one month's rent

plus $500, court costs and reasonable attorney's fees

(Section 92.334[b]). If the tenant's rent payment to

the landlord is subsidized in whole or in part by a

governmental entity, the civil penalty granted under

this section shall reect the fair market rent of the

dwelling plus $500.

The term bad faith is not dened. An example of

a tenant's bad-faith action is illustrated in Section

92.334(a). If a tenant les or prosecutes a suit for

retaliatory action based on a violation of a building

or housing code or a utility problem, and the govern-

ment building or housing inspector or utility com-

pany representative visits the premises and states in

writing that a violation of a building or housing code

does not exist or that a utility problem does not ex-

ist, there is a rebuttable presumption that the tenant

acted in bad faith.

Can tenants retaliate?

The tenant is prohibited from withholding rents,

causing repairs to be performed or deducting repair

costs from rent except in exact compliance with the

repair-and-deduct procedures outlined in Subchapter

B. If the tenant breaches this rule, the landlord may

recover actual damages. However, the penalties are

more severe if the tenant undertakes any or all three

of the same acts, in bad faith, after the landlord has

informed the tenant in writing that the acts are in

breach of the subchapter and stated the penalties for

the breach.

Under these circumstances, the landlord may

recover a civil penalty of one month's rent plus $500

and reasonable attorney's fees. However, the land-

lord must prove by clear and convincing evidence

that the

• written notice was given to the tenant in per-

son, sent by mail or delivered to the premises

and

• the tenant acted in bad faith (Section 92.058).

The tenant cannot take matters in hand but must

follow precisely the procedures prescribed in Sub-

chapter B. If the steps are not followed exactly, the

tenant, not the landlord, will be liable.

What defenses do tenants have?

The tenant can defend an eviction suit by the

landlord by showing that it is retaliatory (Section

92.335). Likewise, the tenant can defend a suit for

nonpayment of rent by showing that it is in compli-

ance with the repair-and-deduct procedures outlined

in Subchapter B.

Residential Landlord’s Duty to Return Security Deposits

Subchapter C, Chapter 92, Texas Property Code

Subchapter C of the Texas Property Code governs

security deposits (Section 92.001 through Section

92.109). The sections are addressed in numerical

order. When possible, the statutes have been restated

in common terms.

Which leases are covered?

The subchapter applies to all residential leases

regardless of when they were executed [Section

92.101].

How is the term security deposit dened?

Effective September 1, 1995, a security deposit is

dened as any advance of money, other than a rental

application deposit or an advance payment of rent,

intended primarily to secure performance of the resi-

dential lease that has been entered by both a landlord

and tenant (Section 92.102). No language dictates the

size of the deposit; the amount is strictly negotiable.

When should landlords return a deposit?

The landlord is required to return the tenant’s

security deposit on or before 30 days after the tenant

surrenders the premises (Section 92.103). The tenant

need not give advance notice of the surrender as a

condition for the refund except when the lease so

provides. Even then, the requirement must be under-

lined and placed in conspicuous bold print.

If the landlord is in bankruptcy when the refund is

required, the tenant’s right to the deposit takes prior-

ity over the claim of any creditor, including a trustee

in bankruptcy.

Must the security deposit be mailed by the

landlord or received by the tenant within 30

days after surrender of the premises?

According to Section 92.1071, a landlord must

mail the security deposit (and an accounting if

deductions are made). The letter must be placed in

the U.S. mail and postmarked on or before the end of

the 30-day period. It does not have to be received by

the tenant within the 30 days.

What charges may be deducted from a

security deposit?

Some charges may be deducted from the security

deposit (Section 92.104). The landlord may deduct

damages and charges for which the tenant is legally

liable under the lease or as a result of its breach.

However, no charges are allowed for normal wear

and tear. The phrase normal wear and tear is

dened as “deterioration that results from the

intended use of a dwelling . . . but term does not

include deterioration that results from negligence,

carelessness, accident or abuse of the premises,

equipment or chattels by the tenant, by a member of

the tenant’s household or by a guest of the tenant”

(Texas Property Code, Section 92.001[4]).

Although there is a statutory denition of normal

wear and tear, there has been no case law to amplify

its meaning. Consequently, the determination is on

a case-by-case basis with no fact situations as prec-

edents.

The landlord is required to give the tenant a writ-

ten, itemized list of all the deductions except when

• the tenant owes rent at the time of the surren-

der and

• the amount of rent owed is not disputed.

How and when should the unit’s condition

be veried?

Deductions from the security deposit are one of

the major areas of dispute between the landlord

and tenant. The problems center on (1) whether the

unit’s condition justied a cleanup, (2) whether a

defect was caused by the tenant or resulted from nor-

mal wear and tear and (3) the amount of any justied

repairs on cleanup. Unless proper precautions are

taken by the landlord and tenant, proving the unit’s

condition both at the move-in and time of surrender

may be difficult.

Part of the problem lies with the different motiva-

tions of the parties at the critical times. When show-

ing the unit, the landlord tends to accentuate the

unit’s positive aspects and downplay the negative.

When the tenant moves out, the landlord tends to

accentuate the negative aspects of the unit to justify

deductions from the security deposit. Obviously, the

tenant takes the opposite side each time.

Consequently, accumulation and preservation

of objective evidence of the unit’s condition at the

crucial times are imperative. Both parties should be

amiable to one or more of the following suggestions.

Perhaps the easiest way to document defects,

aws, needed repairs, dirty spots, unclean appliances

and so forth is for the landlord and tenant to conduct

a walk-through and list problems as they are discov-

ered. After the walkthrough, the list should be dated

and signed. Both the landlord and tenant may wish

to reserve the right to document other problems

discovered within a certain period after move-in or

move-out.

Another approach is to take photographs or video-

tapes of the unit’s condition at move-in and move-

out. This may be supplemental to the walk-through

or in lieu of it if both parties cannot be present at

either or both times.

The latter approach is preferable for several rea-

sons. First, the severity of a problem can be docu-

mented better on lm. Second, ownership or man-

agement may change after move-in. The new owners

or managers may dispute the ndings of a walk-

through conducted when they were not personally

present. Third, in major apartment complexes, it is

physically impossible for the landlord to be present

for each move-in and move-out when many tenants

arrive and leave at the same time.

And nally, photographs taken both at the begin-

ning and end of a lease term help differentiate dam-

ages and normal wear and tear. The tenant is liable

for damages but not for normal wear and tear.

Another unanticipated problem could arise even

with careful walk-throughs and accompanying pho-

tographs. Such problems include sudden damages

occurring after move-in that are not caused by the

tenant. These include damages such as a leaking roof

or ooding.

Obviously, the tenant should call these problems

to the landlord’s attention. However, the landlord

may do nothing and charge the damages to the ten-

ant’s security deposit. This could happen, especially

if a change of ownership intervenes. Consequently,

pictorial documentation of damages occurring after

move-in should be made and preserved.

Even with a walk-through, photographs or both,

the tenant should be aware of any lease provision

permitting clean-up costs. The wording of the provi-

sion and the amounts allowed for a cleanup in the

lease are important.

For instance, the tenant might leave the apart-

ment immaculate. Even so, the lease still may allow

the landlord to have the unit cleaned for a predeter-

mined cost.

Who returns a deposit when ownership

changes?

When an intervening change of apartment own-

ership occurs, the former owner who received the

security deposit and the new owner are jointly liable

for the return (Section 92.105). However, the former

owner’s liability terminates once the new owner de-

livers to the tenant a signed statement acknowledg-

ing the owner has received and is responsible for the

tenant’s security deposit. The notice must specify

the exact amount of the deposit received.

The section applies to any change of ownership

by sale, assignment, death, appointment of receiver,

bankruptcy or otherwise except to a real estate mort-

gagee who acquires title by foreclosure.

Section 92.106 gives a directive without impos-

ing a penalty. It simply requires the landlord to keep

accurate records of all security deposits. There is no

legal requirement that the escrow payment be held

in a separate account or that it accrue interest.

Why is a forwarding address important?

The tenant is required to give the landlord a writ-

ten statement of the tenant’s forwarding address for

purposes of refunding the security deposit. Until the

written forwarding address is received, the landlord

has no duty to

• return the tenant’s security deposit or

• give the tenant a written description of dam-

ages and charges.

However, failure to give the forwarding address

does not cause the tenant to forfeit the right of re-

fund or the right to receive a description of damages

and charges.

The tenant’s written notice of a forwarding address

is a condition for the refund of the security deposit

(Section 92.107). However, it does not state when or

how the notices must be given.

The tenant has at least two possible approaches to

the problem. If the tenant has a permanent address,

as students do while away at college, the forwarding

(or home) address may be placed on the lease when it

is signed.

If the forwarding address is not placed on the lease

form, proof of the delivery may be a problem. The

tenant may wish to pursue either or both of the fol-

lowing procedures.

First, personally deliver a written copy of the for-

warding address and have the landlord or authorized

agent acknowledge the receipt. Keep the acknowl-

edgment (on a separate piece of paper) for proof of

delivery and the date notice was given.

Second, send the forwarding address to the land-

lord or authorized agent by certied mail, return

receipt requested. Keep a copy of the notice and the

return receipt for proof of delivery.

In fact, either a personal delivery of the forward-

ing address or a certied letter sent to the landlord

approximately 30 days before the lease terminates

can satisfy several requirements. First, if the lease

mandates an advance written notice as a condition

for refund of the security deposit (as discussed earlier

by Section 92.103), the advance notice can fulll

such a requirement.

Second, as just discussed, the letter can apprise the

landlord of the tenant’s forwarding address if it was

not attached to the lease at signing.

Finally, most written leases require the tenant to

give the landlord a 30-day advance written notice of

move-out. This is required even though the lease is

for a xed term. Again, this requirement can be met

with such a notice.

To make sure the check is not lost in the mail, the

tenant may wish to amend the lease by requiring the

landlord to forward both the security deposit and the

itemized list of deductions by certied mail, return

receipt requested. However, the tenant generally

does not have sufficient leverage to negotiate such a

change.

The last two sections of Subchapter C describe the

tenant’s and landlord’s liability.

May a tenant withhold rent in lieu of the

security deposit?

A tenant is prohibited from withholding any part

of the last month’s rent on grounds that the security

deposit will cover the balance (Section 92.108). If

the tenant so withholds, the law presumes the ten-

ant acted in bad faith. The tenant is liable for three

times the amount of rent wrongfully withheld plus

the landlord’s reasonable attorneys' fees.

May a landlord wrongfully withhold a

security deposit?

The landlord is prohibited from wrongfully with-

holding a security deposit or failing to provide a writ-

ten description and itemization of the deductions

(Section 92.109). If the landlord wrongfully continues

to do either or both for more than 30 days after the

tenant surrenders the premises, the law presumes

the landlord acted in bad faith.

The term bad faith is not dened by the statute.

However, the case law does lend some clues. In the

case of Reed v. Ford, 760 S.W. 2d 26, the court held

that the term meant “ . . . an honest disregard of

tenant’s rights; bad faith requires intent to deprive

tenant of refund known to be lawfully due.”

Knowledge of the law plays an important role. In

the case of Ackerman v. Little, 679 S.W. 2d 70, the

court held that the landlord was an “amateur lessor”

having only one rental property. As such, the land-

lord was ignorant of the statute. This was a factor to

consider in determining bad faith.

An appellate decision in 1994, Leskinen v. Burford,

892 S.W. 2d 135, exonerated a landlord from liability,

citing the "amateur lessor" defense. The landlord

returned the deposit 35 days after surrender of the

premises.

The appellate court distinguished this case from

a former one, Wilson v. O'Connor, 555 S.W. 2d 776,

where the landlord was held liable. In Wilson the

landlord never returned the deposit as opposed to be-

ing ve days late in this instance.

To offset these cases, the tenant may wish to

include a copy of Section 92.109 with the forwarding

address.

The landlord who acts in bad faith by withholding

all or a portion of a security deposit is liable to the

tenant for

• $100,

• three times the portion of the deposit wrong-

fully withheld, and

• the tenant’s reasonable attorneys' fees.

The landlord, not the tenant, has the burden of prov-

ing the retention of any portion of the deposit was

reasonable.

May a landlord wrongfully fail to provide an

itemized list of deductions?

The landlord who acts in bad faith by not provid-

ing a written description and itemized list of dam-

ages and charges

• forfeits the right to withhold any portion of the

tenant’s security deposit,

• forfeits the right to bring suit against the tenant

for damages to the premises, and

• is liable for the tenant’s reasonable attorneys'

fees.

This section’s impact on tenants cannot be over-

emphasized. Section 92.104 allows the landlord to

deduct “damages and charges for which the tenant

is legally liable under the lease” from the tenant’s

security deposit.

The tenant may unknowingly consent to a multi-

tude of charges when signing the lease. The tenant

should realize that both the provision permitting the

charge and the amount of the charge are, in theory,

negotiable. Leases often require tenants to pay

charges for the following:

• cleanup (discussed earlier)

• late rent payments (both initial and daily)

• violating pet restrictions

• unpaid utilities

• unreimbursed service charges

• utilities for repairs or cleaning

• admitting company representatives to remove

resident’s telephone or TV cable services

• opening the apartment for resident or occupant

who has lost or forgotten key

• duplicate keys

• unreturned keys

• insufficient light bulbs

• scratches, burns, stains or unapproved holes

• removing or rekeying unauthorized locks or

latches

• reletting costs

• returned check charges (not to exceed $100)

If the security deposit is insufficient to cover the

charges and damages, the landlord may recover the

balance along with attorneys' fees, ling fees and

court costs in a judicial proceeding against the tenant.

The tenant should examine provisions pertain-

ing to security deposits before signing the lease. In

particular, does the lease require an advance notice

as a condition for a refund (Section 92.103)? Exactly

what damages and charges can be deducted from the

deposit (Section 92.104)?

If the tenant nds a satisfactory

replacement, what effect does this have

on the landlord's retention of the security

deposit or rent-prepayment fee?

Effective January 1, 1996, a landlord may not with-

hold a security deposit or a rent prepayment fee if

the tenant secures a replacement satisfactory to the

landlord and the replacement tenant occupies the

dwelling on or before the commencement date of the

lease (Section 92.1031[a]).

What happens if the landlord, not the

tenant, nds a satisfactory replacement?

If the landlord secures a replacement tenant satis-

factory to the landlord and the replacement tenant

occupies the dwelling on or before the commence-

ment date of the lease, the landlord may retain and

deduct from the security deposit or rent prepayment

either:

• a sum agreed to in the lease as a lease cancella-

tion fee or

• actual expenses incurred by the landlord in

securing the replacement, including a reason-

able amount for the time the landlord expended

in securing the replacement tenant (Section

92.1031[b]).

Rental Application

Subchapter H, Chapter 92, Texas Property Code

Subchapter H of the Texas Property Code was add-

ed effective January 1, 1996, (Section 92.351 through

Section 92.354). The sections address a landlord-

tenant problem relating to rental application depos-

its, primarily how they interact with security depos-

its and when the deposit must be refunded.

A list of denitions contained in Section 92.351

includes:

• Application deposit means a sum of money

that is given to the landlord in connection with

a rental application. It is refundable if the ap-

plicant is rejected as a tenant.

• Application fee means a nonrefundable sum of

money that is given to the landlord to offset the

costs of screening an application for acceptance

as a tenant.

• Applicant or rental applicant means a person

who applies to a landlord for a dwelling rental.

• Co-applicant means a person who applies to

rent a dwelling with other applicants and who

plans to live in the dwelling with other appli-

cants.

• Deposited means money deposited in an ac-

count of the landlord or the landlord’s agent in

a bank or other nancial institution.

• Landlord means a prospective landlord to

whom a person applies to rent a dwelling.

• Rental application means a written request

made by an applicant to a landlord to lease

premises from the landlord.

• Required date means the required date for

any acceptance of the applicant under Section

92.352.

What information must accompany the

rental application when presented to the

applicant?

When the applicant receives the rental application

form from the landlord, the landlord must provide,

in writing, his or her criteria for accepting or deny-

ing the application. The criteria may include the

applicant’s criminal history, previous rental history,

current income, credit history, or failure to provide

accurate or complete information on the application

form (Section 92.3515[a]).

Must the tenant verify receipt of the criteria

form?

Yes. The applicant must sign an acknowledgment

form indicating the notice was provided. If the form

is not signed, it is presumed that the notice was not

provided (Section 92.3515[b]).

How must the acknowledgment read?

The acknowledgment must include the following

language or its substantive equivalent.

“Signing this acknowledgment indicates that you

have had the opportunity to review the landlord’s

tenant selection criteria. The tenant selection cri-

teria may include factors such as criminal history,

credit history, current income, and rental history.

If you do not meet the selection criteria, or if you

provide inaccurate or incomplete information, your

application may be rejected and your application fee

will not be refunded.” (Section 92.3515[c])

May the acknowledgment be included in

the rental application form?

Yes. The acknowledgment may be a part of the

rental application form if it is underlined or placed

in bold print (Section 92.3515[d]).

Under what circumstances can the tenant

get the rental application fee returned or

refunded?

If the landlord rejects the application and the

required selection or rejection criteria was not made

available to the applicant, the landlord must return

the application fee and any application deposit (Sec-

tion 92.3515[e]).

If required to do so, may the landlord refund

the application fee through the mail?

Yes. If the applicant requests the landlord to mail

the refund, the landlord must mail it to the address

furnished by the applicant (Section 92.3515[f]).

When is an application deemed rejected?

An application is considered rejected when the

landlord does not give notice of acceptance to the ap-

plicant on or before the seventh day after the:

(1) date the applicant submits a completed

rental application to the landlord on a form

furnished by the landlord or

(2) date the landlord accepts an application de-

posit (Section 92.352).

The landlord cannot reject one co-applicant with-

out rejecting all co-applicants.

What if the seventh day falls on Saturday,

Sunday or a state or federal holiday?

The required compliance date is extended to the

end of the next day following the Saturday, Sunday

or state or federal holiday on which the deadline falls

(Section 92.353[c]).

To whom must the landlord communicate

acceptance or rejection of the application?

Unless the applicant requests otherwise, a landlord

is presumed to have given notice of acceptance or

rejection depending on the mode of communication

(Section 92.353). If by telephone, the message must

be given to the applicant, co-applicant or a person

living with the applicant either on or before the

required date. If by mail, the notice must be by U.S.

mail, addressed to the applicant and postmarked on

or before the required date.

If the applicant requests acceptance or rejection by

mail, the acceptance or refund must be mailed to the

address furnished by the applicant.

The statute is explicit concerning the date an ap-

plication is deemed rejected. However, the statute

does not state the exact date the refund is due.

What is the landlord’s liability for not

refunding the application fee or deposit?

A landlord who in bad faith fails to refund an appli-

cation fee or deposit (presumably within the seven-

day period) is liable for $100, three times the amount

wrongfully retained and the applicant’s reasonable

attorney’s fees (Section 92.354).

The term bad faith is not dened. Presumably the

same denition used in the security deposit section

applies (Section 92.109).

May any of the requirements imposed

on landlords for providing the criteria

standards and refunding the application fees

be waived?

No. Any provision in a rental application that pur-

ports to waive a right or exempt a party from liabil-

ity or duty under the requirements governing rental

applications is void (Section 92.355).

Residential Landlord’s Duty to Install,

Inspect and Repair Smoke Alarms and Fire Extinguishers

Subchapter F, Chapter 92, Texas Property Code

The residential landlord has responsibility and

liability for the installation, inspection and repair of

smoke alarms and re extinguishers (Subchapter F,

Section 92.251 through 92.2611). Because the sub-

chapter is relatively new, many of the sections are

tied to specic dates.

What are the denitions of relevant terms

for the application of this section?

A bedroom means a room designed with the intent

that it be used for sleeping purposes.

A dwelling unit means a home, mobile home, du-

plex unit, apartment unit, condominium unit or any

dwelling unit in a multiunit residential structure.

It also means a “dwelling” as dened by Section

92.001.

A smoke alarm means a device designed to detect

and to alert occupants of a dwelling unit to the vis-

ible and invisible products of combustion by means

of an audible alarm (Section 92.251).

The duties of the landlord to install, inspect or re-

pair smoke alarms and re extinguishers in a dwell-

ing unit and the tenant’s remedies for the landlord’s

breach of those duties are contained in Subchapter F

(Section 92.252[a]). Case law and other statutory law

are irrelevant in determining those duties and rem-

edies. Local ordinances are relevant when they

• were adopted before September 1, 1981, and re-

late to the installation of smoke alarms in new

or remodeled units before September 1, 1981;

• relate to re safety as part of a building, re or

housing code including requirements concern-

ing both the type and installation of smoke

alarms;

• contain additional enforcement provisions not

in contradiction of Section 92.252(b); or

• require operational smoke alarms each time

they are regularly inspected by local officials.

Are battery-powered alarms allowed by law?

The validity of local ordinances requiring smoke

alarms to be powered by alternating current is ad-

dressed in Section 92.252(b). A local ordinance may

require the installation of a smoke alarm powered by

alternating electrical current when a battery-pow-

ered alarm was installed before September 1, 1987,

and

• the interior of the unit is repaired, remodeled or

rebuilt at a projected cost of more than $5,000

and the repair, remodeling or rebuilding re-

quires a municipal building permit;

• a smoke alarm powered by alternating current

actually was installed in the unit prior to Sep-

tember 1, 1987; or

• a smoke alarm powered by alternating current

was required by lawful city ordinance when the

unit was initially constructed.

Four exceptions to these rules are described in Sec-

tion 92.253. These include:

(1) dwelling units occupied by the owner, no

parts of which are leased to a tenant;

(2) dwelling units in a building ve or more sto-

ries high in which smoke alarms are required

or are regulated by local ordinance; and

(3) nursing or convalescent homes licensed by

the Department of State Health Services and

certied to meet the Life Safety Code under

federal law and regulations.

The fourth possible exception applies to per-

sons licensed to install re alarms or re detection

devices under Chapter 6002 of the Texas Insurance

Code. Individuals so licensed must comply with

that chapter of the Insurance Code when installing

smoke alarms.

What legal characteristics must smoke

alarms have?

Smoke alarms must meet the following qualica-

tions. They must be:

• designed to detect both the visible and invisible

products of combustion;

• designed with an alarm audible to a person in

the bedrooms they serve; and

• tested and listed for use as a smoke alarm by

Underwriters Laboratories, Inc., Factory Mutual

Research Corporation or United States Testing

Company, Inc.

The power system and installation procedure of

a security device that is electrically operated rather

than battery operated must comply with applicable

local ordinances.

What additional characteristics are required

for smoke alarms for hearing-impaired

tenants after Jan. 1, 2010?

Effective Jan. 1, 2010, landlords must install

smoke alarms that are capable of alerting a hearing-

impaired person in the bedrooms they serve if re-

quested by the tenant or as required by law (92.254

[a-1]).

Where must smoke alarms be located in

new buildings?

Smoke alarm placement in newly constructed

buildings is specied in Section 92.255. The landlord

must install at least one smoke alarm in each sepa-

rate bedroom in a dwelling unit. In addition:

(a) if the unit is designed to use a single room for

dining, living and sleeping, a smoke alarm must

be located inside that room,

(b) if one corridor serves multiple bedrooms, at

least one smoke alarm must be installed in the

corridor in the immediate vicinity of the bed-

rooms, and

one smoke alarm must be located on each level.

Are there any new requirements for

dwelling units occupied before Sept. 1, 2011?

Yes. Effective Sept. 1, 2011, a new statute allows

dwelling units occupied as a residence before Sept. 1,

2011, or with a certicate of occupancy issued before

that date, to have battery-powered smoke alarms in-

stalled at the locations specied above without being

interconnected with other smoke alarms. But, the

replacement units for one of these original smoke

alarms must comply either with the residential

building code standards in effect when the dwell-

ing unit was rst occupied or with Section 92.252(b)

regarding the use of battery-powered smoke alarms

discussed earlier (Section 92.255(b)).

Where precisely must smoke alarms be

installed in dwelling units?

Mandatory installation procedures are described in

Section 92.257. First, any installation must comply

with the manufacturer’s recommended procedures.

Second, the alarm may be placed either on the wall

or the ceiling. If placed on the wall, the alarm must

be between six and 12 inches from the ceiling or in

accordance with the manufacturer's instructions. If

placed on the ceiling, it must be no closer than six

inches to a wall or in accordance with the manu-

facturer's instructions. The alarm may be placed in

other areas if the local ordinance or a local or state

re marshal so approves.

Are there other ways to comply with this

subchapter relating to smoke alarms?

Yes. A landlord may comply with the require-

ments of this subchapter if the landlord:

(1) has a re detection device, as dened by Sec-

tion 6002.002 of the Insurance Code, that

includes a smoke detection device installed in

a dwelling unit; or

(2) installs smoke alarms in compliance with

Chapter 766, Health and Safety Code, for a

one-family or two-family dwelling unit (Sec-

tion 92.2571).

Note. To assist readers, here is the referenced

denition of a “re detection device” from Section

6002.002 of the Insurance Code: “Fire detection de-

vice” means any arrangement of materials, the sole

function of which is to indicate the existence of re,

smoke, or combustion in its incipient stages.

Again. To assist readers, here are the referenced

denitions and requirements from Chapter 766 of

the Health and Safety Code:

• One-family or two-family dwelling means a

structure that has one or two residential units

that are occupied as, or designed or intended

for occupancy as, a residence by individuals.

• Smoke detector means a device or a listed

component of a system that detects and sounds

an alarm to indicate the presence of visible or

invisible products of combustion in the air.

• Smoke detector for hearing-impaired persons

means a smoke detector that, in addition to

the sound alarm, uses a xenon design strobe

light with a visible effective intensity of not

less than 100 candela, as tested and labeled in

accordance with ANSI/UL Standard 1638, and

with a ash rate of not less than 60 nor more

than 120 ashes per minute.

766.002. Smoke Detector Requirements

• Each one-family or two-family dwelling

constructed in this state must have working

smoke detectors installed in the dwelling in

accordance with the smoke detector require-

ments of the building code in effect in the

political subdivision in which the dwelling is

located, including performance, location, and

power source requirements.

• If a one-family or two-family dwelling does not

comply with the smoke detector requirements

of the building code in effect in the political

subdivision in which the dwelling is located,

any home improvement to the dwelling that

requires the issuance of a building permit must

include the installation of smoke detectors in

accordance with the building code in effect in

the political subdivision in which the dwell-

ing is located, including performance, location,

and power source requirements.

After being installed, when must the

landlord inspect and repair the smoke

alarms?

The landlord must determine the smoke alarm is

in good working order at the beginning of the ten-

ant’s possession. Thereafter, during the lease term

or during a renewal or extension of the lease, the

landlord must inspect and repair a smoke alarm

whenever the tenant gives notice of a malfunction or

requests an inspection or repair (Sections 92.258[a]

and [b]).

How does the landlord determine whether a

smoke alarm is in good working order?

The landlord determines a unit is in good working

order by:

• using actual smoke,

• operating the test button, or

• following other recommended test procedures

of the manufacturer for that particular model

(Section 92.258[a]).

How long do the tests last?

Once the landlord has performed the required tests

and the unit passes inspection, the unit is presumed

to be in good working order until the tenant requests

repairs or a new lease is entered. {Section 92.258[g]).

If the tenant requests an inspection or

repair or gives notice of a malfunction, how

long does the landlord have to respond?

The landlord must respond to the tenant’s request

within a reasonable time considering the availability

of material, labor and utilities (Section 92.258[d]).

Are there any exceptions to when the

landlord must respond to the tenant’s

request?

Yes, if malfunctioning of the unit or the damage to

the unit was caused by the tenant, the tenant’s fam-

ily, the tenant’s guests or invitees, the landlord may

need to inspect but has no duty to repair the unit.

However, if the tenant pays in advance the reason-

able repair and replacement costs, including labor,

materials, taxes and overhead, the landlord then has

the duty to repair and/or replace the unit as well

(Section 92.258[c]).

Is the landlord ever obligated to provide

batteries for a battery-operated smoke alarm

during the lease term or during a renewal or

extension?

No. If the landlord determines the smoke alarm is

in good working order when the tenant takes posses-

sion of the dwelling unit, there is no obligation to

provide batteries thereafter. The tenant evidently has

the duty to replace the batteries (Section 92.258[f]).

When is the landlord liable?

The landlord is liable for:

• not installing a smoke alarm at the begin-

ning of the tenant’s occupancy as required by

the subchapter or as required by a pertinent

municipal ordinance as permitted by the sub-

chapter or

• not installing, inspecting or repairing the alarm

after receiving a written notice from the tenant

that the tenant may exercise his or her rem-

edies under this subchapter if the landlord does

not comply within seven days (Section 92.259).

If there is a written lease, the lease may require the

tenant to make the initial request for installation,

inspection or repair in writing versus making the

request orally.

What remedies do tenants have?

The tenant’s remedies for the landlord’s failing to

install a smoke alarm at the commencement of the

lease or failing to inspect or repair a smoke alarm

within seven days when asked to do so by the ten-

ant are prescribed in Section 92.260. The tenant is

entitled to one or more of the following remedies:

• a court order directing the landlord to comply

with the tenant’s request if the tenant is in

possession of the dwelling unit (associated at-

torney fees are recoverable after September 1,

1995),

• a judgment against the landlord for damages

suffered by the tenant because of the landlord’s

violation (associated attorney fees are recover-

able after September 1, 1995),

• a judgment against the landlord for a civil pen-

alty of one month’s rent plus $100 if the land-

lord fails to install, inspect or repair a alarm

within seven days after receiving a written

request,

• a judgment against the landlord for court costs

(no attorney’s fees recoverable after September

1, 1995),

• unilateral termination of the lease without a

court proceeding if the landlord fails to install,

inspect or repair a alarm within seven days

after receiving a written request.

What defenses does the landlord have?

Section 92.261 contains two defenses to a tenant’s

suit brought under Section 92.260. The tenant can-

not prevail if the landlord proves that:

• on the date the tenant gave notice to install,

inspect or repair the smoke alarm, the tenant

was delinquent in rent payments or

• on the date the tenant terminated the lease

or led suit, the tenant had not fully paid all

costs requested by the landlord and authorized

by Section 92.258.

The only costs the landlord may request under

Section 92.258 are advance payments for reasonable

repair or replacement costs, including labor, materi-

als, taxes and overhead for a smoke alarm that the

tenant, the tenant’s family or the tenant’s guests

damaged or caused to malfunction.

Before September 1, 1995, any recovery for the ten-

ant for a defective smoke alarm was conditioned on

the tenant requesting the landlord to install, inspect

and repair the smoke alarms. With the amendment

to Section 92.259 effective September 1, 1995, liabil-

ity may arise for not installing a smoke alarm when

the tenant takes possession.

Consequently, tenants should make a formal

written request at the beginning of the lease term to

have the landlord inspect or repair all smoke alarms.

The request should be repeated periodically through-

out the duration of the lease.

When is a tenant liable for disabling a

smoke alarm?

Effective September 1, 1995, Section 92.2611 was

added to the Property Code. The statute allows the

landlord to obtain a judgment against the tenant for

damages whenever the tenant:

• removes a battery from a smoke alarm without

immediately replacing it with a working bat-

tery or

• knowingly disconnects or intentionally dam-

ages a smoke alarm, causing it to malfunction

(2611[a][b]).

What are the conditions for obtaining the

judgment against the tenant?

The statute conditions the landlord’s recovery of

damages on giving two separate notices.

First, the lease must contain the following notice

in underlined or bold-faced print:

The tenant must not disconnect or intentionally

damage a smoke alarm or remove the battery with-

out immediately replacing it with a working battery.

The tenant may be subject to damages, civil penal-

ties, and attorney’s fees under Section 92.2611 of the

Property Code for not complying with this notice

(Section 92.2611[d][1]).

Second, the landlord must notify the tenant of the

following in a separate document after the landlord

discovers that the tenant has disconnected or dam-

aged a alarm or removed and not replaced a battery:

The landlord intends to exercise the land-

lord’s remedies under Section 92.2611 if the

tenant does not reconnect, repair or replace

the smoke alarm or replace the removed

battery within seven days after receipt

of this notice (Section 92.2611[d][2] and

92.2611[d-l].

What are the landlord’s remedies?

Basically, the tenant is liable for all the landlord's

damages caused by the tenant disabling the alarm.

However, Section 92.2611(e) species the landlord

may obtain or exercise one or more of the following

remedies:

• a court order directing the tenant to comply

with the landlord’s notice,

• a judgment for a civil penalty of one month’s

rent plus $100,

• a judgment for court costs, and

• a judgment for reasonable attorney fees.

What about damages sustained by a tenant’s

guests or invitees who suffer damages

caused by a defective smoke alarm?

The landlord is liable for damages suffered by the

tenant’s guests and invitees if caused by the land-

lord’s failure to install, inspect or repair a smoke

alarm as required by the statute. However, the ten-

ant is liable to the tenant's guests and invitees if the

damages were caused by the tenant’s removal of a

battery or by knowingly or intentionally disconnect-

ing or damaging an alarm (Section 92.2611[f]).

Where must the tenant send required

notices?

Section 92.262 designates the managing or leasing

agent, whether residing or maintaining an office on-

site or off-site, as the agent of the landlord for pur-

poses of notices or other communications required

or permitted by the statute.

The notice to the landlord to install, inspect and

repair smoke alarms must be given and documented.

Otherwise, if the tenant or the tenant’s property is

damaged because the smoke alarm malfunctions,

the landlord is absolved of liability. The tenant’s

exclusive remedies for defective smoke alarms are

contained in Subchapter F. Once the smoke alarms

are installed, recovery for a defective smoke alarm

depends on the tenant’s giving notice.

The tenant should examine lease provisions per-

taining to smoke alarms before signing the lease. In

particular, does the lease require the initial request

for installation, inspection or repair of a smoke

alarm to be in writing (Section 92.260)? If so, the

written request should be presented when the lease

is signed. However, all requests for installation,

inspection or repair should be made in writing and

documented regardless of the statute.

Can the tenant waive the landlord’s duty to

install smoke alarms? Can the tenant waive

the landlord’s duty to inspect and repair

smoke alarms when requested?

No and Yes. The tenant cannot waive the land-

lords’ duty to install smoke alarms, but the duty

to inspect and repair them can be waived (Sections

92.006[a]).

Can the landlord’s duties and the tenant’s

remedies concerning smoke alarms be

enlarged?

Yes, but only by a specic written agreement (Sec-

tion 92.006[b]).

Fire Extinguishers

(Effective Sept. 1, 2011)

Does a landlord have a duty to install re

extinguishers in dwelling units before or

after Sept. 1, 2011?

No. But, the landlord has a duty to inspect certain

ones if they have been installed (Section 92.263[a]).

What type of re extinguishers must be

inspected? When must the inspection

occur?

If the landlord has installed a 1A1OBC residential

re extinguisher as dened by the National Fire Pro-

tection Association or any other nonrechargeable re

extinguisher in accordance with a local ordinance or

other law, then the landlord must inspect them at

the beginning of the tenant’s possession and within

a reasonable time after receiving written notice from

the tenant (Section 92.263[a]).

What type of inspection is required? How

long is it effective?

At a minimum, the landlord must ensure that the

re extinguisher is present and that the re extin-

guisher gauge or pressure indicator shows the correct

pressure as recommended by the manufacturer. If

the extinguisher passes the inspection at the begin-

ning of the tenant’s possession, then it is presumed

to be in good working order until the tenant makes a

written request for an inspection (Section 92.263[b]

and [c]).

When must the landlord repair or replace

the re extinguisher?

The landlord must repair or replace the extinguish-

er at the landlord’s expense whenever the inspection

reveals that it is not functioning or that it does not

have the correct pressure recommended by the man-

ufacturer. Also, the landlord must repair or replace

the extinguisher whenever the tenant noties the

landlord that he or she has used it for a legitimate

purpose (Section 92.264[a]).

What happens when the tenant or the

tenant’s guests or invitees remove,

misuse, damage or otherwise disable a re

extinguisher?

In such case, the landlord may have a duty to

inspect the extinguisher. The landlord has no duty

to repair or replace the unit, but the landlord must

do so within a reasonable time if the tenant pays in

advance for the reasonable repair or replacement, in-

cluding labor, materials, taxes and overhead (Section

92.264[b]).

Residential Landlord's Liability for Utility

Cutoffs and Interruptions

Subchapter G and Section 92.008, Subchapter A, Chapter 92, Texas Property Code

• a pro rata refund of any advance rentals paid

from the date of termination or the date the

tenant moves out, whichever is later;

• actual damages, including but not limited to

moving costs, utility connection fees, storage

fees and lost wages from work;

• court costs and attorneys' fees, excluding any

attorneys' fees for a cause of action for damages

relating to a personal injury.

The tenant may either terminate the lease or have

the utilities continued or reconnected after receiving

notice from the utility company. However, either

option ceases if the

• tenant has not yet terminated the lease or led

a suit and

• landlord provides the tenant with written evi-

dence from the utility company that all delin-

quent sums have been paid in full.

Before the tenant may assert either remedy, the

tenant must receive notice from the utility company

of the cutoff or pending cutoff. However, if the land-

lord has agreed to provide the utilities, all communi-

cations from the utility company will be directed to

the landlord, not to the tenant. Consequently, ten-

ants need to contact the utility company so notices

of a cutoff or pending cutoff will be sent to them as

well as to the landlord. It is much less expensive and

troublesome to avert a cutoff than to pay hook-up

charges and deposit fees to have utilities reconnected

if the tenant wishes to continue the lease.

This subchapter apparently was prompted by

economic hard times. Landlords failed to pay the

utilities yet continued to charge rent.

Three issues become apparent under the subchap-

ter. First, is the remedy to pay and deduct the utility

bill a one-time event or a continuing choice? For

example, if the tenant chooses to pay the delinquent

utility bill to avoid a cutoff, can the tenant thereafter

pay each month’s utility bill directly to the utility

company and deduct it from rent? Or, must the ten-

ant wait until the utility company again threatens a

cutoff?

Second, can the amount of the utility bill exceed

one month’s rent? For example, suppose the delin-

quent utility bill is $600, and the tenant’s monthly

rent is $300. Can the tenant pay the utility bill and

avoid rent for the next two months? This is not

permitted under Subchapter B, which states that the

repair bill cannot exceed one month’s rent.

Subchapter G, Section 92 of the Texas Property

Code, effective August 28, 1989, addresses the

tenant’s remedies when the landlord agrees but fails

to provide utilities. The subchapter consists solely of

Section 92.301.

The discussion also includes Subchapter A, Section

92.008, entitled "Interruption of Utilities." Section

92.008 was expanded signicnatly effective January

1, 1996. It addresses when utilities may be inter-

rupted by the landlord and the tenant’s remedies

when the landlord wrongfully interrupts the utility

services.

What remedies do tenants have when

landlords interrupt utility service?

For Section 92.301 to apply, the landlord must

have an expressed or implied agreement in the lease

to furnish and pay for the tenant’s water, gas or

electrical service. The landlord is then liable to the

tenant if the utility company cuts off or threatens to

cut off the service because the landlord has not paid

the utility bill.

In either event, the tenant has two options:

• Pay the utility company the funds needed

either to reconnect the utilities or to avert a

cutoff, whichever the case may be. The tenant

then can deduct the amount so paid from future

rent without resorting to any judicial action.

• Terminate the lease. To do so, the tenant must

give the landlord written notice of the decision

and move out within 30 days from the date the

tenant receives notice from the utility company

of the pending cutoff or of the actual cutoff,

whichever is sooner. The statute authorizes the

tenant to deduct the amount of the security de-

posit from the last rental payment under such

circumstances.

Subchapter C, Section 92.108, forbids a tenant’s

withholding any part of the last month’s rent on

grounds the security deposit will cover the balance.

Such a withholding creates a potential claim of

three times the rent wrongfully withheld plus the

landlord’s reasonable attorneys' fees. Section 92.301,

previously described, contains an exception.

If the tenant terminates the lease, the statute still

permits the tenant to pursue judicial remedies to

recover

• the amount of the security deposit, if it was not

withheld from the last rent payment;

Third, the statute makes no reference to how the

dwelling unit (or apartment building) is metered.

Some units may not have separate meters. In such

cases, the necessary payment to avert or cure a cut-

off could be prohibitive, especially where one meter

serves an entire apartment complex.

Interruptions of Tenant's Utility Service

When may landlords interrupt a tenant’s

utility services being provided by the

landlord?

A landlord may interrupt utility services for bona

de repairs, construction or emergencies. Effective

Sept. 1, 2013, landlords may interrupt electrical

services for nonpayment of an electric bill under

the conditions discussed below in section 92.008(h).

(92.008[b]).

What does the term “utility services”

include? When may the services be

interrupted?

Prior to Sept. 1, 2013, the statute stated that the

landlord may not interrupt or cause the interruption

of water, wastewater, gas, or electric services fur-

nished to a tenant by the landlord as an incident of

the tenancy or by other agreement unless the inter-

ruption results from bona de repairs, construction

or an emergency (92.008[b]).

What are the tenant’s remedies for the

landlord’s unauthorized interruption of

utility services for other than bona de

repairs, construction or emergencies?

For a violation, the tenant may recover:

• either possession of the premises or terminate

the lease;

• a sum equal to the tenant’s actual damages;

• one month’s rent plus $1,000; and

• reasonable attorney fees and court costs.

However, any delinquent rents or other sums for

which the tenant is liable to the landlord will be

deducted from the recovery (92.008[f]).

Effective Sept. 1, 2013, how and under what

circumstances may a landlord interrupt

electric service for nonpayment of an

electric bill?

When the landlord submeters the electricity or

prorates nonsubmetered master metered electricity,

the landlord may interrupt or cause the interruption

of electric service for nonpayment of an electric bill

sent to a tenant if:

• landlord’s right to interrupt electric service is

allowed by a written lease signed by the tenant,

• tenant’s electric bill was not paid on or before

the 12th day after the date the electric bill was

issued;

• advance written notice of the proposed inter-

ruption was delivered to the tenant by mail or

by hand apart from any other written material

that prominently displays the words “Electric-

ity Termination Notice” or similar language

underlined or in bold type and includes the fol-

lowing:

a) the date on which the electric service will

be interrupted;

b) the location where the tenant may go dur-

ing the landlord’s normal business hours to

make arrangements to pay the bill to avoid

the interruption;

c) the amount that must be paid;

d) a statement that the landlord cannot apply

the payment to rent or other amounts owed

under the lease;

e) a statement that the tenant cannot be

evicted for failing to pay the electric bill

after the landlord has interrupted the elec-

tric service unless the tenant fails to pay

the bill for at least two days, not including

weekends, state or federal holidays; and

f) a description of the tenant’s rights to avoid

the interruption when a person residing in

the dwelling may become seriously ill or

may become more seriously ill because of

the interruption (92.008[h]).

When must this notice be delivered?

The notice must be delivered to the tenant no ear-

lier than the rst day after the bill is past due and no

later than the fth day before the interruption date

as stated in the notice (92.008[h]).

Are there any additional notices required

when the electric service is actually

discontinued?

Yes. At the time the service is interrupted, the

landlord must deliver or place on the tenant’s front

door a written notice that prominently displays the

words “Electricity Termination Notice” or similar

language underlined or in bold type and includes the

following:

a) the date on which the electric service was

disconnected;

b) the location where the tenant may go during

the landlord’s normal business hours to make

arrangements to pay the bill to reestablish the

electric service;

c) the amount that must be paid;

d) a statement that the landlord cannot apply any

of the payment to rent or other amounts owed

under the lease;

e) a statement that the tenant cannot be evicted

for failing to pay the electric bill after the land-

lord has interrupted the electric service unless

the tenant fails to pay the bill for at least two

days, not including weekends, state or federal

holidays; and

f) a description of the tenant’s rights to avoid

the interruption when a person residing in the

dwelling may become seriously ill or may be-

come more seriously ill by virtue of the inter-

ruption (92.008[h]).

Are there days in which the landlord is

strictly prohibited from interrupting electric

service for nonpayment of an electric bill?

Yes. Unless a dangerous condition exists or the

tenant requests a disconnection, a landlord may not

interrupt or cause the interruption of electric service

on a day:

• the landlord or a representative is not available

to collect the payment and reestablish the elec-

tric service,

• preceding a day on which a deferred payment

plan was entered with the landlord as discussed

later,

• when the previous day’s highest temperature

did not exceed 32 degrees Fahrenheit and the

temperature is predicted to remain at or below

that level for the next 24 hours, or

• on which the National Weather Service has

issued a heat advisory for the county in which

the premises is located or has issued such an

advisory on one of the two preceding days

(92.008[i]).

How can a tenant avoid the interruption

when it will seriously affect an occupant?

The tenant may avoid the cutoff if three condi-

tions are met:

1) the tenant gives the landlord notice that the

interruption may cause an occupant to become

seriously ill or may become more seriously ill.

This written notice must be submitted before

the interruption date specied in the notice

from the landlord of the pending disconnect.

2) this fact is veried by a physician, nurse, nurse

practitioner or other similar licensed health

care practitioner attending the person who is

seriously ill or may become more seriously ill.

3) the tenant entered a deferred payment plan

with the landlord (92.008[l]).

How long may this deferment of the

interruption of electric services last when it

affects the health of an occupant?

By meeting the three conditions, the landlord may

not interrupt electric service for 63 days after the

date these conditions are met or at an earlier date

agreed to by the parties (92.008[k]).

What must be included in the “Deferred

Payment Plan?”

The deferred payment plan must:

• be in writing,

• extend payments in installments of the out-

standing electric bill beyond the due date of the

next electric bill, and

• provide that the delinquent amount may be

paid in equal installments over a period of

at least three electric service billing cycles

(92.008[k]).

What if the tenant is about to receive

energy assistance for a billing period?

A landlord may not interrupt or cause the inter-

ruption of electric service to a tenant who receives

energy assistance for a billing period during which

the landlord receives a pledge, letter of intent,

purchase order, or other notication that the energy

assistance provider is forwarding sufficient payment

to continue the electric service (92.008[i]).

How quickly must the landlord restore

electric service after a delinquent bill is paid

or a deferred payment plan has been entered

during normal business hours?

Under these conditions, the landlord must recon-

nect the tenant’s electric service within two hours

(92.008[n]).

When does the statute absolutely prohibit a

landlord from interrupting electric service?

The statute prohibits a landlord from interrupting

or causing the interruption of electric service for any

of the following:

• a delinquent payment that was for service fur-

nished to a previous tenant,

• the tenant failed to pay bills other than electric

bills, rent or other fees,

• the electric bills have been delinquent for six or

more months, or

• the tenant disputes the amount of the elec-

tric bill unless the landlord has conducted an

investigation as required by the particular case

and reported the results in writing to the tenant

(92.008[o]).

May the landlord charge a reconnection

fee to reestablish service? What are the

limitations?

Yes, a reconnection fee may be charged when the

following conditions have been met:

• the interruption of the service was for nonpay-

ment of an electric bill.

• the fee is computed based on the average cost

to the landlord for the expenses associated with

the reconnection which may not exceed $10.

• the tenant agreed to the reconnection fee in a

written lease that states the exact amount, and

• the fee is not applied to a deferred payment

plan discussed earlier (92.008[r]).

How may a tenant get restoration of his

or her utility service when the landlord

interrupts them unlawfully?

If the landlord interrupts the tenant’s utility ser-

vices for any other reason than for bona de repairs,

construction or emergencies, the tenant may le a

sworn complaint with the Justice of the Peace (JP) in

the precinct where the property is located specifying

the alleged violation. In addition, the tenant must

state orally under oath the facts of the allegations

before the justice of the JP court (Section 92.091[a]

and [b]).

What happens if the justice believes the

allegations?

If the justice reasonably believes the allegations

are true, the justice may issue, ex parte (without a

hearing), a writ of restoration of the utility services

on a temporary basis pending a nal hearing (Section

92.091[c]).

How is the writ served and on whom?

The writ is served in the same manner as a writ of

possession in a forcible detainer suit on the land-

lord or the landlord’s management company, the

on-premise manager, or the landlord’s rent collector

(Section 92.091[d]).

Does the landlord have a right to a hearing

on the sworn complaint? If so, when?

The landlord is entitled to a hearing on the ten-

ant’s sworn complaint for restoration of utility

service. The notice of this right must be placed in

the writ served on the landlord. The hearing must

be held within seven days after the request is made

(Section 92.091[e]).

What if the landlord fails to request a

hearing on the tenant’s sworn complaint?

If the landlord does not request a hearing within

seven days after the date of the service of the writ,

the justice may render the landlord liable for court

costs (Section 92.091[f]).

Once the justice renders a decision on the

sworn complaint, may the judgment be

appealed?

Yes, either party may appeal the judgment on the

sworn complaint for the restoration of utility service

in the same manner as a party appeals a judgment in

a forcible detainer suit (Section 92.091[g]).

If both a writ of restoration of utility service

and a writ of possession are issued, which

controls?

A writ of possession, if issued, always supersedes

a writ of restoration for utility service (Section

92.091[h]).

What happens if the landlord or the person

on whom the writ of restoration for utility

service is served fails to immediately

comply or later disobeys the writ? What are

the legal consequences?

If the person served by the writ does not immedi-

ately comply or disobeys the writ, the person may be

held for contempt under Section 21.002 of the Texas

Government Code (Section 92.091[i]).

Note. Under Section 21.002(c) of the Government

Code, a justice court may levy a ne of not more

than $100 or three days in jail, or both, for the con-

tempt of court. Connement without bail is not an

option. Other punishments may be levied by other

courts for contempt, but subsection (c) is particular

to the justice courts. Evidently, this is the subsection

to which the statute refers.

What if the writ is disobeyed for any

reason?

The tenant or the tenant’s attorney may le an

affidavit with the court naming the person who dis-

obeyed the writ and describing the acts or omission

of disobedience (Section 92.091[i]).

How should the justice respond?

Upon receipt of the affidavit, the justice should

issue a show-of-cause order, directing the person to

appear on a designated date and show cause why the

person should not be held in contempt of court (Sec-

tion 92.091[i]).

What if the justice nds the person directly

or indirectly disobeyed the writ and is still

in violation?

If the justice nds, after considering the evidence

at the hearing, that the person directly or indirectly

disobeyed the writ, the justice may commit the per-

son to jail without bail until the person purges the

contempt action or omission in a manner and form

directly by the justice (Section 92.091[i]).

What if the person immediately disobeys

the writ but later complies after receiving

the order to show cause?

In that case, the justice may nd the person in

contempt and assess punishment under Section

21.001(c) of the Texas Government Code (92.091[i]).

Note. Under Section 21.002(c) of the Government

Code as stated earlier, a justice court may administer

a ne of not more than $100 or three days in jail, or

both, for the contempt of court. Connement with-

out bail is not an option.

What recourse does the landlord have if

the tenant led the sworn complaint for

restoration of utility service in bad faith?

If a writ is served on the landlord stemming from a

bad faith complaint, the landlord may, in a separate

cause of action, recover from the tenant (1) actual

damages, one month’s rent or $500 (whichever of the

three is greater), (2) reasonable attorney’s fee and (3)

court costs, less any sums for which the landlord is

liable to the tenant (Section 92.091[j]).

Note. The term bad faith is not dened in the

statute. Evidently, it means the complaint contains

false allegations.

What are the fees for all these legal actions?

The ling fees and service fees are as follows.

• The ling fee for a sworn complaint for resto-

ration of utility service is the same as that for

ling a civil action in the justice (JP) court.

• The fee to serve a writ of restoration of utility

service is the same as the service of a writ of

possession.

• The fee to serve a writ of a show-cause order is

the same as that for service of a civil citation

(Section 92.091[k]).

May the JP defer or waive any of the fees on

behalf of the tenant?

Yes. The JP may defer the ling fees and service

costs of the sworn complaint for restoration of

utility service and the writ for restoration of util-

ity service. Likewise, the JP may waive court costs

if the tenant executes a pauper’s affidavit (Section

92.091[k]).

Miscellaneous Landlord-Tenant Topics

Chapter 91, Texas Property Code

Chapter 91 contains four provisions that ad-

dress miscellaneous landlord-tenant topics (Section

91.001 through Section 91.005). Section 91.002 was

removed from the chapter in 1987 and renumbered

92.008, which deals with unlawful lockouts. Sec-

tions 92.019 and 92.020 were added effective Jan. 1,

2008, regarding the prerequisites for charging late

payments and providing emergency phone numbers.

Charging Late Fees

What three conditions must be satised

before a landlord may legally charge late

fees?

A landlord may charge late fees for failing to pay

rent on time only if the following three conditions

are met:

• the notice of the charge for the late fee is in-

cluded in a written lease,

• the fee is a reasonable estimate of uncertain

damages that cannot be precisely calculated

that result from the late payment by the tenant,

and

• the rent remains unpaid one full day after the

date the rent is due (92.019[a]).

What charges may be included in the late

fee?

The late fee may include an initial fee and a daily

fee for each day the rent remains unpaid (Section

92.019[b]).

What remedies do tenants have against a

landlord who violates the prerequisites for

charging a late fee?

The landlord who violates the requirements for

charging a late fee is liable to the tenant for $100,

three times the amount of the late fee charged in

violation of the statute, and the tenant’s reasonable

attorney’s fees (Section 92.019[c]).

Can the requirements imposed on the

landlord under the statute for charging a

late fee be waived by the tenant?

No. Any purported waiver of the statutory re-

quirements for imposing a late fee is void (Section

92.019[d]).

What limitations, if any, are dictated by the

statute for charging late fees?

The statute applies only to fees, charges or other

sums required under the lease for rent remaining un-

paid for one full day. It does not affect the landlord's

right to terminate the lease or take other action per-

mitted by the lease or by law. The tenant’s payment

of the fee, charge or other sum does not waive the

tenant’s rights or remedies provided by the statute

(Section 92.019[e]).

Providing Emergency Phone Number

Under what circumstances must a landlord

provide a 24-hour emergency phone

number?

Landlords who have on-site management or a

superintendent’s office for residential rental property

must provide a 24-hour telephone number for report-

ing emergencies on the leased premises that materi-

ally affect the physical health or safety of an ordi-

nary tenant. The number must be posted outside

the management or superintendent’s office (Sections

92.020[a]&[b]).

What about landlords in other situations?

Landlords who do not have on-site management

or a superintendent’s office must provide tenants a

telephone number for the purpose of reporting emer-

gencies on the leased premises that materially affect

the physical health or safety of an ordinary tenant

(Section 92.020[d]. The means is not specied in the

statute.

Are there any exceptions to the rules?

Yes. The rules do not apply or affect a local ordi-

nance governing a landlord’s obligation to provide a

24-hour emergency contact number if the ordinance

was adopted before Jan. 1, 2008, and conforms with

or is amended to conform with the requirements of

the statute (Section 92.020[c]).

Guarantor’s Liability When Lease Renewed

Does the liability of a guarantor of a

residential lease automatically continue

when the lease is renewed?

Effective Jan.1, 2010, the answer is "no" unless

certain conditions are met. Liability continues only

if the original written lease so provides. In addition,

the original lease must state the last date on which

the tenant may renew the lease for this liability to

continue.

Even then, the guarantor’s liability is effective only

if the renewal involves the same parties as the origi-

nal lease and the renewal does not increase the guar-

antor’s potential nancial obligation beyond what

existed under the original lease (Sections 92.021[a]

and [b]).

What if the renewal involves increased

rent? Can the guarantor still continue his or

her liability?

The answer is "yes" providing the guarantor vol-

untarily agrees to continue liability in a separate

written document at the time of the renewal (Sec-

tion 92.021[c]).

When does the guarantor’s liability end

under the original lease?

The statute provides that even if the guarantor

does not agree to the renewal, the guarantor is still

liable for any costs and damages that relate to the

tenant’s actions that occurred prior to the renewal or

as a result of refusing to vacate the premises (Section

92.021[d]).

Advance Notices to Terminate Leases

How much advanced notice must be given

to terminate a lease?

The notice requirements for terminating a month-

ly tenancy or a tenancy from month to month are

described in Section 91.001. The prescribed notice

requirements do not apply if:

• the landlord and tenant have agreed in an in-

strument signed by both parties to a different or

no notice provision or

• there has been a breach of contract recognized

by law.

The notice provisions for the termination of a

monthly tenancy or a tenancy from month to month

vary depending on the rent-paying period. If the

rent-paying period is at least a month, the tenancy

terminates the later of the following two dates:

• the day specied in the notice or

• one month after the day the notice is given.

It is unclear if the statutory language stating “the

day on which the notice is given” refers to the day

the notice is sent or received.

If the rent-paying period is less than a month, the

tenancy again terminates on the later of the follow-

ing two dates:

• the day specied in the notice or

• one day after the notice is given plus the num-

ber of days equal to the rent-paying period.

If the termination date does not correspond to the

start or end of a rent-paying period, the tenant is

liable for rent only up to the date of termination. In

other words, the last rent payment is prorated.

Tenants should be aware of any provisions per-

taining to notices to vacate in the lease agreement.

First, regarding monthly tenancies, Section 91.001

provides that the parties may agree in the written

lease to a different notice period than provided in the

statute. In fact, the parties can agree that no notice

to vacate is required. This may be too harsh to cer-

tain tenants.

Second, regarding longer term leases such as a

year-to-year lease, the lease agreement may require

the tenant to give a 30-day notice to vacate even

though the lease is for a given term. Failure to give

the notice before moving continues the lease beyond

the set term. Tenants may wish to modify such a

provision.

Termination of Lease

for Criminal Conviction

Can the landlord terminate a lease if the

tenant is convicted of a crime?

The landlord may terminate the lease under Sec-

tion 91.003 if the tenant or occupant, or if an agent

or employee of the tenant or occupant, uses the

property in such a way that leads to a conviction

for violating Chapter 43 of the Texas Penal Code.

(Chapter 43 deals with public indecency.) However,

the conviction alone is insufficient. Three other

requirements are necessary to terminate the lease.

These are:

• the lease or renewal was executed after June 15,

1981,

• the convicted person has exhausted or has

abandoned all avenues of direct appeal, and

• the fee owner or intermediate lessor gives writ-

ten notice within six months after the appeals

are exhausted or abandoned.

If the conditions are met, the right of possession

to the property reverts to the landlord ten days after

the notice is given. A lease provision cannot override

this statutory right of termination.

Because the term intermediate lessor is not dened,

it is unclear who can give notice besides the fee owner.

The term could include the manager or leasing agent.

Likewise, the term could include a person who sub-

leases the unit.

Tenants' Lien

When may a tenant be granted a lien?

The tenant is granted a lien on the landlord’s non-

exempt property in the event the landlord breaches

the lease agreement (Section 91.004). For the lien to

arise, the tenant must not be in default of the lease

at the time, and the landlord’s nonexempt property

must be in the tenant’s possession. The lien can-

not exceed the extent of the tenant’s damages. (See

Section 41.002 of the Texas Property Code for more

information on exempt and nonexempt personal

property.)

The treatment of the tenant’s lien is quite small in

comparison to an entire subchapter (Subchapter C

of Section 54) dedicated to the residential landlord’s

lien. In particular, there are no provisions explaining

how the residential landlord’s nonexempt personal

property may be seized and sold in lieu of the lien. The

prudent tenant would follow the same guidelines that

are imposed on landlords in Section 54.045 of the Texas

Property Code.

Is subletting permitted?

Subletting is prohibited (Section 91.005). During

the lease term, the tenant may not rent the lease-

hold to another person without the landlord’s prior

consent.

What effect does nding a satisfactory

replacement have on the landlord’s

retention of the security deposit or rent

prepayment fee?

A landlord may not withhold a security deposit or

a rent prepayment fee if the tenant secures a replace-

ment satisfactory to the landlord (Section 92.1031[a])

effective September 1, 1995. The replacement tenant

must occupy the dwelling on or before the com-

mencement date of the lease.

What happens if the landlord, not the

tenant, nds a satisfactory replacement?

If the landlord secures a replacement tenant satis-

factory to the landlord and the replacement tenant

occupies the dwelling on or before the commence-

ment date of the lease, the landlord may retain and

deduct from the security deposit or rent prepayment

either:

• a sum agreed to in the lease as a lease cancella-

tion fee or

• actual expenses incurred by the landlord in se-

curing the replacement, including a reasonable

amount for the time the landlord expended

in securing the replacement tenant (Section

92.1031[b]).

Do tenants need insurance for casualty and

theft losses of their personal property? Or,

are they automatically covered by a policy

maintained by the landlord?

Tenants need their own insurance. Only in rare

circumstances can tenants claim coverage under the

landlords' policies.

A condition for purchasing property insurance is

having an insurable interest. An insurable interest

arises when the person seeking the insurance would

suffer a nancial loss if the property were damaged

or destroyed.

Generally, the landlord has no insurable interest in

the tenant's property. Thus, the landlord's insurance

policy on the structure will not cover the tenant's

personal property. Because of the insurable-interest

factor, each tenant needs an individual policy even

though more than one tenant inhabits the same unit.

Tenants may secure protection by purchasing a

Tenants Homeowner Policy from an insurance agent.

The policy protects the tenant from casualty losses,

provides liability coverage and even affords additional

living expenses if a catastrophe forces the tenant to live

elsewhere temporarily.

Tenants need to inventory and document the ex-

tent of their possessions for proof of loss in the event

of a casualty.

Can tenants protest the appraised value of

the rent property if the landlord does not?

Some lease agreements, primarily commercial,

contractually bind the tenants to reimburse the

owners for property taxes on the leased premises. If

the Central Appraisal District increases the assessed

value, the owner-landlord has little incentive to pro-

test the increase under the circumstances.

Effective August 28, 1995, Sections 41.413 and

42.015 were added to the Texas Tax Code. The new

provisions allow tenants of real or personal property

to protest the appraised value — if the owner does

not — when the tenant is contractually obligated

to reimburse the owner for taxes. The tenant has

the same rights as the owner throughout the appeal

process.

May landlords legally limit or prohibit, in

any way, the tenant's rights to call police or

emergency assistance in response to family

violence?

Landlords may not prohibit or limit a residential

tenant's rights to summon police or other emergency

assistance in response to family violence [Section

92.015(a)].

Can this prohibition be waived in the lease

contract?

Any lease provision that purports to waive the

right to summon police or emergency assistance in

response to family violence or attempts to exempt a

person from liability for violating this prohibition is

void.

What remedies do tenants have against

landlords who attempt to violate this

restriction?

A tenant is entitled to recover, in addition to other

remedies provided by law:

• a civil penalty equal to one month's rent,

• actual damages suffered by the tenant,

• court costs,

• injunction relief, and

• reasonable attorney's fees.

If the tenant's rent is subsidized in whole or in part

by a governmental entity, "one month's rent" means

one month's fair market rent.

Tenants' Right to Terminate Lease

For Family Violence

Effective Jan. 1, 2006, Sections 92.016 and 92.017

were added to the Texas Property Code, allowing

tenants the right to terminate leases following fam-

ily violence. These were modied slightly effec-

tive Jan. 1, 2010. The changes dealt primarily with

whether the family violence was committed by a

cotenant or occupant of the dwelling. Here are the

specics.

How is "family violence" dened?

Family violence has the meaning assigned to it by

Section 71.004 of the Texas Family Code. Basically,

it means an act or threatened act by a member of

a family or household against another member of

the family or household intended to result in physi-

cal bodily harm or a sexual assault. The term also

includes abuse of a child by a member of the family

or household and dating violence.

Note. Until Jan. 1, 2010, the tenant's right to

terminate a lease for family violence required the

perpetrator to be a member of the tenant's family or

household.

What are the requirements for a tenant

to terminate the lease for family violence

committed by a family member before Jan.

1, 2010?

A tenant may terminate the tenant’s rights and

obligations under a lease, vacate the premises and

avoid liability for future rent and other sums other-

wise incurred for prematurely terminating the lease

by meeting three requirements when a family mem-

ber committed the violence.

• Getting a judge to sign either a temporary

injunction issued under Subchapter F, Chapter

6 of the Texas Family Code or getting a pro-

tective order issued under Chapter 85 of the

Texas Family Code protecting the tenant or an

occupant from family violence committed by a

cotenant or occupant of the dwelling,

• Delivering a copy of the order to the landlord,

and

• Vacating the premises (92.016[b] and [c]).

Note. After Jan. 1, 2010, the judge may sign three

different orders allowing the tenant to vacate for

family violence committed by a family member.

The rst two are the same as the two noted previ-

ously:

• a temporary injunction issued under Subchap-

ter F, Chapter 6 of the Texas Family Code,

• a protective order issued under Chapter 85 of

the Texas Family Code, or

• a temporary ex parte order issued under Chap-

ter 83 of the Texas Family Code.

Also, effective Jan. 1, 2010, the words “commit-

ted by a cotenant or occupant of the dwelling” were

added the statute. Now, family violence committed

by a cotenant or occupant of the dwelling qualies

the tenant to terminate the lease along with fam-

ily violence committed by a family or household

member.

Note. The term “occupant” is dened in Section

92.016(a)(2) as a person who has the landlord’s con-

sent to occupy the dwelling but has not obligation to

pay rent. The term “cotenant” is not dened.

Interestingly enough, the statute contains similar

requirements for the tenant to terminate the lease

when the violence is committed by a cotenant or oc-

cupant. The requirements for a tenant to terminate

the lease before Jan. 1, 2010, when a family member

committed the offense have just been described.

What are the requirements for a tenant

to terminate a lease for family violence

commented by a family member after Jan.

1, 2010?

The tenant must do the following:

• Get a temporary injunction issued under Sub-

chapter F, Chapter 6 of the Texas Family Code,

• Get a protective order issued under Chapter 85

of the Texas Family Code, or

• Get a temporary ex parte order issued under

Chapter 83 of the Texas Family Code.

Note. These are the same requirements as prior to

Jan. 1, 2010, except the third alternative listed above

has been added.

After getting the injunction, protective order or

temporary ex parte order, the tenant must:

• provide a copy of the court document to the

landlord,

• provide written notice of lease termination to

the landlord on or before the 30th day before

the lease term expires, and

• vacate the premises on the 30th day after the

notice to vacate was delivered to the landlord.

[92.016(b) and (c)].

What are the requirements for a tenant

to terminate a lease for family violence

commented by a cotenant or occupant after

Jan. 1, 2010?

The tenant must do the following:

• Get a temporary injunction issued under Sub-

chapter F, Chapter 6 of the Texas Family Code

• Get a protective order issued under Chapter 85

of the Texas Family Code.

Note. These are the same requirements listed ear-

lier except the third alternative has been deleted.

In addition to getting the injunction or protec-

tive order from the court, the tenant must:

• Deliver a copy of the court document to the

landlord and

• Vacate the premises on the 30th day after the

court document was delivered to the landlord.

[(92.016 [c-1]).

Note. When the family violence was committed

by a cotenant or occupant, the tenant does not have

to give the 30-day notice to terminate the lease as

required when the violence was committed by a fam-

ily or household member.

By complying with these procedures,

may the tenant also avoid liability for

delinquent, unpaid rent and other sums due

before terminating the lease?

The answer depends on the wording of the lease.

If the lease does not contain the following language

or its equivalent, the tenant may avoid liability for

all delinquent, unpaid rent and other sums owed the

landlord: “Tenants may have special statutory rights

to terminate the lease early in certain situations

involving family violence or a military deployment

or transfer.”

If the lease contains this language, the tenant can-

not avoid the delinquent payments (92.016[d] and [f]).

May the tenant waive his or her rights to

terminate the lease under this statute?

No. The tenant’s rights under this statute cannot

be waived. If the landlord violates any part of this

statute, the landlord is liable for actual damages,

civil penalties equal to one month’s rent plus $500

and the tenant’s attorney’s fees (92.016[g] and [f]).

Tenants' Right to Terminate Lease

for Sexual Offenses

Effective Jan. 1, 2010, Section 92.0161 was added

to the Property Code, allowing tenants to terminate

residential leases and vacate the premises without

liability if the tenants or members of their families

are victims of sexual offenses. Effective Jan. 1, 2014,

the section adds to the list of sexual offenses (1) inde-

cency with a child, (2) sexual performance by a child

and (3) an attempt to commit sexual offenses with

a child. The changes apply only to residential leases

executed or renewed on or after the effective date of

the statutes. Here are the specics.

What sexual offenses must occur? Where

must they occur? What must the tenant do

to vacate the premises without liability?

If the tenant is the victim or if the tenant is a par-

ent or guardian of a victim of:

• a sexual assault under Section 22.011 of the

Texas Penal Code,

• an aggravated sexual assault under Section

22.021 of the Texas Penal Code,

• indecency with a child under Section 21.11 of

the Texas Penal Code, eff. 1/1/14,

• sexual performance by a child under Section

43.25 of the Texas Penal Code, eff. 1/1/14,

• continuous sexual abuse of a child under Sec-

tion 21.02 of the Texas Penal Code,

• an attempt to commit any of these offenses

under Section 15.01 of the Texas Penal Code,

eff. 1/1/14,

• an offense that occurred on the premises or any

dwelling on the premises during the prior six

months, and

• the victim is a child residing with the tenant

(parent or guardian).

The tenant may terminate the lease without li-

ability by providing the landlord or its agent docu-

mentation of the assault, abuse or attempted assault

or abuse from:

a) a licensed health care services provider who

examined the victim;

b) a licensed mental health services provider who

examined or evaluated the victim;

c) an individual authorized under Chapter 420

of the Texas Government Code who provided

services to the victim; or

d) a protective order issued under Chapter 7A of

the Code of Criminal Procedure, except for a

temporary ex parte order (92.0161[b] and [c]).

What if the offense is considered “stalking”

under Section 42.072 of the Texas Penal

Code?

If the tenant is a victim or the parent or guardian

of a victim of stalking that took place during the

prior six months on the premises or at a dwelling on

the premises and the tenant wishes to terminate the

lease without liability, the tenant must provide the

landlord or its agent documentation of the stalk-

ing with a copy of a protective order issued under

Chapter 7A or Article 6.09 of the Code of Criminal

Procedure, except for a temporary ex parte order; or

documentation from:

• a licensed health care services provider who

examined the victim,

• a licensed mental health services provider who

examined or evaluated the victim,

• an individual authorized under Chapter 420

of the Texas Government Code who provided

services to the victim,

• a law enforcement incident report, or if the

report is unavailable,

• another report maintained in the ordinary

course of business by a law enforcement

agency, and

• if the law enforcement incident report or re-

cord identies the victim by means of a pseud-

onym, a copy of the completed and returned

pseudonym form as prescribed by Articles

57A.01 and 57A.02 of the Code of Criminal

Procedure shall be included (Section 92.0161[c-

1]).

What must occur for the tenant to

terminate the lease without liability?

All of the following events must take place for the

tenant to effectively terminate the lease for sexual

offenses without liability:

• tenant provided the landlord or its agent cop-

ies of all the required information previously

described;

• tenant provided the landlord a 30-day written

notice of lease termination; and

• tenant vacated the dwelling within 30 days

after the notice was given (92.00161[d]).

Exactly what liability does the tenant

avoid by complying with the statutory

requirements?

At the end of the 30 days after the notice of lease

termination was given and the tenant vacated the

premises as described, the tenant is no longer liable

for future rent or any delinquent, unpaid rent due the

landlord — with one exception. If the lease contains

the following language, the tenant cannot avoid any

delinquent, unpaid rent.

“Tenants may have special statutory rights to ter-

minate the lease early in certain situations involving

certain sexual offenses or stalking.” If so, the tenant

remains liable for delinquent, unpaid rent or other

sums owed the landlord before the lease terminated

(92.00161[b] and [g]).

What if the landlord refuses to accept the

termination of the lease when the tenant

has complied with the statute?

The landlord who violates this section is liable to

the tenant for actual damages, a civil penalty equal

to one month’s rent plus $500, and attorney’s fees

(92.0161[f]).

May the right to terminate the lease for

sexual offenses be waived by the tenant?

No (92.0161[h]).

May any of the persons who examined,

treated or evaluated a victim of a sexual

offense disclose this information?

Yes and no. The statute requires the information

be kept condential “except for a legitimate or cus-

tomary business purpose or as otherwise required by

law” (92.0161[j]).

Lease Term Following Natural Disaster

What effect does a natural disaster have on

the lease term?

Effective Jan 1, 2014, when the premises, as a prac-

tical matter, have been rendered totally unusable for

residential purposes as a result of a natural disas-

ter, the landlord may allow the tenant to move to

another rental unit owned by the landlord but may

not require the tenant to sign a lease for a longer

term than the remaining time on the original lease

(92.062).

What are some examples of a natural

disaster?

The statute refers to hurricanes, tornadoes, oods,

extended freezes or widespread windstorms as ex-

amples of a natural disaster (92.062).

Tenants' Rights to Terminate Lease

For Military Reasons

Persons entering the military and persons already

in the military who are being redeployed or facing

a permanent change of station had similar rights to

terminate leases after June 17, 2005, according to

Section 92.017. However, Section 92.017(g) discussed

below that allows military personnel the right to

avoid delinquent rent under certain circumstances

took effect Jan. 1, 2006. Here are the specics.

How are the terms “dependent,” “military

service,” and “servicemember” dened?

The denition of these terms are the same as those

contained in 50 U.S.C. Section 511. The federal law

denes the terms as follows:

Military Service – means on active duty with any

branch of the service as well as training or educa-

tion under the supervision of the U.S. preliminary to

induction into the military service.

Servicemember (Person in the Military Service)

– includes all members of the Army of the United

States, the United States Navy, the Marine Corps,

the Air Force, the Coast Guard and all officers of the

Public Health Service detailed by proper authority

for duty either with the Army or the Navy.

Dependent – not dened.

What are the requirements for a service-

member or a dependent to terminate a lease

for entering the military service?

A tenant who is a servicemember or a dependent

of a servicemember may vacate the dwelling, termi-

nate the lease and avoid liability for future rent and

all other sums caused by prematurely terminating

the lease if one of the following events occur:

• A person (or someone acting on that person’s

behalf) executes a lease and the person subse-

quently enters the military service before the

lease terminates.

• A servicemember, while in the military

service, executes a lease and later receives

orders for a permanent change of station or for

deployment with a military unit for a period of

at least 90 days (92.017[a] and [b]).

What is the procedure for terminating the

lease?

The tenant must deliver to the landlord or the

landlord’s agent a written notice of the termination

and a copy of an appropriate government document

evidencing either:

• the tenant’s entry into the military service or

• a copy of the tenant’s permanent change of

station or deployment for at least 90 days

(92.017[c]).

By complying with this procedure, when

does the termination become effective?

If the lease provides for monthly payments, the ef-

fective date for termination occurs 30 days after the

rst date of the next rent payment.

For leases that do not provide for monthly pay-

ments, the effective date is the last day of the month

in which notice to terminate is given to the landlord

as previously outlined (92.017[d]).

By complying with this procedure, may the

tenant (servicemember) also avoid liability

for delinquent, unpaid rent and other sums

due before terminating the lease?

The answer depends on the wording of the lease.

If the lease does not contain the following language

or its equivalent, the tenant may avoid liability for

all delinquent, unpaid rent and other sums owed the

landlord: “Tenants may have special statutory rights

to terminate the lease early in certain situations

involving family violence or a military deployment

or transfer.”

If the lease contains this language, then the tenant

cannot avoid the delinquent payments (92.017[f] and [g]).

May the tenant waive his or her rights to

terminate the lease under this statute for

military service?

With two exceptions, the answer is no. The

tenant’s rights under this statute cannot be waived

except as noted below. If the landlord violates any

part of this statute, the landlord is liable for actual

damages, civil penalties equal to one month’s rent

plus $500 and the tenant’s attorney’s fees (92.107[h]

and [i]).

When can the tenant waive his or her rights

under this section?

The tenant may waive his or her rights under this

section if the tenant or any dependent living with

the tenant moves into:

• base housing or

• other housing located within 30 miles of the

current dwelling that is not owned or occupied

by family or relatives of either the tenant or

the tenant’s dependent.

What are the formal requirements for an

effective waiver?

The waiver must be placed in writing in a docu-

ment separate and apart from the lease, signed by the

tenant and in compliance with federal law (92.017[j]).

What if the move was caused by a

signicant nancial loss of income?

An otherwise valid waiver is still ineffective if the

tenant and the tenant’s dependent’s move to other

housing was prompted, wholly or partly, because of

a signicant nancial loss of income caused by the

tenant’s military service (92.017[j][1] and [2].

How is the term “signicant nancial loss

of income” dened?

The term means a reduction of at least 10 percent

of the tenant’s household income caused by the

tenant’s military service (92.017[k]).

Is the landlord entitled to verication of

this signicant nancial loss of income?

Yes. A landlord is entitled to this verication

whenever the tenant:

• has signed a waiver under this section and

• moves into housing within 30 miles of the

dwelling that is not owned or occupied by

family or relatives of the tenant or the tenant’s

dependent.

What constitutes verication?

A pay stub or other statement of earnings issued

by the tenant’s employer is sufficient verication

(92.017[k]).

Tenants' Remedies When Certicate of

Occupancy Revoked

What remedies do tenants have when the

certicate of occupancy is revoked for the

dwelling?

When the certicate of occupancy is revoked by

a municipality or county for failure to maintain the

premises, a tenant not in default may recover the

following:

• the full amount of the security deposit;

• actual damages including moving costs, utility

connection fees, storage fees and lost wages;

• a pro rata return of any prepaid rent; and

• court costs and attorney fees arising from any

related cause of action against the landlord

(92.023).

Landlord's Duty to Provide

Copy of Lease

Must the landlord provide a copy of the

signed lease to the tenant?

Yes. Effective Jan. 1, 2014, within three business

days after a lease is signed, the landlord must pro-

vide a copy of the signed lease to at least one of the

tenants (92.024[a]).

What if there is more than one tenant?

If there is more than one tenant and the landlord

did not provide all the tenants a copy of the complet-

ed lease form, then the nonrecepients must submit a

written request. The landlord must provide a copy to

the nonreceptients within three business days after

receiving the written request (92.024[b]).

In what format must the copy be provided?

The landlord may comply with the statute by pro-

viding a copy of the lease [1] in a paper form, [2] in

an electronic form if requested by the tenant, or [3]

by email if the parties have communicated by email

regarding the lease (92.024[c]).

What recourse does the tenant have if the

landlord does not comply?

None whatsoever. The statute simply prohibits the

landlord from pursuing any legal action in a court of

law to enforce the lease other than for the nonpay-

ment of rent. The court shall abate any legal action,

other than for nonpayment of rent, upon a plea of

abatement by the tenant until the landlord supplies

the required copies. Otherwise, the lease remains

valid, and the landlord is free to pursue the tenant

for nonpayment of rent (92.024[c] and [d]).

Does the law apply retroactively?

No. The statute became effective Jan. 1, 2014, and

applies to all leases executed thereafter.

Landlord’s Liability for Leasing to Person

With Criminal Record

Is a landlord liable for leasing to a person

with a criminal record?

No. The landlord, the landlord’s manager or agent

is not liable for the simple act of leasing to a tenant

convicted of, or arrested or placed on deferred adju-

dication for an offense. However, the landlord may

be liable for negligence in leasing based on what is

known or should have been known about the person.

When could a landlord be liable for

negligence in leasing to such a person?

The landlord, the landlord’s manager or agent

could be liable for negligence in leasing a dwelling if

the tenant:

• was convicted of an offense listed in Section

3g, Article 42.12 of the Code of Criminal Pro-

cedure,

• has a reportable conviction or adjudicated as

dened by Article 62.091 of the Code of Crimi-

nal Procedure, and

• the landlord, the landlord’s manager or agent

knew or should have known of the conviction

or adjudication.

This section does not create a cause of action or

expand an existing cause of action (92.025).

Notice of Utility Disconnection to

Nonsubmetered Master Metered

Multifamily Property

Effective Jan. 1, 2014, Section 92.302 is amended

to address how notices of utility disconnections

must occur to Nonsubmetered Master Metered Mul-

tifamily Property. This term means an apartment,

leased or owner-occupied condominium of one or

more buildings containing at least ten dwellings that

receive electric utility service or gas utility service

that is master metered, not submetered.

The new law requires the customer whose name

the utilities are billed to notify each tenant not later

than ve days after the date the customer receives

notice of a service disconnect. The same notice must

be sent to the governing body of the municipality in

which the property is located. The notice must be

sent by certied mail.

The notice must contain the following language.

“Notice to residents of (name and address of

nonsubmetered master metered multifamily

property): Electric (or gas) service to this prop-

erty is scheduled for disconnection on (date)

because (reason for disconnections).”

By the same token, the retail electric provider or

a vertically integrated electric utility, not including

a municipally owned utility or electric cooperative,

and gas utility companies, shall send a similar notice

of a service disconnection to a municipality before

the provider disconnects service to a nonsubmetered

master metered multifamily property.

Anyone wanting to know more about the proce-

dure needs to consult the statute.

General Provisions Relating to the Residential

Landlord-Tenant Relationship

Subchapter A, Chapter 92, Texas Property Code

Subchapter A deals with various aspects of the res-

idential landlord-tenant relationship (Section 92.001

through Section 92.009). However, because Sections

92.008 and 92.009 deal directly with lockouts, they

are discussed under the next general heading. Two

new sections were added effective September 1,

1993. They deal with cash rental payments and oc-

cupancy rates.

How are terms dened?

Terms used extensively throughout Chapter 92

(Section 92.001) are dened in the Glossary.

Does Chapter 92 apply to commercial

property?

Chapter 92 applies only to the relationship be-

tween landlords and tenants of residential rental

property (Section 92.002). Commercial rental prop-

erty is covered by Chapter 93.

Who are landlord’s agents?

The landlord’s agents for the service of process are

specied in Section 92.003. The owner’s manage-

ment company is the sole agent if a written no-

tice of the name and business street address of the

company has been given to the tenant. If not, then

the owner must receive the service of process if the

owner’s name and business street address have been

furnished in writing to the tenant. If neither has

happened, then the owner’s management company,

on-premise manager or the rent collector serving the

dwelling is the owner’s authorized agent for service

of process.

The service of process should not be confused

with the delivery of notice. The service of process is

required by law for the commencement of a lawsuit.

This differs from giving the required notices indi-

cated throughout Chapter 92 as a prerequisite for

exerting or exercising a right.

What is the liability of an employee

receiving the citation for violation of a

county rule or municipal ordinance?

A service of citation is a prerequisite for enforcing

a violation of a county rule or a municipal ordi-

nance. A person employed by the owner of property

or by a company that manages the property on behalf

of the owner who receives such a citation on behalf

of his or her employer is not personally liable for

the alleged criminal or civil penalty as long as the

employee provides the property owner’s name, street

address and telephone number to the enforcement

official who issued the citation or to the official’s

superior.

This limitation of liability for employees applies

only to citations for violations related to improve-

ments to real property where the political subdivi-

sions issued a certicate of occupancy or a certicate

of completion for improvements. The statute does

not prohibit a county or municipality from issuing a

citation to an employee or contractor of the owner or

management company relating to the construction

or development of the property (Section 250.003[a]

and [b] of the Local Government Code).

What is the rule when the property owner

does not live in Texas?

If the property owner’s street address is not in this

state, then the employee or management company

is considered the owner’s agent for accepting service

of process. (Section 25.004 of the Local Government

Code).

May the landlord seek reimbursement from

a tenant for payment of a governmental

ne?

A landlord or a landlord’s manager or agent may

not charge or seek reimbursement from the land-

lord’s tenant for a ne imposed on the landlord by

a governmental entity unless the tenant or another

occupant with the tenant actually caused the dam-

age or condition on which the ne is based (Section

92.016).

What are the consequences of acting in bad

faith?

Neither the terms bad faith nor harassment are

dened by the statute (Section 92.004). However, the

statute provides that a party (either the landlord or

tenant) who les or prosecutes a suit under Subchap-

ter B (repair or closing of leasehold), D (security de-

vices), E (disclosure of ownership and management)

or F (smoke detectors) in bad faith or for purposes of

harassment is liable to the defendant for one month’s

rent plus $100 and attorneys' fees.

Even though Section 92.004 was added in 1979,

there has been no appellate case involving bad faith

or harassment.

Section 92.005 is also related to lawsuits. It per-

mits the prevailing party in a suit brought under

Subchapter B, D, E or F to recover court costs and

reasonable attorneys' fees. It does not authorize

the recovery of attorneys' fees under the same sub-

chapters for damages to property, for personal inju-

ries or for criminal acts.

May duties or remedies be waived?

Waivers or expansions of the landlord’s duties

and the tenant’s remedies are addressed in Section

92.006. Three of the waivers regarding the landlord’s

duty to repair the premises (Sections 92.006[e], [f]

and [g]) are explained at the end of the discussion of

Subchapter B in this report.

Basically, the landlord’s duty or the tenant’s rem-

edies under Subchapter C (security deposits), D, E or

G (utility cutoffs) may not be waived. However, the

landlord’s duty to inspect and repair smoke detectors

under Subchapter F may be waived only by written

agreement. The landlord’s duties and the tenant’s

remedies under Subchapters D, E and F may be en-

larged only by specic written agreement.

Where is venue?

The venue for any action brought under Chapter

92 is in the county where the premises are located

(Section 92.007).

Must a landlord accept a tenant’s rent

payment in cash?

According to Section 92.011, a landlord must accept

a tenant’s timely rent payment in cash unless a writ-

ten lease requires the tenant to pay by check, money

order or other traceable or negotiable instrument.

What records must the landlord keep of the

cash rental payment?

A landlord who receives a cash rental payment

must provide the tenant with a written receipt and

enter the payment date and amount in a record book

maintained by the landlord.

What if the landlord will not receive a cash

rental payment or render a receipt and keep

a ledger?

The tenant, a governmental entity or a civic as-

sociation acting on the tenant’s behalf may le to en-

join the landlord’s violation. The party who prevails

against the landlord may recover court costs and

reasonable attorneys’ fees. If the prevailing party is

the tenant, the tenant may also recover the greater of

one month’s rent or $500 for each violation.

How many adults may a landlord allow to

occupy a dwelling?

According to Section 92.010, the maximum

number of adults a landlord may allow to occupy a

dwelling is three times the number of bedrooms in

the dwelling.

What are the exceptions to the specied

occupancy rate?

The maximum occupancy rate may be exceeded:

• when and to the extent that state or federal fair

housing law allows a higher rate and

• when an adult is seeking temporary sanctu-

ary from family violence as dened in Section

71.01 of the Texas Family Code. However, the

excess occupancy rate for family violence can-

not exceed one month.

Who may enforce the occupancy rate

limits?

Generally, the enforcement lies with an individual

who owns or leases living space within 3,000 feet

of a dwelling in violation. A governmental entity or

civic association acting on the individual’s behalf

may also enforce the limits, but the remedies differ.

What are the remedies for a violation?

The prevailing party for enforcement of the occu-

pancy limits may enjoin the violation, recover court

costs and reasonable attorneys’ fees. A prevailing

plaintiff may recover $500 for each violation in addi-

tion to court costs and reasonable attorneys’ fees.

It is difficult to determine the difference between a

“prevailing party” and a “prevailing plaintiff.” Also,

it is unclear what each violation means.

If each violation refers to “each lawsuit," then 50

individuals living within 3,000 feet of a dwelling in

violation may each recover $500. If the term refers to

per person per day of violation, how many violations

occur when three too many adults occupy a dwelling

for 30 days? Is this one violation, three violations or

90 (3 X 30) violations?

Exactly who is an adult and what is a

bedroom?

According to the denitions in the section, an

adult means an individual 18 years of age or older.

A bedroom means an area of a dwelling intended

as sleeping quarters. The term does not include a

kitchen, dining room, bathroom, living room, utility,

closet or storage area.

Does the landlord have a duty to mitigate

rent if a tenant abandons the lease

prematurely?

For all leases, both residential and commercial,

entered on or after September 1, 1997, a landlord

has a duty to mitigate damages if a tenant abandons

the leased premises before the lease term ends. Any

lease provision that waives or exempts the landlord

from this duty is void (Section 91.006).

Where must notices be sent when the

leased premises are not the tenant's primary

residence?

If the tenant noties the landlord in writing when

the lease is signed or renewed that the leased prem-

ises is not the tenant's primary residence, and if the

tenant requests that all notices be sent to the prima-

ry residence as indicated on the notice, the landlord

must mail to that address notices of all:

• lease reductions,

• lease terminations,

• rental increases at end of lease term, and

• notices to vacate.

The notices must be sent by regular mail and are

considered given on the date of the postmark. How-

ever, notices need not be sent (mailed) if actually

hand delivered (Sections 92.012[a],[c] and [e]).

What if there is more than one tenant and

each wants a separate notice?

If there is more than one tenant on the lease, the

landlord is required to send notices to the primary

residence of only one tenant (Section 92.012[d]).

How can the tenant notify the landlord

of a change in the address of the primary

residence?

The only effective way to notify the landlord of a

change in the tenant's primary residential address is

by written notice. Oral notices are ineffective (Sec-

tion 92.012[b]).

What should the landlord do with a

deceased tenant's personal property and

security deposit?

Effective September 1, 1999, Section 92.013 was

added to the Texas Property Code addressing the fate

of a deceased tenant's personal property and security

deposit. This section was renumbered 92.014 effec-

tive September 1, 2001. Sections 92.014(a) and (b)

allows a tenant to voluntarily submit to the landlord

or the landlord may make a written request from the

tenant to:

• provide the name, address and telephone num-

ber of the person to contact in the event of the

tenant's death and

• sign a statement authorizing the designated

person to:

(a) access the premises at a reasonable time in

the landlord's or agent's presence,

(b) remove any of the tenant's property, and

any lawful deductions.

What can the landlord do when the deceased

tenant is the sole occupant of the unit?

Unless the landlord and tenant agree to a differ-

ent procedure in a written lease or other agreement

for removing, storing or disposing of the deceased's

property, the landlord may:

• remove and store the sole tenant's property,

• give possession of the stored property to the

person designated by the tenant or to any other

person lawfully entitled to it, and

• refund the security deposit to the person desig-

nated by the tenant or to any other person law-

fully entitled to it less any lawful deductions

plus the removal and storage costs (Section

92.014[c][1], [2] and [3]).

Can the landlord require the person

removing the poperty to sign for it?

The person removing the property must sign an

inventory of the property if required by the landlord

(Section 92.014[c][4]).

How long must the landlord keep the

deceased tenant's property?

The landlord may discard the removed property

after the:

• landlord has mailed a written notice to the des-

ignated person by certied mail, return receipt

requested,

• the person has failed to remove the property

after 30 days from the postmark date, and

• the landlord has not been contacted by anyone

claiming the property prior to its being

discarded (Section 92.014[c][5]).

What are the penalties for the tenant not

designating a person when requested by the

landlord?

If a tenant does not provide the name, address

and telephone number to the landlord after being

requested and furnished a copy of this subchapter

the landlord is absolved of all liability for removal,

storage, disappearance, damage or disposal of the

deceased tenant's property (Section 92.014[e]).

What are the penalties for the landlord's

noncompliance with the proper disposal

process when the tenant designates an

individual?

A landlord who knowingly disregards the disposal

process after being furnished the information re-

quired by Sections 92.014(a) and (b) shall be liable to

the deceased tenant's estate for actual damages plus

reasonable attorney's fees (Section 92.014[f] and Sec-

tion 92.005[a]).

Note. Two things must occur before the landlord

becomes liable for wrongfully discarding the de-

ceased tenant's property. The landlord must request

the written information under Section 92.014(a) and

the tenant must designate the name, address and

telephone number of the person to contact upon

death under 92.014(b).

The new law does not address the status of the

lease agreement. Does it remain in force or does the

tenant's estate remain liable for the remainder of the

lease term?

The landlord's right to remove and store the de-

ceased tenant's property arises only when the tenant

is the sole occupant. It is unclear if the same privi-

lege exists when the tenant has a roommate. By the

same token, the term "sole occupant" raises ques-

tions. Does this mean when only one tenant's name

is on the lease agreement? What if a family rents the

unit and only the husband signs the lease? Or, what

if two tenants share an apartment and one is out of

town for several months when the other dies? Does

this qualify as a sole occupant?

Removal of Property and Lockouts

Section 92.0081 and 92.009, Subchapter A, Chapter 92, Texas Property Code

Second, the tenant must be delinquent in paying

all or part of the rent.

Third, the landlord must (1) mail locally not later

than the fth calendar day before the date on which

the door locks are changed, or (2) hand-deliver to the

tenant or (3) post on the inside of the main entry

door of the tenant’s dwelling not later than the third

calendar day before the date on which the door locks

are changed, a written notice stating the:

• earliest date the landlord proposes to change

the door locks,

• amount of rent the tenant must pay to prevent

changing of the door locks,

• name and street address of the individual to

whom, or the location of the on-site manage-

ment office where, the delinquent rent may be

discussed or paid during the landlord’s normal

business hours, and

• tenant's right to receive a key to the new lock

at any hour, regardless of whether the tenant

pays the delinquent rent, which must be under-

lined or placed in bold type (Section 92.0081[d]).

May the landlord change the locks while

someone is in the apartment?

No. The landlord may not change the locks on the

door of the tenant's dwelling for nonpayment of rent

when the tenant or any other legal occupant is in the

rental unit (Section 92.001[k][1]).

How many times may the landlord change

the locks during a rental payment period?

The landlord may change the locks only once dur-

ing a rental payment period for nonpayment of rent

(Section 92.001[k][2]).

The limitation imposed by Section 92.0081(k) does

not apply to the ability of the landlord to pursue

other available legal remedies, such as eviction,

under Section 24 of the Texas Property Code (Section

92.0081[l]).

Does the lockout or prevention of the

tenant from entering the rental unit apply

to the common areas?

No. A lockout or prevention of the tenant from

entering his or her individual rental unit does not

prevent the tenant from entering a common area of

the residential rental property (Section 92.0081[e-l]).

Perhaps the most controversial subject addressed

by the 1987 and 1989 legislative sessions regarded

the residential landlord’s right to lock out tenants.

Section 92.008(d), passed during the 1987 session,

allows landlords to change locks for nonpayment

of rent. However, no remedies were provided for an

unauthorized residential lockout until 1989.

Effective January 1, 1996, Section 92.008(d) is

renumbered Section 92.0081. Sections 92.0081(a)

through 92.0081(j) are effective January 1, 1996.

What property may the landlord remove

from the tenant’s dwelling for a bona de

repair or replacement?

A landlord may not remove a door, window or

attic hatchway cover or a lock, latch, hinge, hinge

pin, doorknob or other mechanism connected to a

door, window or attic hatchway cover from prem-

ises leased to a tenant except for bona de repairs or

replacements.

A landlord may not remove furniture, xtures or

appliances furnished by the landlord and leased to a

tenant unless the landlord removes the items for a

bona de repair or replacement (Section 92.0081[a]).

When may a landlord exclude a tenant?

A landlord may not intentionally prevent a tenant

from entering the leased premises except by judicial

process unless the exclusion results from

• bona de repairs, construction or emergencies,

• removing the contents of the premises aban-

doned by a tenant, or

• changing the door locks "on the door to the

tenant's individual unit" if the tenant is delin-

quent in paying at least part of the rent (Section

92.0081[b]).

Texas case law denes abandonment as the “relin-

quishment of possession with the intent of terminat-

ing ownership but without vesting it in anyone.”

The relinquishment must be intentional, voluntary

and absolute. Mere nonuse of the property alone may

be insufficient to establish abandonment.

What three conditions are required before

the landlord may intentionally prevent a

tenant from entering the leased premises for

nonpayment of rent?

First, the right to change the locks because of non-

payment of rent must be placed in the lease agreement.

What notices must be left when a tenant is

locked out for nonpayment of rent?

If the landlord changes the door lock for the

tenant’s failure to pay rent, the landlord or agent

must place a written notice on the tenant’s front

door stating:

• the on-site location where the tenant may go 24

hours a day to obtain the new key or a tele-

phone number that is answered 24 hours a day

where the tenant may call to have a key deliv-

ered within two hours after calling,

• that the landlord must provide the new key to

the tenant at any hour, regardless of whether or

not the tenant pays any of the delinquent rent,

and

• the amount of rent and other charges for which

the tenant is delinquent (Section 92.0081[c]).

A landlord may not change the locks on the door of a

tenant’s dwelling for nonpayment of rent on or imme-

diately before a day when the landlord or other desig-

nated individual is not available or when any on-site

management office is not open for the tenant to pay the

delinquent rent (Section 92.0081[e]).

Also, the landlord who locks out a tenant for non-

payment of rent must provide the tenant with a key

to the changed lock whether or not the tenant pays

the delinquent rent (Section 92.0081[f]).

What if the tenant is absent when the

landlord arrives with the new key?

If a landlord arrives at the dwelling in a timely

manner (within two hours) in response to a tenant’s

telephone call to the number given in the notice

and the tenant is not present to receive the key to

the changed lock, the landlord may leave a notice

on the front door of the dwelling stating the time

the landlord arrived with the key and the street

address where the tenant may go to obtain the key

during the landlord’s normal office hours (Section

92.0081[g]).

What are the tenant’s judicial remedies if

the landlord violates these provisions?

The tenant may:

• either recover possession of the premises or

terminate the lease and

• recover from the landlord a civil penalty of one

month’s rent plus $500, actual damages, court

costs and reasonable attorney’s fees in an action

to recover property damages, actual expenses

or civil penalties, less any delinquent rent or

other sums for which the tenant is liable to the

landlord (Section 92.0081[h]).

If the landlord requires the tenant to pay the de-

linquent rent as a condition for getting the new key,

the tenant may recover an additional civil penalty

of one month’s rent to the one listed above [Section

92.0081(i)].

Can any of these landlord requirements be

waived?

A provision of a lease that purports to waive a

right or to exempt a party from a liability or duty

under this section is void (Section 92.0081[j]).

How may tenant regain possession?

The tenant’s means of judicially regaining posses-

sion of the premises is addressed in Section 92.009.

If the tenant has been locked out in violation of Sec-

tion 92.0081, the tenant may recover possession by

ling a sworn complaint for reentry with the justice

court in the precinct where the premises are located.

The tenant also must state orally under oath to the

justice the facts of the alleged unlawful lockout.

If the justice reasonably believes that an unlawful

lockout has occurred, the justice may issue, ex parte

(see Glossary), a writ of reentry. The writ of reentry

must be served on either the landlord or the land-

lord’s management company, on-premises manager

or rent collector. The writ entitles the tenant to im-

mediate, but temporary, possession of the premises

until a nal hearing on the tenant’s sworn complaint

can be heard.

The writ must notify the landlord of the right to a

hearing on the tenant’s sworn complaint for reentry.

The hearing must be held no earlier than the rst

day and no later than the seventh day after the date

the landlord requests it. However, if the landlord

fails to request a hearing before the eighth day after

the service of the writ, a judgment for court costs

may be rendered against the landlord.

If a hearing on the tenant’s sworn complaint for

reentry is held, either party may appeal the court’s

nal judgment in the same manner as an appeal in

a judgment in a forcible detainer suit. (See pages 53

and 54.) However, a writ of possession supersedes

a writ of reentry. This means that even if the ten-

ant has served the landlord with a writ of reentry,

the landlord may prevail and evict the tenant by

obtaining a writ of possession. The landlord’s writ of

possession is superior to the tenant’s writ of reentry.

(See page 51 for a discussion of a writ of possession.)

What are sanctions for ignoring writ of

reentry?

The sanctions the justice may impose on the

party disobeying the writ of reentry are discussed

in Section 92.009(i). If the person on whom the writ

is served fails to comply immediately or later dis-

obeys the writ, the justice may hold the person in

contempt of court under Section 21.002 of the Texas

Government Code or have the person jailed without

bond.

Before either sanction may be imposed, the ten-

ant or the tenant’s lawyer must le an affidavit with

the court stating both the name of the person who

disobeyed the writ and the acts or omissions consti-

tuting the disobedience. The justice, after receiving

the affidavit, shall issue a show-cause order direct-

ing the landlord (or the person disobeying the writ)

to appear and show cause why he or she should not

be adjudged in contempt of court. After considering

the evidence presented at the hearing, the justice

may commit the person to jail without bail until the

person is purged of the contempt as the justice may

dictate.

However, if the person initially disobeys the writ

but later complies after receiving the show-cause or-

der, the justice may still nd the person in contempt

and assess punishment under Section 21.002(c) of the

Texas Government Code.

The punishment for contempt of a justice court

under Section 21.002(c) is a ne of not more than

$100 or connement in the county or city jail for not

more than three days, or both.

Does the tenant have other remedies?

The tenant’s remedies for an unlawful lockout are

not limited to seeking a writ of reentry and having

the offender held in contempt and placed in jail. The

tenant also may pursue the civil remedies specied

in Section 92.008(e) as follows:

• either recover possession (under the writ of

reentry) or terminate the lease and

• recover an amount equal to the tenant’s actual

damages, one month’s rent or $500–whichever

is greater–reasonable attorneys' fees and court

costs, less any delinquent rents or other sums

for which the tenant is liable to the landlord.

The only reason a landlord would resort to a

lockout is to locate an elusive tenant. The statutes

effectively preclude this as a means to collect rent.

Does the landlord have other remedies?

The landlord, however, is allowed similar remedies

if the tenant in bad faith les a sworn complaint for

reentry that results in a writ of reentry being served

(Section 92.009k). Here, the landlord may recover

from the tenant, in a separate action, an amount

equal to actual damages, one month’s rent or $500

whichever is greater reasonable attorneys' fees and

court costs, less any sums for which the landlord is

liable to the tenant.

By requiring the landlord to recover damages in a

separate action, the legislature took away the conve-

nience of a landlord’s attempting to recover damages

at the hearing on the right of reentry. Instead, the

landlord must le a separate cause of action against

the tenant.

How much are ling fees?

The ling fees for the various legal actions associ-

ated with residential lockouts are set by statute. The

ling fee for a sworn complaint for reentry by the

tenant is $15 (Section 118.121, Texas Local Govern-

ment Code). This is the same as the ling fee for a

civil action in the justice court.

The fees for serving a writ of reentry and for

serving a show-cause order are set annually by the

commissioners court (Section 118.131, Texas Local

Government Code). If the commissioners court fails

to set them for any one year, the fees for the services

of the sheriff and constables become those in effect

on August 31, 1981. They generally range around

$35.

The justice may defer payment of the ling fees

and service costs. However, the court costs may be

waived entirely if the tenant les an “Affidavit of

Inability” (a type of pauper’s affidavit) with the court

according to Rules 145 and 523 of the Texas Rules of

Civil Procedure.

One of the reasons that the justice may defer l-

ing fees and service costs is that the tenant’s wallet,

checkbook or cash may be locked inside the rental

unit. Only after a writ of reentry has been issued can

the tenant access funds to pay the court costs.

Finally, the rights of a landlord or tenant in a forc-

ible detainer or forcible entry and detainer action

under Chapter 24 of the Texas Property Code are not

affected by Section 92.009. In other words, a landlord

will prevail in an eviction suit when faced with the

tenants attempt to regain possession under a writ of

re-entry.

Residential Landlord’s Duty to Install

and Maintain Security Devices

Subchapter D, Chapter 92, Texas Property Code

The 73rd Texas Legislature repealed the existing

Subchapter D of the Texas Property Code and re-

placed it with new sections 92.151 through 92.170

effective September 1, 1993. The new subchapter

phases in mandatory security devices by January 1,

1995.

The security devices are divided into two cat-

egories: (1) those that the landlord must install at

the landlord’s expense without the tenant’s request

[Section 92.153] and (2) those that the landlord must

install at the tenant’s request at the tenant’s expense

[Section 92.157]. The landlord's duty to maintain, re-

pair and replace the devices varies with the two cat-

egories. Also, the tenant's remedies for a landlord's

breach vary with the categories.

Sections 92.164 through 92.166 deal with the

tenant’s remedies for the landlord’s failure to com-

ply. The most unique remedy is the ability of the

tenant to install or repair and deduct the costs from

next month’s rent (Section 92.166).

The denitions are essential to understanding the

subchapter. The term dwelling (and the subchapter)

applies to a room in a dormitory or rooming house

(unless excluded by the next sentence); a mobile

home; a single-family house, duplex or triplex; and a

living unit in an apartment, condominium, coopera-

tive or townhome project. The term (and the sub-

chapter) does not apply to a room in a hotel, motel,

inn or to similar transient housing or to residential

housing owned or operated by a public or private

college or university accredited by a recognized ac-

crediting agency as dened under Section 61.003 of

the Texas Education Code, to residential housing

owned or operated by preparatory schools accredited

by the Texas Education Agency, a regional accred-

iting agency or any accrediting agency recognized

by the commissioner of education or a temporary

residential tenancy created by a contract for sale in

which the buyer occupies the property before closing

or the seller occupies the property after closing for a

specic term not to exceed 90 days (Section 92.152).

While it appears a quadraplex should be included,

it is not referenced directly.

The term security device and 15 other terms used

throughout the subchapter are dened in Section

92.151 (see Glossary). They include doorknob lock,

door viewer, exterior door, French door, keyed dead

bolt, keyless bolting device, landlord, multiunit

complex, possession of a dwelling, rekey, security

device, sliding door handle latch, sliding door pin

lock, sliding door security bar, tenant turnover date

and window latch.

The term dead bolt lock is no longer used or refer-

enced in this subchapter after September 1, 1993.

What security devices must the landlord

install without the tenant’s request and at

the landlord’s expense?

Effective January 1, 1996, certain security devices

must be installed by the landlord (Section 92.153).

No longer are the installations dependent upon the

commencement or completion date of the building.

Still, however, the tenant must rst be in possession

of the dwelling.

All dwellings must be equipped with the following

security devices on January 1, 1996:

• a window latch on each exterior window,

• a doorknob lock or keyed dead bolt on each

exterior door,

• a sliding door lock on each exterior sliding glass

door,

• a sliding door handle latch or a sliding door

security bar on each exterior glass door of the

dwelling, and

• a keyless bolting device and a door viewer on

each exterior door of the dwelling.

What about dwellings with French doors?

If the dwelling has French doors, one of the pair

must meet the requirements listed earlier in Section

92.153(a) depending on the completion date. The

other door must have either:

• a keyed dead bolt or keyless bolting device

capable of insertion into the doorjamb above

the door and a keyless bolting device capable of

insertion into the oor or threshold, each with

a bolt having a throw of one inch or more, or

• a bolt installed inside the door and operated

from the edge of the door, capable of insertion

into the doorjamb above the door, and another

bolt installed inside the door and operated from

the edge of the door capable of insertion into

the oor or threshold. Each bolt must have a

throw of three-fourths inch or more (Section

92.153[b]).

Are there any exceptions for the installation

of a keyless bolting device?

A keyless bolting device need not be installed at

the landlord’s expense on an exterior door if:

• the dwelling is part of a multiunit complex in

which the majority of dwelling units are leased

to tenants who are more than 55 years of age or

who have a physical or mental disability,

• the tenant or occupant in the dwelling is more

than 55 years of age or has a physical or mental

disability, and

• the landlord is expressly required or permit-

ted to periodically check on the well-being or

health of the tenant as a part of a written lease

or other written agreement (Section 92.153[e]).

Effective September 1, 1995, a keyless bolting

device is not required to be installed at the landlord’s

expense if the tenant or occupant:

• is older than 55 or has a physical or mental dis-

ability,

• requests, in writing, that the landlord deacti-

vate or not install the keyless bolting device,

and

• certies in the request that the tenant or oc-

cupant is older than 55 or has a physical or

mental disability.

The request must be a separate document and may

not be included as part of a lease agreement. A land-

lord is not exempt as provided by this subsection if

the landlord knows or has reason to know that the

requirements of this subsection are not fullled (Sec-

tion 92.153[f]).

Are there any exceptions for the installation

of a keyed dead bolt or a doorknob lock?

A keyed dead bolt or a doorknob lock need not

be installed at the landlord’s expense on an exterior

door if at the time the tenant agrees to lease the

dwelling:

• at least one exterior door usable for normal en-

try into the dwelling has both a keyed dead bolt

and a keyless bolting device installed in accor-

dance with the height, strike plate and throw

requirements of Section 92.154 and

• all other exterior doors have a keyless bolting

device installed in accordance with the height,

strike plate and throw requirements of Section

92.154 (Section 92.153[g]).

What remedies are available to a tenant

when the landlord falsely claims one of the

foregoing exceptions as the reason for not

installing a keyless bolting device?

According to Section 92.153(i), a landlord who

knowingly deactivates or does not install a keyless

bolting device and falsely claims that one of the ex-

ceptions applies is subject to the tenant remedies set

forth in Section 92.164(a)(4).

How long must the security devices remain

operable?

All required security devices must remain operable

throughout the time a tenant is in possession of the

dwelling. However, a landlord may deactivate or re-

move the locking mechanism of a doorknob lock or

remove any device not qualifying as a keyless bolting

device if a keyed dead bolt has been installed on the

same door (Section 92.153[h]).

According to Section 92.157(c), if a security de-

vice required by Section 92.153 to be installed on

or after January 1, 1995, without the necessity of a

tenant’s request, has not been installed, the tenant

may request the landlord to immediately install it.

Thereafter, the landlord shall comply immediately

with the request at the landlord’s expense. It appears

the requirement should be placed either in Section

92.164 that deals with the remedies for a breach of

Section 92.153 or here in Section 92.153.

What are the height, strike plate and throw

requirements for keyed dead bolts or

keyless bolting devices?

According to Section 92.154, either a keyed dead

bolt or a keyless bolting device must be at a height

between 36 inches and 54 inches from the oor if

installed before September 1, 1993, or between 36

inches and 48 inches if installed after September 1,

1993 (Section 92.154[a]).

Likewise, the strike plates must be:

• screwed into the portion of the doorjamb sur-

face that faces the edge of the door when the

door is closed or

• installed in a door with a metal doorjamb that

serves as the strike plate.

The strike plate requirements apply only to the

two types of “keyless dead bolts” as described in sec-

tions (A) and (B) of the Glossary denition.

Finally, a keyed dead bolt or a “keyless dead bolt”

as described in section (A) of the Glossary denition

must have a bolt with a throw of no less than one

inch if installed on or after September 1, 1993.

The height, strike plate and throw requirements

do not apply to a keyed deadbolt or a keyless bolting

device installed in one door of a pair of French doors

discussed earlier in Section 92.153(b).

What are the height requirements for a

sliding door security device?

A sliding door pin lock or a sliding door security

bar must be installed at a height not higher than 54

inches from the oor if installed before September 1,

1993, or not higher than 48 inches if installed on or

after September 1, 1993 (Section 92.155).

When must the landlord rekey or change a

security device operated by a key, card, or

combination?

A security device operated by a key, card, or com-

bination must be rekeyed by the landlord at the land-

lord’s expense not later than the seventh day after

each tenant’s turnover date (Section 156[a]).

Thereafter, the landlord must rekey or change

the security devices at the tenant’s expense when

requested by the tenant (Section 156[b]).

However, the expense of rekeying security devices

when the landlord changes the master key must be

borne by the landlord (Section 156[c]). The rekeying

requirements apply only to exterior doors. Locks on

closet and other interior doors are excluded (Section

156[c]).

Who bears the cost of rekeying security

devices when a tenant vacates the premises

in breach of a written lease?

The tenant does when the written lease states that

the landlord may deduct from the tenant’s secu-

rity deposit the reasonable cost incurred to rekey a

security device required by the section. The provi-

sion must be underlined or printed in boldface type

(Section 156[d]).

What legal recourse do tenants have when

the landlord violates Section 92.156(a) by

failing to rekey or change a security device

within seven days after a tenant’s turnover?

The remedies are set forth in Section 92.164(a)

described later.

What security devices must the landlord

install at the tenant’s request and expense?

At the tenant’s request and expense, the landlord

must install a keyed dead bolt on an exterior door if

the door presently has:

• a doorknob lock but not a keyed dead bolt, or

• a keyless bolting device but not a keyed dead

bolt or doorknob lock, and

• a sliding door latch or sliding door security bar

if the door is an exterior sliding glass door that

lacks either of these devices (Section 92.157[a]).

However, if the dwelling was constructed before

September 1, 1993, and the tenant made the request

before January 1, 1995, the landlord must install on

an exterior door at the tenant’s expense:

• a keyless bolting device if the door lacks one

and

• a door viewer if the door lacks one (Section

92.157[b]).

Any security device required by Section 92.153

must be installed immediately upon the tenant’s

request and at the landlord’s expense (Section

92.157[c]).

Who has the duty to repair or replace the

security devices?

The landlord shall repair or replace a security

device when requested or notied by the tenant that

the device is inoperable or needs repair or replace-

ment. The duty continues during the lease term and

throughout any renewal period (Section 92.158).

This requirement is somewhat confusing in light

of Section 92.153 (g) discussed earlier. Section 92.153

(g), dealing with the security devices that must be in-

stalled at the landlord's expense without the tenant's

request, requires those devices to be kept operable

throughout the time the tenant has possession. Sec-

tion 92.158 (above) requires the landlord to repair or

replace security devices only after being notied by

the tenant. By implication, Section 92.158 applies to

the security devices that the landlord must install at

the tenant's request and expense.

How must the request or notication be

given to the landlord?

The tenant’s request or notice for repairs or re-

placement may be communicated orally unless a

written lease stipulates that it must be in writing.

However, the lease provisions must be underlined or

in bold face print to be effective (Section 92.159).

Who chooses the type, brand and manner of

security device installation?

The landlord may select the type, brand and man-

ner of installation, including placement of a security

device, unless otherwise provided by this subchapter

(Section 92.160).

How soon must the landlord respond to a

tenant’s request or notice to rekey, change,

install, repair or replace a security device?

A landlord must comply with the tenant’s request

within a reasonable time but never later than the

seventh day after the tenant’s request is received

(Section 92.161[a]).

How soon must the landlord respond to a

tenant’s request under Sections 92.156(a)

and 92.157(a)(b) after the required advance

payment has been received?

The landlord again must comply within a reason-

able time, but never later than seven days after both

the request and the advance payment have been

received (Section 92.161[b]).

However, there is an exception to the seven-day

maximum response time. A reasonable time shall

mean no later than 72 hours, if, at the time the land-

lord receives the request and advance payment, the

tenant informs the landlord that:

• an unauthorized entry occurred or was attempt-

ed in the tenant’s dwelling,

• an unauthorized entry occurred or was attempt-

ed within the multiunit complex where the

tenant lives during the two months preceding

the request date, or

• a crime of personal violence occurred within

the multiunit complex where the tenant lives

during the two months preceding the request

date (Section 92.161[c]).

Are there any exceptions to the “seven-

day, reasonable-time” landlord response

as directed under Sections 92.161(a) and

92.161(b)?

The landlord may be excused from the seven-day

time limits if, despite the landlord’s diligence:

• the landlord did not know of the tenant’s re-

quest through no fault of the landlord,

• materials, labor or utilities were unavailable, or

• a delay was caused by circumstances beyond

the landlord’s control, including the illness

or death of the landlord or a member of the

landlord’s immediate family (Section 92.161[d]).

The response times specied in Section 92.161

apply only when the tenant must make a request

or both a request and an advance payment. The

response times do not apply when the landlord is

required to install or rekey a security device without

the tenant’s request or payment (Section 92.161[e]).

Who has to pay for the repair or

replacement of a security device?

A landlord may not require a tenant to pay for the

repair or replacement of a security device that mal-

functions because of “normal wear and tear” (Sec-

tion 92.162). (See Glossary for denition.) However,

a landlord can require a tenant to pay if the following

two conditions are met:

• an underlined provision in a written lease au-

thorizes it and

• the security device was misused or damaged by

the tenant, a member of the tenant’s family, an

occupant or a guest.

A security device is presumed to have been mis-

used or damaged by the tenant, a family member, an

occupant or guest if it occurs during the tenancy’s

occupancy. The tenant has the burden of proving

that the misuse or damage was caused by another

(Section 92.162[b]).

If the tenant is liable, can the landlord

require a tenant to pay in advance for the

repair or replacement?

If the tenant is liable, the landlord can require ad-

vance payment for the costs of repair or replacement

when:

(1) the written lease authorizes the advance pay-

ment,

(2) the landlord noties the tenant within a

reasonable time after the tenant requests the

repair or replacement that an advance pay-

ment is required, and

(3) the tenant is more than 30 days delinquent

in reimbursing the landlord for other autho-

rized payments for repairing or replacing a

security device or the tenant requested that

the landlord repair the same device during

the prior 30 days and the landlord had com-

plied (Section 92.162[c]).

How much can the landlord charge for

repairing, installing, changing or rekeying a

security device when authorized?

The landlord may not charge more than a third-

party contractor would charge for the material, labor,

taxes and extra keys. However, if the landlord’s em-

ployees performed the work, the charge may include

reasonable overhead but no prot to the landlord.

If a management company’s employees perform

the work, the charge may include reasonable over-

head and prot but may not exceed the normal cost

charged to the owner (Section 92.161[d]).

Who must ultimately bear the costs for the

installations and repairs of security devices

if the tenant is not liable and the owner

does not manage the dwelling?

The owner of a dwelling must reimburse a man-

agement company, managing agent or on-site manag-

er for costs expended in complying with this sub-

chapter. A management company, managing agent

or on-site manager may reimburse itself for the costs

from the owner’s funds in its possession or control

(Section 92.161[e]).

Who owns the security devices after they

are installed? Can the tenant ever remove

them?

A security device that is installed, changed or

rekeyed under this subchapter becomes a xture of

the dwelling and belongs to the owner. Except where

a tenant repairs the device and deducts the costs

from rent as prescribed (see p. 32), a tenant may not

remove, change, rekey, replace or alter a security de-

vice or have it removed, changed, rekeyed, replaced

or altered without permission of the landlord (Sec-

tion 92.163).

What remedies do tenants have if a landlord

fails to install or rekey the security devices

as required by Section 92.153 or 92.156(a)?

If a landlord does not comply with the installa-

tion of security devices required without the tenant

having to request them (Section 92.153) or, if the

landlord does not rekey a security device operated by

a key, card, or combination within seven days after a

tenant’s turnover date (Section 92.156[a]), the tenant

may:

(1) install or rekey the security device as re-

quired by this subchapter and deduct the

reasonable cost of material, labor, taxes and

extra keys from the tenant’s next rent pay-

ment, in accordance with Section 92.166

discussed later;

(2) serve a written request for compliance on the

landlord, and, if the landlord does not com-

ply on or before the third day after the date

the notice is received, unilaterally terminate

the lease without court proceedings;

(3) le suit against the landlord without serving

a request for compliance and obtain a judg-

ment for:

• a court order directing the landlord to

comply if the tenant is in possession of

the dwelling,

• the tenant’s actual damages,

• court costs, and

• attorneys’ fees except in suits for recovery

of property damages, personal injuries, or

wrongful death, and

(4) serve a written request for compliance on the

landlord and, if the landlord does not comply

on or before the third day after the date the

notice is received, le suit against the land-

lord and obtain a judgment for:

• a court order directing the landlord to

comply and bring all dwellings owned by

the landlord into compliance if the tenant

serving the written request is in posses-

sion of the dwelling,

• the tenant’s actual damages,

• punitive damages if the tenant suffers

actual damages,

• a civil penalty of one month’s rent plus

$500,

• court costs, and

• attorneys’ fees except in suits for recovery

of property damages, personal injuries or

wrongful death (Section 92.164[a]).

Can the landlord extend compliance time

from three days to seven for either the

second or fourth described remedy?

The landlord may increase the compliance period

from three to seven days if the written lease pro-

vides, in underlined or boldface print, that:

(1) the landlord at the landlord’s expense is

required to equip the dwelling, when the ten-

ant takes possession, with all the security de-

vices described in Section 92.153(a), depend-

ing on the completion date of the dwelling.

(2) the landlord is not required to install a door-

knob lock or keyed dead bolt at the land-

lord’s expense if the exterior doors meet the

requirements of Section 92.153(f),

(3) the landlord is not required to install a key-

less bolting device at the landlord’s expense

on an exterior door if the landlord is express-

ly required or permitted to periodically check

on the well-being or health of the tenant as

provided by Section 92.153(e)(3), and

(4) the tenant has the right to install or rekey

a security device required by this subchap-

ter and deduct the reasonable cost from the

tenant’s next rent payment, as provided by

Section 92.166 and 92.164(a)(1).

Even though the written lease complies with the

noted requirements, it will not extend the compli-

ance time from three to seven days if, at the time the

tenant served the written request for compliance,

the tenant informed the landlord that an unauthor-

ized entry occurred or was attempted or a crime of

personal violence occurred in the tenant’s dwelling,

or in another unit in the multiunit complex where

the tenant lives during the two months preceding

the date of the request.

However, the seven-day requirement for the

landlord’s compliance is still effective if, even in the

face of the landlord’s diligence:

• the landlord did not know of the tenant’s re-

quest through no fault of the landlord,

• materials, labor or utilities were unavailable, or

• a delay was caused by circumstances beyond

the landlord’s control, including the illness

or death of the landlord or a member of the

landlord’s immediate family (Section 92.164[c]).

What defenses does a landlord have for

failing to install or rekey certain security

devices under Section 92.164?

For violating Section 92.164, a landlord can defend

an action by proving:

• the tenant had not fully paid all the rent due

on the date the tenant gives a request under

Section 92.157(c) or gives notice under Section

92.164 or

• the tenant has not fully paid the costs autho-

rized by Section 92.162 and requested by the

landlord on the date the tenant terminates the

lease or les suit (Section 92.1641).

What remedies do tenants have if a landlord

fails to install or rekey, change, add, repair

or replace a security device as required by

Sections 92.156(b), 92.157 or 92.158?

If the landlord does not comply with a tenant’s

request under Sections 92.156(b), 92.157 or 92.158

within the three-day or possibly the seventh day, the

tenant may recover:

• a civil penalty of one month’s rent plus

• court costs, and

• attorneys’ fees except in suits for recovery of

property damages, personal injuries or wrongful

death (Section 92.165).

Exactly how does the repair-and-deduct

provision work?

If the landlord does not respond within a reason-

able time to the tenant’s request to install, repair,

change, replace or rekey a required security device

under Sections 92.156, 92.157, 92.158 or other appli-

cable sections, the tenant may install, repair, change,

replace or rekey the security device and deduct the

cost from next month’s rent (Section 92.166). The

tenant must advise the landlord, when the reduced

rent payment is tendered, the reason for the rent

deduction.

In addition, unless otherwise provided in a written

lease, a tenant shall provide one duplicate key to any

key-operated security device installed or rekeyed by

the tenant within a reasonable time after the land-

lord makes a written request.

What defenses, if any, does a landlord have

when the tenant unilaterally terminates

the lease or les a lawsuit under Section

92.165?

The landlord has a defense to either remedy if the

tenant has not fully paid the costs requested by the

landlord and authorized by this subchapter. It is

unclear, though, whether the defense is a complete

defense or one allowing an offset (Section 92.167[a]).

What defenses, if any, does either a

management company or a managing agent

(who is not the owner of a dwelling and has

not purported to be the owner in the lease)

have against liability for a lawsuit led

under either Section 92.164 or 92.165?

According to Section 92.167(b), it is a defense to

liability if, (1) before the date the tenant took posses-

sion or (2) before the date the tenant requested the

installation, repair, replacement, change or rekeying

and (3) before any property damage or personal injury

to the tenant occurred, the management company or

managing agent:

(1) did not have any funds of the owner in its

possession or control with which to comply

with the tenant’s requests,

(2) had made written request to the owner by

certied mail, return receipt requested, to

provide necessary funds to allow installation,

repair, change, replacement or rekeying of

security devices as required under this sub-

chapter, and

(3) provided the tenant with a written notice

no later than the third day after the date of

receipt of the tenant’s request:

• stating that the management company

or managing agent has no owner funds as

described in number 1 above and also has

complied with number 2 in making the

written requests,

• stating that the owner has not provided or

will not provide the necessary funds, and

• explaining the remedies available to the

tenant for the landlord’s failure to comply.

What recourse does a tenant have after

receiving the written notice from the

management company?

According to Section 92.168, a tenant may unilat-

erally terminate the lease or exercise other remedies

under Sections 92.164 and 92.165 after receiving

written notice from a management company that

the owner of the dwelling has not provided or will

not provide funds to repair, install, change, replace or

rekey a security device as required by this subchapter.

The section describes what a tenant may do after

receiving the notice from a management company.

Nothing is said about receiving the notice from a

managing agent.

To whom may the tenant give required

notices when a landlord is not available?

A managing agent or an agent to whom rent is

regularly paid, whether residing or maintaining an

office on-site or off-site, is the agent of the landlord

for purposes of notice and other communications

required or permitted by this subchapter (Section

92.169).

How does this subchapter interact with the

common law duties the landlord may have?

Also, how does it interact with municipal

ordinances?

The duties of a landlord and the remedies of a

tenant under this subchapter are in lieu of common

law, other statutory law and local ordinances relat-

ing both to a residential landlord’s duty to install,

change, rekey, repair or replace security devices

and a tenant’s remedies for the landlord’s failure

to install, change, rekey, repair or replace security

devices. However, a municipal ordinance adopted

before January 1, 1993, requiring the installation of

security devices at the landlord’s expense at a date

earlier than the ones required by this subchapter

shall control. This subchapter does not affect a duty

of a landlord or a remedy of a tenant under Subchap-

ter B regarding habitability (Section 92.170).

What if a landlord received a request or

notication involving security devices

before September 1, 1993, the effective date

of this law?

The changes made by House Bill 1368 to

Subchapter D became effective September 1, 1993.

It applies only to a tenant’s request for installation,

change, rekeying, repair or replacement of security

devices at a dwelling on or after that date.

A tenant’s request for installation, change, rekey-

ing, repair or replacement of security devices at a

dwelling made to a landlord before the effective date

is covered by the law in effect when the request was

made, and the former law is continued in effect for

this purpose.

Subchapter E, Section 92.201 through Section

92.208, deals with the landlord’s duty to disclose

the ownership and management of a dwelling unit.

The following changes were made by the 74th Texas

Legislature, effective January 1, 1996.

When must the disclosure be made and to

whom?

The disclosure of ownership and management

must be made at a certain time according to a specif-

ic procedure (Section 92.201). Generally, the disclo-

sure must be made on or before the seventh day after

the landlord receives a request from either a tenant

or any government official or employee acting in an

official capacity for the information.

How must the information be disclosed to a

tenant?

The landlord must either give the information to

the tenant in writing or post the information con-

tinuously and in a conspicuous place at one of the

following:

• in the tenant’s dwelling,

• in the office of the on-site manager, or

• on the outside of the entry door to the office of

the on-site manager.

To avoid the tenant’s request later, the landlord

may include the information in the tenant’s lease or

in the written rules given to the tenant at the begin-

ning of the lease. Likewise, by continuously post-

ing the information in the three conspicuous places

mentioned in Section 92.201, the landlord need not

comply with the tenant’s request for the same infor-

mation at a later date.

However, if the information subsequently changes,

it may be corrected by any of the described methods

required for the initial disclosure.

The landlord must disclose the name and street

address (or post office address) of the title holder of

record of the dwelling to the tenant or to the govern-

ment official or employee.

Also, the landlord must disclose the name and

street address of any off-site manager if the off-site

manager is primarily responsible for managing the

dwelling.

How must the same information be

disclosed to a government official or

employee?

The landlord must give the information in writing

to the official or employee on or before the seventh

Residential Landlord’s Duty to Disclose Ownership

and Management of Rental Unit

Subchapter E, Chapter 92, Texas Property Code

day after the date the landlord receives the request

(Section 92.201[d])].

What is landlord’s liability?

The landlord is liable for not providing the in-

formation within seven days after it is requested

(Section 92.202). However, no liability arises until a

second notice is given. The second notice must be

in writing and state that the tenant or governmental

body may exercise the remedies provided in Section

92.205 if the information is not provided in eight

days.

The initial request for the information must be in

writing if the written lease so requires. All requests

by government officials or employees must be in

writing.

The landlord is liable for not correcting informa-

tion given to the tenant (but not to governmental

officials or employees) concerning either the title

owner of record (as evidenced by the county deed

records) or the off-site manager (Section 92.203).

However, liability arises only if the following condi-

tions are met:

• The initial information has become inaccurate.

• The initial information was given to the tenant

either by posting or inclusion in the lease or

in supplemental rules provided when the lease

began.

• The tenant makes written demands for the cor-

rect information to be provided within seven

days or else the tenant will pursue the rem-

edies provided by Section 92.205.

It is difficult to understand how a tenant is to

know when the initial information changes or when

to ask for an update if it is incorrect. Apparently,

this section becomes relevant only after the tenant

attempts to reach the owner or off-site manager and

nds the initial information incorrect or obsolete.

The landlord is forbidden from willfully providing

the tenant incorrect information about the unit’s

ownership and management (Section 92.204). Like-

wise, the landlord may not willfully fail to correct

the information when the landlord knows or real-

izes it is incorrect. However, the term willful is not

dened by the statute.

The purpose of this subchapter is twofold. First, it

assists the tenant in nding the owner for purposes

of ling a lawsuit. Second, it enables the tenant to

contact the owner directly when there is a complaint

against the manager.

What are the tenant’s remedies?

Section 92.205(a) describes the tenant’s remedies

for the landlord’s violation of Sections 92.202, 92.203

or 92.204. If the tenant can prevail under one of the

prior three sections, the tenant may obtain one or

more of the following remedies:

• a court order directing the landlord to make a

disclosure required by this subchapter,

• a judgment against the landlord for an amount

equal to the tenant’s actual costs in discovering

the information required to be disclosed by this

subchapter,

• judgment against the landlord for one month’s

rent plus $100, and

• a judgment against the landlord for court costs

and attorneys' fees.

In addition to the judicial remedies listed above,

the tenant may unilaterally terminate the lease

without a court proceeding.

The tenant is provided the same remedies under

Section 92.205 whether the landlord violated the

subchapter by not disclosing or intentionally giving

incorrect information.

What are the governmental remedies?

A governmental body whose official or employee

has requested information from a landlord who is

liable under Section 92.202 or 92.204 may obtain or

exercise one or more of the following remedies:

• a court order directing the landlord to make a

disclosure as required by this subchapter,

• a judgment against the landlord for an amount

equal to the governmental body’s actual costs

in discovering the information required to be

disclosed,

• a judgment against the landlord for $500, and

• a judgment against the landlord for court costs

and attorney’s fees [Section 92.205(b)].

The landlord is liable to the tenant for violating

Sections 92.202, 92.203 or 92.204. The landlord is li-

able to the government for violating Sections 92.202

or 92.204. The difference is 92.203. This section re-

quires the landlord to correct any information given

to a tenant. No correction is required for information

given a government official or employee.

What is the landlord’s defense?

The landlord is granted one defense to a tenant’s

suit under either Section 92.202 or Section 92.203

(Section 92.206). The tenant cannot prevail if the

landlord proves to the court that the tenant was

delinquent in rent when a required notice was given.

However, nonpayment of rent is not a defense when

the landlord willfully provides or willfully fails to

correct inaccurate information. Thus, the differ-

ence between the landlord’s willful and unwillful

violation of the subchapter lies with the landlord’s

defenses, not with the tenant’s remedies.

Where should notices be given?

A managing or leasing agent, whether residing or

maintaining an office on-site or off-site, is the land-

lord’s agent for purposes of notice and other commu-

nications required or permitted by this subchapter

and also for notices and communications from a

governmental body relating to a violation of health,

sanitation, safety or nuisance laws on the landlord’s

property, including notices of:

• demands for abatement of nuisances,

• repair of a substandard dwelling,

• remedy of dangerous conditions,

• reimbursement of costs incurred by the gov-

ernmental body incurring the violation,

• nes, and

• service of process (Section 92.207[a]).

If the landlord’s name and business street address

in this state have not been furnished in writing to

the tenant or government official or employee, the

person who collects the rent from a tenant is the

landlord’s authorized agent for purposes of receiving

notices and other communications.

How does Subchapter E relate to other

laws?

The landlord’s duty and the tenant’s remedies

under this subchapter are exclusive. The subchapter

takes precedence over prior court cases, other

statutory laws and local ordinances on the subject

(Section 92.208). However, the subchapter does

not prohibit the adoption of a local ordinance that

conforms to the subchapter and contains additional

enforcement provisions.

According to the statutes, the lease agreement may

impact two things concerning disclosure of owner-

ship and management. First, must the initial request

for the information be in writing (Section 92.202)?

Second, according to Subchapter A, Section 92.006,

the lease agreement may enlarge both the landlord’s

duties and the tenant’s remedies pertaining to the

required disclosures. It cannot lessen the duties and

remedies, however.

Public Nuisances at Multiunit Residential Property

Section 125.046, Texas Civil Practices and Remedies Code

How is the maintenance of a common

nuisance dened?

The statute does not dene the phrase. Instead, it

references Section 125.001 that gives the following

denition. It appears quite similar to that of a public

nuisance.

"A person who knowingly maintains a place to

which persons habitually go for the purpose of

prostitution or gambling in violation of the Texas

Penal Code, for the purpose of reckless discharge of

a rearm as described in Section 42.015 of the Texas

Penal Code, or for the delivery or use of a controlled

substance in violation of Chapter 481 of the Texas

Health and Safety Code, maintains a common nui-

sance."

How is multiunit residential property

dened?

The statute denes multiunit residential property

as real property with at least three dwelling units,

including an apartment building or condominium.

The term does not include:

• property where each dwelling unit is occupied

by the owner or

• a single-family home or duplex (Section

125.041[3]).

What can the courts do to abate a nuisance

at multiunit residential property?

If a court determines that a common or public

nuisance exists at multiunit residential property,

the court, on its own initiative or on the motion

of any party, may order the appointment of a re-

ceiver to manage the property or render any other

order allowed by law to abate the nuisance (Section

125.046[a]).

What duties does the court-appointed

receiver have?

Generally, the court determines the management

duties of the receiver, the receiver's fees, the method

of payment and the payment periods.

Specically, the statute provides that the receiver

may:

• take control of the property,

• collect rents due on the property,

• make or have made any repairs necessary to

bring the property into compliance with mini-

mum standards in local ordinances,

A new statute became effective August 28, 1995:

Section 125.046 of the Civil Practices and Remedies

Code. Unlike most statutes dealing with landlords

and tenants, it is not found in the Property Code.

The statute deals with a unique remedy, the appoint-

ment of a receiver, whenever a common nuisance is

maintained or a public nuisance exists at a multiunit

residential complex.

As with all aspects of the law, the denition of

several terms is critical: public nuisance, common

nuisance and multiunit residential property.

How is a public nuisance dened?

A public nuisance for purposes of the subchapter

exists when one or more of the following acts occur

regularly on the premises:

• gambling, gambling promotion or communica-

tion of gambling information, as prohibited by

Chapter 47 of the Texas Penal Code,

• compelling prostitution, promotion or the

aggravated promotion of prostitution as prohib-

ited by Chapter 43 of the Texas Penal Code,

• commercial manufacture, commercial distri-

bution or commercial exhibition of material

that is obscene as dened by Section 43.21 of

the Texas Penal Code,

• commercial exhibition of a live dance or other

act in which a person engages in real or simu-

lated sexual intercourse or deviate sexual inter-

course as dened by Section 43.01 of the Texas

Penal Code,

• engaging in organized criminal activity as a

member of a combination or as a member of

a criminal street gang as described by Section

71.02 of the Texas Penal Code, or

• manufacture, delivery or use of a controlled

substance in violation of Chapter 481 of

the Texas Health and Safety Code (Section

125.041[3][B][1]-[6]).

The statute contains the above denition of terms.

In addition, it references Section 125.021 where the

following items are also listed as a public nuisance:

• engaging in a voluntary ght between a man

and a bull if the ght is for a thing of value or a

championship, if a thing of value is wagered on

the ght or if an admission fee for the ght is

directly or indirectly charged, as prohibited by

law and

• reckless discharge of a rearm as described by

Section 42.015 of the Texas Penal Code.

• make payments necessary for the maintenance

or restoration of utilities to the properties,

• purchase materials necessary to accomplish

repairs,

• renew existing rental contracts and leases,

• enter into new rental contracts and leases,

• affirm, renew or enter into a new contract pro-

viding for insurance coverage on the property,

and

• exercise all other authority that an owner of

the property would have except for the author-

ity to sell the property (Section 125.046[c]-[e]).

The receiver may not spend more than $10,000 for

repairs or purchase of materials without prior court

approval. (Section 125.046[f]).

How long does the receiver's appointment

last?

The appointment cannot exceed one year. How-

ever, the receiver shall continue to manage the prop-

erty while any appeal is pending (Section 125.046[b]).

Must the receiver le an accounting?

The receiver must le a full accounting with the

court of all costs and expenses incurred for repairs

including reasonable costs for labor and subdivision.

Also, the receiver must account for all income re-

ceived. The accounting must be led at the comple-

tion of the receivership (Section 125.046[g]).

Common Nuisances Occurring at Multiunit Residential Property

Section 125.001 et seg, Texas Civil Practices and Remedies Code

Section 125.001 et seg. of the Civil Practices and

Remedies Code was amended effective Sept. 1, 2005,

creating a private cause of action to address common

nuisances occurring at multiunit residential proper-

ty. The amendment supplements the public nuisance

statute described earlier in Section 125.046 of the

Civil Practices and Remedies Code where a receiver

is appointed to abate the problem if the court deter-

mines on its own initiative that a common or public

nuisance exists at multiunit residential property.

How is a common nuisance dened or

described?

A common nuisance is one of these 16 activities

described in Section 125.015 of the Civil Practices

and Remedies Code as follows:

• discharge of a rearm in a public place as pro-

hibited by the penal code;

• reckless discharge of a rearm as prohibited by

the penal code;

• engaging in organized criminal activity as a

member of a combination as prohibited by the

penal code;

• delivery, possession, manufacture or use of a

controlled substance in violation of Chapter

481, Health and Safety Code;

• gambling, gambling promotion, or communi-

cating gambling information as prohibited by

the penal code;

• prostitution, promotion of prostitution or ag-

gravated promotion of prostitution as prohib-

ited by the penal code;

• compelling prostitution as prohibited by the

penal code;

• commercial manufacture, commercial distribu-

tion or commercial exhibition of obscene mate-

rial as prohibited by the penal code;

• aggravated assault as described by Section 22.02

of the penal code;

• sexual assault as described by Section 22.011 of

the penal code;

• aggravated sexual assault as described by Sec-

tion 22.021 of the penal code;

• robbery as described by Section 29.02 of the

penal code;

• aggravated robbery as described by Section

29.03 of the penal code;

• unlawfully carrying a weapon as described by

Section 46.02 of the penal code;

• murder as described by Section 19.02 of the

penal code; and

• capital murder as described by Section 19.03 of

the penal code (Section 125.001).

How is multiunit residential property

dened?

The statute denes multiunit residential property

as improved real property with at least three dwell-

ing units, including an apartment building, condo-

minium, hotel or motel. The term does not include

a single-family home or duplex, but it does include

property in which each dwelling unit is occupied by

the owner of the property (Section 125.001[3]).

What exactly does the new statutory

amendment prohibit? Specically, how is it

worded?

“A person maintains a common nuisance if the

person maintains a multiunit residential property to

which persons habitually go to commit acts listed

(in Section 125.015) and furthermore fails to make

reasonable attempts to abate the acts.”

Does the statute provide for a private cause

of action against the person who maintains

the common nuisance and fails to abate it?

Yes. A person may sue the individual who main-

tains, owns, uses or is a party to the use of a place for

the purposes constituting a nuisance under Section

125.001 et seg. The person may bring an action in

rem (against the property itself) if it is being main-

tained or used as a common nuisance. A council of

owners, as dened by Section 81.001 of the Property

Code (governs condominiums before the adoption

of the Uniform Condominium Act) and a unit of an

owners’ association organized under Section 82.001

of the Property Code (governs condominiums after

the adoption of the Uniform Condominium Act)

are not immune from a lawsuit under this statute if

they maintain, own or are a party to the use of the

common areas for purposes of the nuisance (Section

125.002).

Where can someone nd details about

this private cause of action for a common

nuisance at a multiunit residential

property?

More details concerning lawsuits may be found

in Section 125.002 of the Texas Civil Practices and

Remedies Code. For example, the defendant (the

person who maintains and tolerates the common

nuisance) may not introduce evidence as a defense

that he or she called law enforcement or emergency

assistance to abate the activities or posted signs pro-

hibiting such conduct (Section 125.044).

Consequently, the creation of a contractual lien on

other property appears impossible.

What are the requirements for seizing

property?

The requirements and procedure for the landlord

seizing nonexempt property for nonpayment of rent

are given in Section 54.044. First, if the tenant has

abandoned the premises, the landlord or the land-

lord’s agent may remove the contents without autho-

rization in the lease. However, the landlord must be

certain that abandonment has occurred.

Texas case law denes abandonment as the relin-

quishment of possession with the intent of terminat-

ing ownership but without vesting it in anyone else.

The relinquishment must be intentional, voluntary

and absolute.

Generally, the critical issue in an abandonment

case is establishing the owner’s intent. This may be

evidenced by acts, conduct and declarations. How-

ever, the mere nonuse of the property is insufficient,

in and of itself, to establish abandonment.

Second, if abandonment has not occurred, the

landlord or landlord’s agent may seize the tenant’s

nonexempt property if the seizure is authorized in

a written lease and the seizure can be accomplished

without a breach of peace.

Third, unless a written lease so authorizes, the

landlord is not entitled to collect a charge for pack-

ing, removing or storing the property seized under

this section.

And nally, immediately after seizing the property,

the landlord or the landlord’s agent must leave a

written notice that an entry into the tenant’s apart-

ment has occurred and an itemized list of the items

removed. The written notice and itemized list must

be left in a conspicuous place in the dwelling. The

notice must state the:

• amount of the delinquent rent;

• name, address and telephone number of the

person whom the tenant may contact regarding

the rent owed; and

• property will be promptly returned on full pay-

ment of the delinquent rent.

Two important provisions are contained in this

section. First, a seizure of nonexempt personal prop-

erty cannot occur unless a written lease so autho-

rizes. Experts in this eld feel that Section 54.044

negates, in part, Section 54.041 mentioned earlier

granting the landlord a lien for unpaid rent. The Sec-

tion 54.041 lien may arise, but it cannot be perfected

by seizure and sale unless a written lease meeting

Residential Landlord’s Lien

Subchapter C, Chapter 54, Texas Property Code

The groundwork for the Subchapter C (Sections

54.041 through 50.048) is set in Section 54.041. It

provides that a landlord of a single- or multifamily

residence has a lien for unpaid rent. The lien attach-

es to the tenant’s nonexempt property that is in the

residence or that has been placed in a storage room.

What is exempt from the lien?

Fifteen items are exempt from seizure and from

the lien (Section 54.042). These include the tenant’s:

• wearing apparel

• tools, apparatus and books of a trade or profession

• school books

• a family library

• family portraits and pictures

• one couch, two living room chairs and a dining

table and chairs

• beds and bedding

• kitchen furniture and utensils

• food and foodstuffs

• medicine and medical supplies

• one automobile and one truck

• agricultural implements

• children’s toys not commonly used by adults

• goods that the landlord or the landlord’s agent

knows are owned by a person other than the

tenant or an occupant of the residence

• goods that the landlord or the landlord’s agent

knows are subject to a recorded chattel mort-

gage or nancing agreement

The list is similar to the personal property listed

in the Texas Property Code, Section 42.002, that is

exempt from attachment, execution and seizure for

satisfaction of debt.

Are contractual liens possible?

The landlord may create a contractual lien on

other property of the tenant under certain conditions

(Section 54.043). Such a contractual landlord’s lien is

enforceable if the provision

• is underlined or printed in conspicuous bold

print in the lease agreement and

• does not waive or diminish a right, liability or

exemption provided in this subchapter.

The language of the statute is confusing as to what

is meant by other property. There are two categories

of personal property — exempt and nonexempt. Only

the nonexempt may be seized for delinquent rent.

the requirements of Section 54.044 exists. Seizure

and sale of nonexempt personal property under an

oral lease are not authorized by the statutes.

Second, the statute speaks of the tenant’s paying

the delinquent rent to redeem the property. There

is no mention of late payments and penalties. It is

unclear whether late payments and penalties are

considered a part of the delinquent rent.

How may the landlord sell seized property?

The landlord must follow a prescribed procedure

in selling the seized property to satisfy the landlord’s

lien for unpaid rent (Section 54.045). First, the seized

property may not be sold or otherwise disposed of

unless so authorized by a written lease.

Second, the landlord must send the tenant notice

of the pending sale by both rst class mail and certi-

ed mail, return receipt requested, to the tenant’s

last known address no later than 30 days before the

sale. The notice must contain

• the date, time and place of the sale;

• an itemized account of the amount owed by the

tenant to the landlord; and

• the name, address and telephone number of the

person whom the tenant may contact regarding

the sale, the amount owed and the right of the

tenant to redeem the property.

Third, the tenant may redeem the property at any

time before the sale by paying all the delinquent

rent. The tenant must also pay all reasonable pack-

ing, moving, storage and sale costs if the written

lease so provides.

Fourth, if the tenant does not redeem the property

within 30 days after notice is sent, the property shall

be sold to the highest bidder. Proceeds from the sale

shall be distributed in the following manner:

• rst, toward delinquent rents;

• second, for reasonable packing, moving, storage

and sale costs if the written lease so provides;

and

• the remainder shall be mailed to the tenant’s

last known address within 30 days after the

sale.

If the tenant makes a written request for an ac-

counting, the landlord shall provide one for all pro-

ceeds from the sale within 30 days of the request.

The statute further provides that a sale under Sec-

tion 54.045 is subject to a recorded chattel mortgage

or nancing statement. This means that the lien

created by the recorded chattel mortgage or nanc-

ing statement continues to attach to the nonexempt

personal property seized and sold by the landlord.

The tenant’s remedies for the landlord’s willful

violation of the subchapter are described in Sec-

tion 54.046. The term willful is not dened by the

statute. However, a willful act is generally viewed

as one done intentionally, knowingly and purposely

without justiable excuse.

If a landlord or the landlord’s agent willfully vio-

lates the subchapter, the tenant is entitled to

• actual damages;

• return of any property seized that has not been

sold;

• return of the proceeds of any sale of seized

property;

• one month’s rent or $500, whichever is greater,

less any amount for which the tenant is liable;

and

• reasonable attorneys' fees.

The tenant’s remedies stated in Section 54.046 are

not exclusive (Section 54.047). The stated remedies

do not affect or diminish any other rights or obliga-

tions arising under the case law or other statutory

law.

How can tenants regain seized property?

The tenant has the right to have goods returned

(replevied) based on the giving of security under Sec-

tion 54.048. This section applies when the landlord

has seized nonexempt property, has not disposed of

it and is judicially pursuing collection of the unpaid

rent.

The tenant may replevy any of the property —

before a judgment is rendered and before the prop-

erty has been claimed or sold — by posting a bond

in an amount approved by the court, payable to the

landlord. The bond is on condition that, if the land-

lord prevails in the suit, the amount of the judgment

and any costs assessed against the tenant shall rst

be satised, to the extent possible, out of the bond.

How must the sale be conducted?

The sale of the property must be conducted in

accordance with the Texas Business and Commerce

Code, Sections 7.210, 9.301-9.318 and 9.501-9.507.

The property shall be sold to the highest bidder to

satisfy the landlord’s lien (Section 54.045). How the

sale must be advertised, who must be notied, when

and where the sale may occur and how the sale must

be conducted are described in the Texas Business

and Commerce Code, Sections 7.210 and 9.504. Both

sections reiterate that the sale may either be public

or private, in bulk or in parcels but always in a com-

mercially reasonable manner.

The residential landlord’s lien is one of the few

self-help remedies provided in the statutes. However,

it is not automatic. The statutes specify that unless

the written lease so provides, the landlord cannot

• seize, nonexempt property;

• charge for packing, moving or storing the non-

exempt property; or

• charge for the costs of conducting the sale.

Landlord's Right to Evict Tenants (Forcible Entry and Detainer)

Chapter 24, Texas Property Code

Procedure and Jurisdiction

for Evictions

Evictions — the legal means by which tenants may

be removed from the premises when they no longer

have a right of possession — play an important role

in the landlord-tenant relationship. The three lead-

ing causes for eviction are (1) nonpayment of rent, (2)

holding over after the lease term has expired and (3)

the continued possession of a home after foreclosure.

Statutes addressing evictions are found in the

Texas Property Code, Chapter 24, Sections 24.001

through 24.011. Sections 24.009 and 24.010 are

blank. The chapter applies to eviction of both

residential and commercial tenants.

The substantive rules for evicting a tenant are

described in Chapter 24. However, anyone thinking

about bringing an eviction action should consult

rules 510.3 through 510.13 of the Texas Rules of

Civil Procedure. These rules parallel and amplify the

sections in Chapter 24.

Although the word eviction is a legal term, it is

never used in Chapter 24 or in the Rules of Civil

Procedure. In its place, the terms forcible entry and

detainer and forcible detainer appear. Either action

effectively removes a person from wrongful posses-

sion of real property. The difference lies in how the

person being evicted gained possession. It does not

have to be by force as the name implies.

When does a forcible entry and detainer

occur?

A forcible entry and detainer occurs when an un-

authorized person enters the real property of another,

without legal authority or by force, and refuses to

surrender possession on demand (Section 24.001).

As the name implies, a forcible entry and detainer

has two parts. The rst is an unauthorized entry, the

second the failure to leave on demand.

The section describes three situations in which the

rst part of a forcible entry and detainer may occur.

These include when an unauthorized person enters:

• without the consent of the person in actual pos-

session of the property;

• the premises of a tenant who, at the time, is a

tenant at will or a tenant by sufferance; or

• without the consent of the person who acquired

possession by forcible entry.

Denitions of key terms are in the glossary.

When does a forcible detainer occur?

A forcible detainer occurs when a person refuses

to surrender possession of real property on demand

(Section 24.002). This is distinguishable from the

forcible entry and detainer because, under a forcible

detainer, the person’s entry does not necessarily have

to be unlawful. Thus, most eviction suits by land-

lords are forcible detainers–not forcible entry and

detainers–because the tenant’s initial entry usually

is lawful.

Three situations in which forcible detainer may

occur include when the tenant or subtenant:

• willfully and without force holds over after the

right of possession terminates,

• is a tenant at will or a tenant at sufferance or

occupies the premises when a lien superior to

the tenant’s lease is foreclosed or

• acquires possession by forcible entry.

However, these three situations describe only the

settings of a forcible detainer. In addition, a demand

must be made to vacate the premises and the occu-

pant refuses to do so. The necessary elements of the

notice to vacate are discussed later in Section 24.005.

A landlord may continue a forcible entry action

in the tenant’s name without reling the suit in the

landlord’s name (Section 24.003). This occurs if the

tenant has such a suit pending when the tenant’s

lease term expires. It is immaterial that the tenant

received possession from the landlord or became a

tenant after obtaining possession of the property.

Where is the jurisdiction for an eviction

suit?

Jurisdiction for either a forcible entry and detainer

or a forcible detainer suit (an eviction suit) is in the

precinct where the real property is located. A justice

court may issue a writ of possession under Section

24.0054(a), (a-2) and (a-3) discussed later. The justice

court has no jurisdiction for a violation of Chapter

21A of the Texas Business and Commerce Code (Sec-

tion 24.004).

How much notice must a landlord give a

tenant who is asked to vacate the premises?

The demand that a tenant leave the premises is the

rst step in the eviction process. How much notice

is required depends on which of the following cat-

egories the tenant falls into.

Tenant has defaulted on rent or does not vacate after

lease expires.

The landlord must give the tenant at least a three-

day notice before ling a forcible detainer suit when

the tenant has defaulted on rent payments or holds

over after the lease term expires (Section 24.005[a]).

The three-day notice does not apply if the written or

oral lease species a different period.

If the tenant is on a month-to-month lease and the

rent-paying period is monthly or less than a month,

the landlord must comply with the termination re-

quirements described in Section 91.001. This section

requires that the length of notice to vacate corre-

sponds with the length of the rent-paying period. If

the rent is paid every two weeks, the notice to va-

cate must be at least two weeks plus one day before

an eviction suit can be led. However, the notices

required by Section 91.001 do not apply when:

• the parties have agreed in writing to a different

period,

• the parties have agreed in writing that no no-

tice to terminate is required, or

• one of the parties has breached the contract in a

manner recognized by law.

When the occupant is a tenant at will or a tenant

at sufferance (see Glossary), a three-day notice is re-

quired unless a different period has been contracted

in the written or oral lease (Section 24.005[b]).

Tenant’s building has been sold at a tax or trustee’s

foreclosure sale.

If the tenant’s building has been sold at a tax fore-

closure sale or at a trustee’s foreclosure sale under a

lien superior to the tenant’s lease, the statute (Sec-

tion 24.005[b]) requires the purchaser to give the resi-

dential tenant at least a 30-day written notice if the

tenant has “timely paid” rent and is not otherwise in

default under the lease after the sale.

“Timely paid” means the tenant either pays the

monthly rent:

• before receiving notice of the scheduled foreclo-

sure sale; or

• to the “foreclosing lienholder” or purchaser at

the sale no later than ve days after receiving a

written request for rent from such person.

The statute apparently allows the foreclosing

lienholder to demand rent from the tenant prior to

the foreclosure sale. Otherwise, any monthly rent

collected by the landlord before the sale belongs to

the collecting landlord and not to the purchaser at

the foreclosure sale (See Treetop Apartments Gener-

al Partnership v. Oyster, 800 S.W. 2d 628 [Tex. App.

1990]).

A foreclosing lienholder may give written notice to

a tenant indicating that a foreclosure notice has been

given to the landlord or owner and specifying the

scheduled date of the sale. When the tenant acquired

possession by forcible entry, a three-day notice is

required before ling a forcible detainer suit (Section

24.005[c]).

Tenant rented from someone who does not have

ownership rights to the property.

Although the possibility that a person would rent

from someone lacking possessory rights to the prop-

erty is remote, this section addresses such a situation.

If the occupant is the person who gained posses-

sion by forcible entry under Section 24.001, there is

no required waiting period (Section 24.005[d]). The

forcible detainer may be led immediately or at the

end of any deadline specied in the oral or written

notice to vacate.

The notice differs when the lease or applicable law

requires the landlord to allow a tenant to respond to

a notice of a proposed eviction (Section 24.005[e]).

Here, notice to vacate cannot be given until the

response period ends.

The only leases containing a preliminary notice

to vacate are HUD subsidized leases. Generally, the

response period is ten days. Landlords are required to

give two separate notices ten days apart. The rst is

a proposed notice to vacate; the second is the actual

notice to vacate.

How must a notice to vacate be delivered?

The notice to vacate may be given in person or by

mail at the premises (Section 24.005[f]). If delivered

in person, the notice must be given to the tenant or

to any resident who is at least 16 years old. Personal

delivery also includes affixing the notice to the

inside of the main entry door to the premises (manu-

factured home). Notice also may be sent by regular

mail, registered mail, or certied mail with return

receipt requested.

What alternatives does the landlord have if

there is no mailbox or entry is impossible,

inconvenient or dangerous?

If the dwelling has no mailbox and has a keyless

bolting device, alarm system, a dangerous animal

that prevents entry, or the landlord believes that

harm to any person would result from personal

delivery to the tenant or a person residing at the

premises, or from personal delivery by affixing the

notice inside the main entry door, the landlord may

affix the notice to vacate outside the main entry

door (Section 24.005[f]).

The notice must be securely affixed to the outside

of the main entry door in a sealed envelope with the

tenant’s name and address printed on it. The enve-

lope must contain the notice to vacate. The words

“IMPORTANT DOCUMENT” or substantially

similar language must be printed on the envelope in

all capital letters. In addition, no later than 5 p.m.

on day the envelope is affixed to the door, a copy of

the notice must be deposited in the mail in the same

county in which the premises is located.

When this method is used, the notice to vacate in

this situation is considered delivered on the date the

envelope is affixed to the outside of the door and de-

posited in the mail regardless of the date the notice

is actually received (Sections 24.005(f), (f-1) and (f-2).

Can the notice to vacate include a demand

that all delinquent rent be paid to avoid

eviction?

The notice to vacate may include a demand for

delinquent rent in lieu of eviction if the landlord has

given the tenant prior written notice or reminder

that the rent is due and unpaid. The delinquent rent

must be paid by the date and time stated in the no-

tice to avoid eviction (Section 24.005[i]).

The notice period is calculated from the day on

which the notice is delivered (Section 24.005[g]). A

“notice to vacate” shall be considered a “demand for

possession” for purposes of Section 24.002 discussed

earlier (Section 24.005[h]).

Writ of Possession

When may the landlord receive a writ of

possession?

The second step in the eviction process involves

judicial action if the tenant fails to vacate the prem-

ises within the allotted time after the notice to vacate

is given. The judicial process involves getting a judg-

ment for possession and then, if the tenant does not

leave, getting a writ of possession six days later.

Before a judgment for possession can be rendered,

an officer of the court must serve the tenant with

notice of the pending lawsuit. This is known as the

service of citation. If the officer tries twice unsuc-

cessfully to serve the tenant both at the dwelling

and at work, Rule 742a of the Texas Rules of Civil

Procedure allows service by posting the notice to the

front door or main entry to the premises and mailing

a copy to the tenant’s address.

If the landlord is evicting a tenant for unpaid

rent, Rule 738 of the Texas Rules of Civil Proce-

dure permits the landlord to bring an action for the

unpaid rent in the same suit for possession when

the amount is within the jurisdictional limits of the

court. The landlord can then get two judgments–one

for possession, the other for unpaid rent. Normally,

the justice court will provide the landlord with an

available form for ling the petition.

Section 24.0051, added in 1999, affects lawsuits

led on sworn statements (or accounts) where the

landlord has kept a systematic record of the amount

due and has led an affidavit before the court that

the records are true. Prior to 1999, the sworn state-

ment was sufficient to get a default judgment for un-

paid rent when the service of process occurred under

Rule 742a of the Rules of Civil Procedure. However,

it was insufficient to get a default judgment for pos-

session under the same circumstances. The 1999

amendment changed the rule to permit a lawsuit

based on a sworn statement and service of process

under Rule 742a to support a default judgment for

unpaid rent and possession (Section 24.0051[a]).

A default judgment occurs when the defendant

fails to appear to defend the claim. A service of pro-

cess is the personal delivery of notice to the defen-

dant of a pending lawsuit. A service of process under

Rule 742a is an alternative way to deliver notice

after the sheriff fails twice to deliver it personally.

Must the tenant vacate the premises before

the landlord can recover unpaid rent?

No. The landlord may recover unpaid rent under

Section 24.0051 regardless of whether the tenant

vacated the premises after the date the landlord led

the sworn statement and before the date the court

renders judgment (Section 24.0051[b]).

Are there any special rules for citations

served under Rules 739 of the Texas Rules

of Civil Procedure to recover possession?

Yes, there are two special rules. One is found in

Section 24.0051(c) and the other in 24.0051(d).

According to 24.0051(c), the citation must in-

clude the following language in a suit to recover

possession, whether or not for unpaid rent:

“FAILURE TO APPEAR FOR TRIAL MAY

RESULT IN A DEFAULT JUDGMENT

BEING ENTERED AGAINST YOU.”

According to 24.0051(d), the citation must also

include the following notice to the defendant on the

rst page of the citation in English and Spanish and

in conspicuous bold print:

“SUIT TO EVICT

THIS SUIT TO EVICT INVOLVES IMME-

DIATE DEADLINES. A TENANT WHO IS

SERVING ON ACTIVE MILITARY DUTY

MAY HAVE SPECIAL RIGHTS OR RELIEF

RELATED TO THIS SUIT UNDER FEDER-

AL LAW, INCLUDING THE SERVICEMEM-

BERS CIVIL RELIEF ACT (50 U.S.C. APP.

SECTION 501 ET SEQ.), OR STATE LAW,

INCLUDING SECTION 92.017, TEXAS

PROPERTY CODE. CALL THE STATE BAR

OF TEXAS TOLL-FREE AT 1-877-9TEXBAR

IF YOU NEED HELP LOCATING AN AT-

TORNEY. IF YOU CANNOT AFFORD TO

HIRE AN ATTORNEY, YOU MAY BE ELI-

GIBLE FOR FREE OR LOW-COST LEGAL

ASSISTANCE.”

Appealing an Eviction

What if the tenant appeals an adverse ruling

by the justice court? How does the judge set

the amount of the appeal bond?

In residential eviction suits for nonpayment of

rent, the justice court must state in the judgment

the amount of the bond taking into consideration

the money required by Section 24.0053. (Section

24.00511[a])

What information must the court include in

the appeal bond?

In addition to meeting all the other require-

ments of the law, the bond must include informa-

tion about the surety including the surety’s contact

information—an address, phone number, and email

address—if any. The surety must inform the court

of any changes in the contact information (Section

24.00511[b]).

Are there any exceptions to the rules

regarding surety?

Yes. The preceding rules do not apply to appeal

bonds issued by a corporate surety authorized by the

Texas Department of Insurance to engage in business

in this state (Section24.00512[a]).

Can the opposing party (landlord) contest

the amount of the appeal bond, its form,

or nancial ability of the surety to pay the

bond?

Yes. If the party appeals a judgment of a justice

court (the tenant) in a residential eviction suit for

the nonpayment of rent by ling an appeal bond,

the opposing party (the landlord) may contest any

of these three issues by ling a written notice with

the court within ve days after the date the appeal

bond is led. A copy must be served on the other

party (the tenant). Afterwards, the justice court must

notify the other party (the tenant) and the surety of

the contest. The justice court must hold a hearing

regarding the issues within ve days after the ling

the contest (Sections 24.00512[b] and[c]).

Who has the burden of proof at the hearing?

The party contesting the amount or form of the

bond (the landlord) must prove by preponderance of

the evidence that the amount or form of the bond is

insufficient. However, if the contest is based on the

nancial ability of the surety to pay the bond, the

party ling the bond (the tenant) must prove by the

preponderance of the evidence that the surety has

sufficient, nonexempt assets to pay the appeal bond.

If the justice court nds the form or amount of the

bond is insufficient or that the surety cannot pay the

bond, the justice court must disapprove the bond. If

the surety fails to appear at the hearing, the failure is

prima facie evidence that the bond should be disap-

proved (Section 24.00512[d]).

What happens if the bond is disapproved?

What options does the tenant have?

If the bond is disapproved by the justice court, the

appealing party (the tenant) has three options it may

pursue within ve days of the disapproval. These in-

clude: (1) make a cash deposit with the court for the

full amount of the bond, (2) le a sworn statement of

inability to pay with the court, or (3) appeal the deci-

sion by the justice court in disapproving the bond to

the county court.

If the appealing party does none of these within

the ve-day period, the judgment of the justice court

becomes nal, a writ of possession and other pro-

cesses to enforce the judgment must be issued on the

payment of the required fee (Section 24.0512[e]).

What happens if the matter is appealed to

the county court?

If the party appeals to the county court, the justice

court must transfer to the county court the contest

concerning the appeal bond along with all the rel-

evant documents. The county court then dockets the

appeal, schedules a hearing within ve days, noties

the parties and the surety of the time, date of the

hearing. The contest will be heard de novo meaning

a full-blown hearing takes place without taking into

consideration anything decided by the justice court.

The failure of the county court to conduct a timely

hearing is not grounds for approval or denial of the

appeal. However, a writ of possession may not be

issued before the county court issues a nal decision

on the appeal bond (Section 24.0512[f]).

What happens after the county court hears

and determines the matter?

Once the contest is heard by the county court, it

transmits the transcript and records of the case back

to the justice court. If the county court disapproved

the appeal bond, the tenant has ve days to perfect

the appeal of the judgment on the eviction suit

either by (1) making a cash deposit with the justice

court in an amount determined by the county court

or by (2) ling a sworn statement of the inability to

pay with the justice court pursuit to Texas rules of

Civil Procedure.

What happens if the tenant pursued neither

option to perfect the appeal?

If the tenant does not make the case deposit or le

a sworn statement, the judgment of the justice court

becomes nal and a writ of possession and other pro-

cesses to enforce the judgment must be issued upon

the payment of the required fee.

What happens if the county court nds in

favor of the tenant and against the landlord?

Can the landlord appeal?

Yes. If the landlord is the appealing party, not the

tenant, it has the same two option: 1) make a cash

deposit with the justice court in an amount deter-

mined by the county court or by (2) le a sworn

statement of the inability to pay with the justice

court pursuit to Texas rules of Civil Procedure. If

it does neither, the judgment of the justice court

becomes nal. The appeal bond is approved by the

county court, the court transfers the transcript and

other records back to the justice court. The justice

court then then proceeds as if the appeal bond was

originally approved (Section 24.0512[g]).

If an eviction case is appealed to the county

court, can a party still contest the appeal

bond? Likewise, can the county court still

modify the amount or form of the bond or

determine the sufficiency of the surety?

Yes. Just because the eviction suit is appealed

to the county court, parties are not precluded from

raising these issues with the county court (Section

24.05121).

Pauper’s Affidavit

How can a tenant appeal an adverse

judgment of the justice court when the

tenant cannot afford it?

A tenant lacking funds to appeal an adverse judg-

ment of the justice court may le with the court not

later than the fth day after the judgment is signed,

a pauper’s affidavit sworn to before the clerk of

the justice court or before a notary public. (Section

24.0052[a]).

What must the pauper’s affidavit state?

The affidavit must state, in addition to the fact

that the tenant is unable to pay the costs of appeal or

le an appeal bond, the following nine items:

• the tenant’s identity;

• the nature and amount of the tenant’s employ-

ment income;

• the tenant’s spouse’s income, if available to the

tenant;

• the nature and amount of any governmental

entitlement income;

• the amount of available cash and funds avail-

able in savings or checking accounts;

• real and personal property owned by the tenant

other than household furnishings, clothes, tools

of the trade or personal effects;

• tenant’s debts and monthly expenses; and

• the number and age of the tenant’s dependents

and where the dependents reside (Section

24.0052[a] and [b]).

Payment of Rent During an

Appeal for Eviction

Must the tenant continue to pay rent during

the appeal for eviction when the underlying

controversy is for nonpayment of rent and

no pauper’s affidavit or appeal bond has

been led?

Yes. If the justice court enters a judgment for the

landlord in a residential eviction for the nonpay-

ment of rent, the justice court must determine the

amount of rent payable for each rental period during

any appeal and note the amount in the judgment.

If all or part of the rent is paid by the government

agency, the court must determine the portion to be

paid by the tenant and the portion to be paid by the

government agency and note it in the judgment. The

amount must be determined based on the terms of

the rental agreement and applicable laws and regu-

lations. The law does not require nor prohibit the

payment of rent into the court registry or directly

to the landlord except when an eviction is based on

the nonpayment of rent. Then it must be paid to the

court registry. Either party may appeal the determi-

nation of the amount. (Sections 24.0053[a] and [b]).

Must the tenant continue to pay rent during

an eviction for nonpayment of rent when

the tenant timely les a pauper’s affidavit

and no appeal bond?

Yes.

What does the justice court do when a

paupers’ affidavit is led?

If a paupers’ affidavit is led, the justice court

must provide the tenant a written notice containing

the following items printed in bold or conspicuous

type:

(1) the amount of the initial deposit of rent as

stated in the judgment that the tenant must

pay into the justice court registry;

(2) the means by which the initial deposit must

be paid, i.e., cash, cashier's check, or money

order, and to whom the cashier's check or

money order, if applicable, must be made

payable;

(3) the calendar date by which the initial deposit

must be paid into the justice court registry

and the time the court closes for a courts

that close before 5 p.m. where the payment

is due; and

(4) a statement that failure to pay the required

amount into the justice court registry by the

date prescribed in subsection (3) above may

result in the court issuing a writ of posses-

sion without a hearing (Section 24.0053[a-1]).

When is the last day the initial deposit

must be paid into the justice court?

The initial deposit must be paid into the justice

court no later than the fth day after the pauper’s

affidavit is led as required by the Texas Rules of

Civil Procedure (Section 24.0053[a-2]).

What does the justice court do when the

tenant les an appeal bond, not a paupers’

affidavit?

If the tenant les an appeal bond for an eviction

for the nonpayment of rent, the tenant must, within

ve days after ling the appeal bond, pay into the

justice court registry the amount of one month’s rent

as determined by the justice court.

What happens when the tenant fails to

tender the initial rent payment into the

registry of the justice court?

If the amount is not timely paid and the transcript

has not been transferred to the county court, the

plaintiff (landlord) may request a writ of posses-

sion. On request and payment of the applicable fee,

the justice court must issue the writ of possession

immediately and without a hearing. Regardless of

whether a writ of possession is issued, the justice

court must transfer the transcript and appeal docu-

ments to the county court for trial de novo (for a

new hearing) on the issues relating to possession,

rent, or attorney’s fees (Section 24.0053[a-3]).

Can the plaintiff (landlord) withdraw the

money deposited into the justice court

registry before the nal determination of

the case?

Yes. On sworn motion and hearing, the plaintiff

(landlord) may in an eviction suit withdraw the mon-

ey deposited with the court registry before the nal

determination of the case, dismissal of the appeal, or

order of the court after the nal hearing. The county

court must give precedence to a hearing or motion

under this subsection (Section 24.0053[a-4]).

What will trigger the justice court to issue

a writ of possession immediately upon

request and without a hearing during an

appeal for an eviction for nonpayment of

rent?

The justice court will immediately issue a writ of

possession upon request by the landlord during an

appeal for an eviction for nonpayment of rent when:

(1) a tenant fails to pay the initial rent deposit

into the justice court registry within ve

days of the date the tenant led a pau-

per's affidavit as required by Rule 749b(1),

Texas Rules of Civil Procedure, and Section

24.0053;

(2) the justice court has provided the written

notice required by Section 24.0053(a-1); and

(3) the justice court has not yet forwarded the

transcript and original papers to the county

court as provided by subsection (a-2) (Section

24.0054[a]).

Who is responsible for executing the writ of

possession? Who bears the cost?

The sheriff or constable must execute a writ of

possession under Subsection (a) in accordance with

Sections 24.0061(d) through (h) of the Property Code.

The landlord must bear the costs of issuing and ex-

ecuting the writ of possession (Section 24.0054[a-1]).

When is the justice court required to

forward the transcript and original papers

to the county court in an appeal for an

eviction?

When a pauper’s affidavit has been led, the justice

court may not forward the transcript and original

papers to the county court before the sixth day after

the tenant les the affidavit. However, if the ten-

ant tenders the initial deposit of rent into the jus-

tice court registry before the fth day, the justice

court may forward the transcript and original papers

immediately to the county court after conrming

receipt of the deposit.

If the tenant fails to pay the initial deposit of rent

into the registry by the fth day, upon request by

the landlord, the justice court must issue a writ of

possession even though the tenant has perfected an

appeal by ling a pauper’s affidavit approved by the

court. Even though the writ of possession has been

issued under these circumstance, the justice court

must still forward the transcript and papers to the

county court for a trial de novo (Section 24.0054[a-2]).

Are there special provisions for issuing

a writ of possession when a government

agency is responsible for all or a portion of

the rent under section 24.0053(d)?

Yes. When a government agency is responsible for

all or a part of the rent, a writ of possession may not

be issued when the tenant pays the initial deposit

for the portion he or she feels responsible. (Section

24.0054[a-3]).

What happens If the tenant tender the

initial rent into the registry, but then fails

to pay any subsequent amounts as they

come due?

If the tenant in an eviction case for the nonpay-

ment of rent fails to pay rent into the justice court or

the county court registry as the rent becomes due in

accordance with section 24.0053, the landlord may

le with the county court a sworn motion that the

tenant failed to pay as required and notify the tenant

of the motion and hearing date (Section 24.0054[a-4]).

Issuing a Writ of Possession

Will the county court then issue a writ of

possession if it nds the sworn motion is

true regarding the nonpayment of rent?

How can the tenant avoid the writ from

being issued?

The county court shall immediately issue the writ

of possession unless on or before the date of the hear-

ing, the tenant pays into the court registry:

(1) all rent not paid in accordance with the

Texas Rules of Civil Procedure and Section

24.0053; and

(2) the landlord's reasonable attorney's fees,

if any, for ling the motion. (Section

24.0054[b]).

Will it make any difference if the tenant has

defaulted on one or more prior required rent

payment to the court registry?

If the court nds that the tenant failed to timely

pay the rent into the court registry on more than one

occasion, the tenant is not entitled to stay the issu-

ance of the writ by paying the rent and the landlord's

reasonable attorney's fees, if any; and the county

court shall immediately issue a writ of possession

(Section 24.0054[c]).

When the court nds the tenant has

defaulted on one or more prior required rent

payment to the court registry, how soon can

the court issue a writ of execution?

The earliest the court may issue a writ of execu-

tion under these circumstances is on the sixth day

after the writ of possession was issued.

A writ of possession is an order of the court enforc-

ing a judgment to recover possession of property. It

commands the sheriff to enter and give possession of

the property to the person who received the writ of

possession.

May the tenants represent themselves

without an attorney when a motion has

been led to dismiss an appeal for an

eviction case in the county court or to

defend a motion for failing to timely pay the

required rent into the court’s registry?

Yes. No attorney is necessary (Section 24.0054[e]).

In cases where a government agency is

responsible for all or a portion of the rent

during an appeal for the nonpayment of

rent, what happens if the government fails

to make a timely deposit of its share of the

rent into the registry?

As before, the landlord may le a motion with the

county court requesting the tenant be required to

pay the full amount each month as it becomes due.

The court must grant the motion if the landlord can

prove by credible evidence that:

(1) a portion of the rent is owed by a govern-

ment agency;

(2) the portion of the rent owed by the govern-

ment agency is unpaid;

(3) the landlord did not cause wholly or partly

the agency to cease making the payments;

(4) the landlord did not cause wholly or partly

the agency to pay the wrong amount; and

(5) the landlord is not able to take reasonable

action that will cause the agency to resume

making the payments of its portion of the

rent due under the rental agreement (Section

24.0054[f]).

Note.

Nothing is said about the tenant’s defenses to an

eviction suit in this subchapter. However, Subchap-

ters B and G mention three defenses. These include:

• an unlawful retaliation by the landlord (Section

92.057),

• a lawful rent reduction by the tenant under Sec-

tion 92.0561 (the repair-and-deduct provision)

and

• a lawful rent reduction by the tenant under Sec-

tion 92.301 (the rent deductions permitted for

paying to reconnect or avoid a utility cutoff).

Can either the tenant or landlord contest

the amount of rent so determined by the

court to be paid during the appeal when the

underlying controversy is for nonpayment

of rent?

Yes. Either the landlord or tenant may contest the

amount by ling a protest within ve days after the

judge signs the document, even when a government

agency is responsible for all or a portion of the rent.

The justice court must notify the parties and hold

a hearing within ve days after the protest is led.

After the hearing, the justice court shall determine

the portion of the rent to be paid by the tenant. The

portion paid by the government evidently cannot be

appealed (Section 24.0053[c]).

Can the amount of rent required by the

justice court as noted in Section 24.0053(c)

be contested by the tenant?

Yes. If the tenant objects to the portion of rent he

or she owes as determined on appeal by the justice

court, the tenant may pay only the amount the ten-

ant claims is owed until the issue is tried de novo

along with the case on its merits in the county

court. A trial de novo is a new trial on the facts and

the law. It is independent of anything that occurred

in the rst trial.

While the appeal is pending on the merits of the

case, either party may le a motion with the county

court to reconsider the amount of the rent that must

be paid by the tenant to the court registry (Section

24.0053[d]).

Are there any special rules when a pauper’s

affidavit has been led?

Yes. If either party les a contest under Section

24.0053[c] regarding the amount of the rent, and at

the same time, the landlord contests the tenant’s l-

ing a pauper’s affidavit under Section 24.0052(d), the

justice court may hold the hearing on both issues at

the same time (Section 24.0053[e]).

When the landlord prevails in an eviction

suit, can the landlord recover attorney fees?

Yes. A landlord may recover attorney fees in an

eviction suit when the landlord meets the following

conditions:

(1) the landlord sends a written notice to the

tenant who is in unlawfully possession to

vacate the landlord’s premises within 11 days

after receipt of the notice,

(2) the landlord sends the notice via registered

mail or by certied mail, return receipt

requested at least ten days before ling the

eviction suit, and

(3) the landlord les and prevails in an eviction

suit against the tenant who did not com-

ply with the notice and demand (Section

24.006[a]).

Can a prevailing landlord recover attorney

fees without sending the notice?

Yes. The prevailing landlord may avoid having to

send the notice and still recover reasonable attorney

fees when the written lease entitles the landlord

to recover attorney fees for an eviction (Section

24.006[b]).

Is it possible for the tenant to recover

reasonable attorney fees from the landlord if

the tenant prevails?

Yes. The prevailing tenant may recover reasonable

attorney fees under two conditions:

(1) The landlord provided the tenant the re-

quired notice under Section 24.006(a) or

(2) The written lease entitles the landlord or the

tenant to recover reasonable attorney fees

(Section 24.006(c)

Is there anything else the prevailing party

may recover?

Yes. The prevailing party is entitled to recover all

court costs (Section 24.006(d)).

If the landlord prevails in the lawsuit for

eviction, what does the court issue so that

the landlord may recover possession of the

premises?

The prevailing landlord is entitled to receive a (1)

judgment for possession of the premises and a (2)

writ of possession.

In this context, what area does the term

premises include?

In this context, the term premises includes the

unit that is occupied or rented and any outside area

or facility that the tenant is entitled to use under a

written lease, an oral rental agreement or any area

held out for the use of tenants generally (Section

24.0061[a]).

Once a judgment of (or for) possession is

issued, how soon can the court issue a writ

of possession?

A writ of possession may not be issued before the

sixth day after the date on which the judgment for

possession was rendered (Section 24.0061[a]).

Are there any exceptions to this rule?

Yes. The writ of possession came be entered earlier

if a possession bond has been le and approved under

the Texas Rules of Civil Procedure and the judgment

of possession has been granted thereafter by default

(Section 24.0061[b]).

Must the court inform the tenant of the

default judgment?

Yes. Within 48 hours after entering the default

judgment, the court must send a copy of the judg-

ment to the premises by rst-class mail (Section

24.0061[c]).

Executing the Writ of Possession

What directives must the writ of possession

entered by the court contain?

The writ of possession direct (orders) the officer

executing the writ to:

• post a written warning on a sheet of paper at

least 8½ by 11 inches on the exterior of the

front door of the rental unit notifying the ten-

ant that the writ has been issued and the execu-

tion of the writ must occur on or after a specic

date and time, which can be no sooner than 24

hours after the warning is posted;

• deliver possession of the premises to the land-

lord;

• instruct the tenant and all persons claiming

under the tenant to leave the premises imme-

diately, and, if the persons fail to comply, they

may be physically removed from the premises;

• instruct the tenant to remove or to allow the

landlord, the landlord's representatives, or other

persons acting under the officer's supervision,

to remove all personal property from the rental

unit other than personal property claimed to be

owned by the landlord; and

• place, or have an authorized person place, the

removed personal property outside the rental

unit to a nearby location that does not block a

public sidewalk, passageway, or street. The re-

moval cannot occur while it is raining, sleeting,

or snowing (Section 24.0061[d]).

Removal and Care

of Personal Property

Are there any exceptions to placing

the removed personal property in an

unprotected area?

Yes. A municipality may provide, without charge,

to either the landlord or the owner of the personal

property, a portable closed container in which the

officer or authorized agent executing the writ will

place the property. The owner of the personal prop-

erty has a reasonable time thereafter in which to

remove it. Otherwise, the municipality may remove

the container and dispose of the contents (Section

24.0061[d-1])

Can the officer executing the writ hire

someone to remove the personal property?

Yes. The writ of possession must authorize the of-

cer, at the officer's discretion, to engage the servic-

es of a bonded or insured warehouseman to remove

and store, subject to applicable law, part or all of

the property at no cost to the landlord or the officer

executing the writ (Section 24.0061[e]).

Can the officer require the landlord to store

the personal property?

No. The officer may not require the landlord to

store the property (Section 24.0061[f]).

Is the officer executing the writ liable for

damages?

It depends. The writ of possession must contain

notice to the officer that under Section 7.003, Civil

Practice and Remedies Code, the officer is not liable

for damages resulting from the execution of the writ

as long as the officer acts in good faith and with rea-

sonable diligence (Section 24.0061[g]).

How much force may the sheriff or

constable use in executing the writ of

possession?

A sheriff or constable may use reasonable force in

executing a writ of possession (Section 24.0061[h]).

Warehouseman's Lien

When does a warehouseman’s lien arise?

A warehouseman’s lien arises when the tenant’s

personal property is removed from the premises as

a result of a writ of possession and thereafter stored

in a bonded or insured public warehouse (Section

24.0062). The warehouseman thereby obtains a lien

on the personal property to the extent of any reason-

able moving and storage charges incurred by the

warehouseman. However, the lien does not arise until

all the tenant’s personal property has been stored.

If the tenant’s personal property is to be removed

and stored under a writ of possession, the execut-

ing officer must give the tenant certain notices. The

notices may be delivered either personally or, if the

tenant is not present when the writ of possession is

executed, sent by rst class mail to the tenant’s last

known address. The delivery of notice by mail must

be sent no later than 72 hours after the execution of

the writ.

What information must the notice contain?

The notice must contain the complete address and

telephone number of the location where the property

may be redeemed. Also, the notice must state all of

the following:

• The tenant’s property is to be removed and

stored by a public warehouseman according to

the Texas Property Code, Section 24.0062.

• The tenant may redeem any of the property,

without paying the moving or storage charges,

on demand, during the time the warehouse-

man is removing the property from the ten-

ant’s premises and before the warehouseman

permanently leaves the tenant’s premises. (This

provision must be underlined or in boldfaced

print.)

The tenant may redeem, within 30 days from the

date of storage, any of the property described below

(hereinafter referred to as “the 16 essential items”)

on demand by payment of the moving and storage

charges reasonably attributable to the following items:

• wearing apparel

• tools, apparatus and books of a trade or profes-

sion

• school books

• a family library

• family portraits and pictures

• one couch, two living room chairs and a dining

table and chairs

• beds and bedding

• kitchen furniture and utensils

• food and foodstuffs

• medicine and medical supplies

• one automobile and one truck

• agricultural implements

• children’s toys not commonly used by adults

• goods that the warehouseman or the ware-

houseman’s agent knows are owned by a person

other than the tenant or an occupant of the

residence

• goods that the warehouseman or the ware-

houseman’s agent knows are subject to a re-

corded chattel mortgage or nancing agreement

• cash

The statute says nothing about partial redemptions

within each group. It is unclear if part of the proper-

ty within a group may be redeemed without redeem-

ing the entire group.

After 30 days of storage have transpired, the two

groups become one. To redeem any of the property,

the tenant must redeem all the property on demand

and pay all moving and storage charges. Naturally,

the redemption must occur before the property is

sold to satisfy the lien as described below.

Finally, the tenant must be told that the ware-

houseman has a lien on the property to secure pay-

ment of the moving and storage charges. The prop-

erty may be sold to satisfy the lien if the property is

not redeemed within 30 days. If the property is sold

to satisfy the lien, the sale must be conducted in

accordance with the Texas Business and Commerce

Code, Sections 7.210, 9.301-9.318 and 9.501-9.507.

Basically, these sections permit the sale of the

property at either a private or public sale, in bulk or

in parcels but always in a commercially reasonable

manner.

When may the tenant intervene?

Before the property is sold to satisfy the lien, the

tenant may intervene judicially for two different

causes (Section 24.0062[i]). Either or both suits must

be brought in the justice court where the eviction

judgment was rendered or in another court in the

county of competent jurisdiction. However, if the

justice court has issued a writ of possession, it has

exclusive jurisdiction for the matters regardless of

the amount in controversy. All proceedings under

Section 24.0062(i) shall take precedence over other

matters as the court’s docket.

First, the tenant may le an action to recover “the

16 essential items” on the ground that the landlord

failed to return the property after timely demand and

payment was made by the tenant.

The statute says nothing about the tenant ling

an action to recover any nonessential items for the

same reason. Also, it is interesting that the statute

designates the landlord as the defendant when the

property is in the possession of the warehouseman.

Second, the tenant also may le a suit to recover

all the property (both essential and nonessential) on

the ground that the amount of the warehouseman’s

moving or storage charges were unreasonable. If

the tenant successfully proves the moving or stor-

age charges are unreasonable, the warehouseman

is barred from recovering any of them (Section

24.0062[h]).

In addition, the prevailing party under Section

24.0062 is entitled to recover actual damages, rea-

sonable attorneys' fees, court costs and, if appropri-

ate, any property withheld in violation of the section

or the value of the property that was sold in viola-

tion of the section.

Can the nal judgment of the county court

in an eviction suit be appealed on the issue

of possession? Are there any exceptions?

No, with one exception. The exception is when

the premises are being used for residential purposes

only. This issue can be appealed (Section 24.007).

Can the judgment of the county court be

stayed pending an appeal?

No, with one exception. The exception is when

the appellant (the party making the appeal) les a su-

persedeas bond in an amount set by the county court

(Section 24.007).

How does the county court set the amount

of the supersedeas bond?

In setting the supersedeas bond, the county court

protects the appellee (probably the landlord in most

cases) to the same extent as in any other appeal,

taking into consideration the value of rents likely to

accrue during appeal, damages that may occur as a

result of the stay during appeal, and other damages

or amounts as the court may deem appropriate (Sec-

tion 24.007).

Does an eviction suit bar any other suits

from being led such as far trespass?

No. An eviction suit does not bar a suit for tres-

pass, damages, waste, rent, or mesne prots (prots

received from the land by the tenant during the

unlawful possession (Section 24.008).

When is an attorney required?

A party to an eviction suit need not be an attorney

(Section 24.011). Others, not just attorneys, generally

may represent themselves in a justice court to bring

either type of suit. Likewise, the authorized agent

of a party, whether an attorney or not, may bring an

eviction suit in a justice court for the nonpayment

of rent or for a hold-over tenant. However, the only

other instance when an authorized agent who is not

a lawyer may bring either suit is when the agent

requests or obtains a default judgment.

When can a judge or justice of the peace be

disqualied?

According to Section 21.005 of the Texas Govern-

ment Code, a judge or a justice of the peace may not

sit in a case if either of the parties is related to the

judge by affinity or consanguinity within the third

degree.

Covenant for Quiet Enjoyment and Constructive Eviction

Chapter 24, Texas Property Code

Landlords may evict tenants judicially according to

the forcible entry and detainer statutes contained in

Chapter 24 of the Texas Property Code. Also, land-

lords may force tenants to leave nonjudicially, either

by breaching the covenant for quiet enjoyment or by

committing acts or omissions amounting to con-

structive eviction.

Unlike judicial eviction, little statutory law ad-

dresses these processes, only case law. Also, unlike

judicial eviction, the decision to terminate the lease

rests primarily with the tenant after the landlord

acts inappropriately.

What is the covenant for quiet enjoyment?

The covenant for quiet enjoyment is a covenant

(or promise) implied by law. It prohibits the landlord

(lessee) from disturbing the tenant’s quiet use and

enjoyment of the property. The covenant covers not

only the landlord’s actions but also those of persons

deriving title from the landlord, such as other ten-

ants. It does not cover acts of strangers.

How is the covenant breached?

Landlords breach the covenant primarily by pre-

venting the tenant from entering the property except

by an appropriate judicial process or in compliance

with statutory guidelines. For example, the covenant

is not breached when the tenant is excluded for bona

de repairs, construction or emergencies if done

in compliance with Section 92.002(b) of the Texas

Property Code. Likewise, no breach results from

exclusion by removing abandoned property (Section

92.002[b]), changing door locks (Section 92.002[c]) or

interrupting utilities (Section 92.002[a]) if done in

compliance with the statutory dictates. The landlord

may breach the covenant, however, by leasing the

property to a third party before the lease term ends.

Because of recent statutory intrusion into this

area, little pertinent case law exists.

What remedies does a tenant have when

landlords breach the covenant?

Unless the landlord’s intrusion is severe, the

tenant’s remedies are limited to damages, attorneys’

fees and a possible injunction to end the interfer-

ence.

More precisely, if the landlord does not strictly

comply with the statutory guidelines for entering

the property, removing abandoned property, chang-

ing door locks or interrupting utilities (Sections

92.002[a], [b] and [c]), the tenant may recover actual

damages, one month’s rent and reasonable attorneys’

fees (Section 92.002[d][2]). The court may deduct

from the recovery any delinquent rent and other

sums for which the tenant is liable to the landlord.

In addition to the statutory remedies previously

described, the tenant also may recover damages al-

lowed by common law (better known as case law).

These include all damages naturally and proximately

resulting from the breach. Lost prots and dimin-

ished rental value are mentioned by Texas cases.

Tenants also may recover punitive damages in cer-

tain instances (Clark v. Sumner, 559 S.W. 2d 914).

Finally, injunctive relief is available when the

landlord has violated a statutory prohibition de-

scribed earlier. Likewise, it is also available when

the disturbance causes irreparable injury or when

damages will not adequately compensate the tenant

(Obets & Harris v. Speed, 211 S.W. 316).

When the intrusion is severe enough to constitute

constructive eviction, the tenant may vacate the

premises and terminate the lease.

What is constructive eviction?

Constructive eviction is, in essence, a material,

substantial and intentional interference with the

tenant’s use and enjoyment of the property. Two ele-

ments are required.

First, the landlord’s conduct materially and perma-

nently interferes with the tenant’s benecial use of

the premises. Second, the tenant leaves the property

because of the interference. Basically, the landlord’s

actions constructively force the tenant to vacate the

premises.

What is the difference between the breach

of covenant for quiet enjoyment and

constructive eviction?

No ironclad distinction is made between the two.

However, a breach of the covenant for quiet enjoy-

ment generally applies to situations where the ten-

ant is denied physical access to the property. Texas

statutory law indicates several instances when the

landlord’s physical invasion is permissible. Con-

structive eviction, on the other hand, applies when

the tenant is denied the benecial use of the prop-

erty. No statutory law in Texas addresses the issue.

What four things are required by Texas case

law for constructive eviction?

Texas case law has narrowed constructive eviction

to the following four-part test:

• the landlord intends for the tenant to no longer

enjoy the premises (this may be presumed),

• material acts or omissions by the landlord, the

landlord’s agents or those acting with the land-

lord’s permission substantially interfere with

the tenant’s use and enjoyment of the property

for the purposes for which it was rented,

• the acts permanently deprive the tenant of the

use and enjoyment of the premises, and

• the tenant abandons the property within a rea-

sonable time after the acts or omissions occur

(Stillman v. Youmans, 266 S.W. 2d 913).

The tenant cannot continue to occupy the premis-

es and allege constructive eviction. The tenant must

be forced to leave involuntarily.

What are some examples of constructive

eviction from Texas case law?

An early 1929 Texas case held that the landlord’s

failure to abate a nuisance constructively evicted

the tenant (Maple Terrace Apt. Co. v. Simpson, 22

S.W. 2d 698). Other examples include the unauthor-

ized removal of xtures; loud, abusive language and

threats to close the tenant’s business made by the

landlord in the presence of the tenant’s customers;

the removal of the tenant’s advertising sign from

the front of the building; and excessive noises and

vibrations caused by the landlord’s elevator in the

building.

What remedies does a tenant have when

constructively evicted?

Aside from the remedy of abandoning the premises

and terminating the lease, the tenant may recover

damages caused by the landlord’s wrongful eviction.

For instance, the tenant may recover the difference

between the agreed rent for the duration of the lease

and comparable rent paid elsewhere. Likewise, lost

prots, the reasonable cost of moving and the depre-

ciation in value of the property caused by the move

are recoverable (Reavis v. Taylor, 162 S.W. 2d 1030).

In addition, punitive damages are recoverable

when the landlord acted knowingly or maliciously

(Van Sickle v. Clark, 510 S.W. 2d 664).

Residential Rental Locators

Section 24, Article 6573(a), Texas Civil Statutes

Effective January 1, 1996, the Texas Real Estate

License Act, Article 6573a of Texas Civil Statutes

(this Act) is amended by adding Section 24. The law

requires residential rental locators to have a real

estate broker’s or salesman’s license issued by the

Texas Real Estate Commission (TREC).

Who is a residential rental locator?

A residential renter locator is a person, other than

the owner of the property or a person exempted by

Section 3 of this act, who offers, for consideration, to

locate a unit in an apartment complex for lease to a

prospective tenant (Section 24[a]).

Among others, Section 3 exempts on-site manag-

ers of apartment complexes; an owner or the owner's

employees in renting or leasing the owner's own real

estate whether improved or unimproved; transac-

tions involving the sale, lease or transfer of cemetery

lots; or transactions involving the renting, leasing or

management of hotels or motels.

Must residential rental locators have a real

estate license?

A person may not engage in business as a resi-

dential rental locator in this state unless the person

holds a license issued under this act to operate as a

real estate broker or real estate salesman and com-

plies with the continuing education requirements

under Section 7A of this act.

Where must the real estate license be

posted?

Each residential rental locator shall post in a con-

spicuous place accessible to clients and prospective

clients the locator's license, a statement that the

locator is licensed by the commission, and the name,

mailing address and telephone number of the com-

mission as provided by Section 5(q) of this act.

What if a person does not obtain the

required license for residential rental

locators?

A person who violates this law may be charged

with a Class B misdemeanor, according to Section

24(f).

Are residential rental locators subject to

any rules regarding advertising?

The commission by rule shall adopt regulations

and establish standards relating to permissible forms

of advertising by a person licensed under this section.

What if the licensed residential rental

locator violates any of the commission's

rules on advertising or any other rules?

A violation of this section by a residential rental

locator constitutes grounds for the suspension or

revocation of the person's license and for the assess-

ment of an administrative penalty under Section 19A

of this act.

Can the commission waive any of the

requirements for a license?

The commission by rule may provide for a waiver

of some or all of the requirements for a license under

this act, notwithstanding any other provision of this

act, if the applicant was previously licensed in this

state within the ve-year period prior to the ling of

the application.

Telecommunications

Subchapter C, Chapter 214, Texas Local Government Code

The Public Utility Regulator Act (PURA), effec-

tive September 1, 1995, establishs a comprehensive

regulatory system to ensure that public utility rates,

operations and services are just and reasonable to

Texas consumers.

The legislative act initiating the law, HB 2128, is

comprehensive, covering more than 50 sections and

70 pages. The bill enacts at the state level federal

requirements implemented under the Federal Com-

munications Act of 1934, the Omnibus Budget

Reconciliation Act of 1993 and the most recent rules

promulgated by the Federal Communications Com-

mission (FCC).

How do the new telecommunications

regulations affect landlords and tenants?

Only a fraction of the act deals with landlord-ten-

ant issues. Most relevant are the bill’s:

• denitions in Section 7 (PURA, Section 3.002),

• right-of-way access provisions in Section 27

(PURA, 3.255 [a] and [b]), and

• nondiscrimination provisions in Section 29

(PURA, Section 3.255).

The following synopsis of the law is based on a

presentation by Houston attorney Michael A. Ja-

cobs at the 17th Annual Advanced Real Estate Law

course.

The denition of telecommunications provider

(see p. 62) now includes a shared tenant provider and

providers of other radio, telephone and specialized

telecommunications services (Section 3.002). The act

grants to this expanded group full access to existing

public utility easements created by plat or easement

instrument by municipalities and other political

subdivisions (Section 3.255 [b]).

What are the nondiscrimination provisions?

The nondiscrimination provisions prohibit public

and private property owners from denying telecom-

munications providers access to buildings (Section

3.2555). A landlord is specically prohibited from

interfering with or preventing a telecommunications

utility from installing service facilities requested

by a tenant on the landlord’s property. The land-

lord cannot discriminate against one or more such

telecommunications utilities for installation, terms,

conditions or compensation of facilities provided to

a tenant. Neither can a landlord demand or accept an

unreasonable payment in any form from a tenant or

the tenant’s telecommunications provider for allow-

ing utilities on or within the landlord’s property. The

landlord cannot discriminate in favor of or against

a tenant in any manner regarding telecommunica-

tions, including rental charges.

These nondiscrimination provisions are mandated

by federal communications rules. However, the most

recent bill tries to clarify that, within the param-

eters of the new federal requirements, a landlord in

Texas may impose reasonable conditions on tenants

and their telecommunications providers who seek

to install new facilities on the landlord’s property.

(Subsection 3.2555 [d]).

What reasonable conditions may the

landlord impose?

Acting within the nondiscrimination requirements

stated in the act, the landlord (private property

owner) may:

• protect the safety, security, appearance and

condition of the property as well as the safety

and convenience of other persons;

• limit the times when a telecommunications

utility has access to the property to install

facilities;

• require compensation for damage caused by

the installation, operation or removal of tele-

communications facilities;

• require the tenant or the utility to bear the

cost of installation, operation or removal of the

facilities;

• limit the number of telecommunications utili-

ties having access to the property if the owner

can demonstrate that space constraints de-

mand it; and

• require reasonable, nondiscriminatory compen-

sation from the telecommunications utility.

Who enters into the contract with the

utility under the right-of-way access

provisions?

A landlord is not required to enter into a contract

directly with a telecommunications utility that

requests access to tenant services (Subsection 3.2555

[i]). The implication is that a landlord might instead

require a tenant to handle these direct contractual

obligations with the telecommunications company,

and the landlord instead would contract only with

the tenant.

What key denitions do landlords and

tenants need to know?

The denitions in the PURA are both lengthy and

complex. The two denitions relevant to landlords

and tenants are public utility and telecommunica-

tions provider.

Public utility. Public utility or utility means “any

person, corporation, river authority, cooperative

corporation or any combination thereof, other than a

municipal corporation, or their lessees, trustees and

receivers, now or hereafter owning or operating for

compensation in this state equipment or facilities for

the conveyance, transmission or reception of com-

munications over a telephone system as a dominant

carrier (hereafter telecommunications utility)” (Sec-

tion 3.002 [9]).

A person or corporation not otherwise a public

utility within the meaning of the act is not consid-

ered such solely because they furnish or maintain

a private system or manufacture, distribute, install

or maintain communications equipment and acces-

sories on customers’ premises. Unless provided in

Sections 3.606 and 3.608, nothing in the act should

be construed to apply to companies whose only form

of business is:

• telecommunications managers,

• central office-based or customer-based PBX-

type sharing/resale arrangements suppliers,

• telegraph services,

• television stations,

• radio stations,

• community antenna television services, or

• radio-telephone services other than commer-

cial mobile service providers under FCC rules

and other laws.

One exception may be radio-telephone services

provided by wire-line telephone companies under the

“Domestic Public Land Mobile Radio Service and

Rural Service” rules of the FCC.

Public utility also includes interexchange telecom-

munications carriers (including resellers), specialized

common carriers, other resellers of communications,

other communications carriers who convey, trans-

mit or receive communications over a telephone

system and providers of operator services as dened

in Section 3.052 (a). Subscribers to customer-owned

pay telephone service are not considered telecommu-

nications utilities. Separated affiliate and electronic

publishing joint ventures as dened by Subtitle L are

telecommunications utilities, but the commission’s

regulatory authority over them is limited.

Public utility does not include any person or cor-

poration not otherwise a public utility that furnishes

the described services or commodity only to itself,

its employees or its tenants when such service or

commodity is not resold to or used by others.

Telecommunications provider. Telecommunica-

tions provider means “a certied telecommunica-

tions utility, a shared tenant service provider, a non-

dominant carrier of telecommunications services,

a provider of authorized radio-telephone service, a

telecommunications entity that provides central of-

ce-based, PBX-type sharing or resale arrangements,

an interexchange telecommunications carrier, a

specialized common carrier, a reseller of communi-

cations, a provider of operator services, a provider

of customer-owned pay telephone service and other

persons or entities that the commission may from

time to time nd provide telecommunications ser-

vices to customers in this state.”

The term does not include a provider of enhanced

or information services, another user of telecom-

munications services who does not also provide

telecommunications services, state agencies or state

institutions of higher education or services provided

by state agencies or state institutions of higher

education.

Swimming Pool Enclosures

Subchapter C, Chapter 214, Texas Local Government Code

Effective September 1, 1993, local municipalities

can pass and enforce ordinances regulating enclo-

sures surrounding private swimming pools. (Texas

Local Government Code, Subchapter C, Chapter

214, added by the 73rd Legislature.)

Chapter 214 is unique because the statute permits

the municipality, by its ordinances, to make repairs to

existing swimming pool enclosures when the land-

owner fails to comply. A notice and hearing must be

provided rst. A lien may be placed on the property to

secure repayment unless it is a homestead.

Effective September 1, 1993, what type

of ordinances may municipalities adopt

concerning minimum standards for existing

swimming pool fences?

A municipality may establish by ordinance

minimum standards for swimming pool fences and

enclosures. Also, a municipality may adopt other

ordinances necessary to carry out this subchapter

(Section 214.101[a]).

Basically, the ordinance may require the owner of

a swimming pool to maintain any swimming pool

enclosure or fence in such a manner that it does

not pose a hazard to the public health, safety and

welfare. Nothing is said about the installation of

an enclosure fence, only its maintenance (Section

214.101[b]).

A municipality may require a property owner to

repair, replace, secure or otherwise maintain a swim-

ming pool enclosure or fence in compliance with the

minimum standards set forth in the ordinance. Be-

fore the municipality may order compliance, a notice

and hearing must be provided the owner. The mu-

nicipality or an appropriate municipal official, agent

or employee may determine when an enclosure or

fence violates the ordinance (Section 214.101[c]).

To whom must the notice be sent of a

pending hearing about the condition of the

enclosure or fence?

As a general rule, the notice is sent to the property

owner. The statute implies, but does not state, that

the notice should go to the party in possession of the

property if that party is not the owner.

If the enclosure or fence is on unoccupied property

or on property occupied only by persons who do not

have a right of possession, the notice must be sent to

the owner. The notice must state the municipality’s

pending action to repair, replace, secure or otherwise

remedy an existing swimming pool’s enclosure or

fence (Section 214.101[d].

What if the owner does not correct the

violation after the hearing has been held?

If the owner does not bring the enclosure or fence

into compliance, the municipality may repair,

replace, secure or otherwise remedy an enclosure

or fence that is damaged, deteriorated, substandard,

dilapidated or otherwise in a state that poses a haz-

ard to the public health, safety and welfare (Section

214.101[b]).

Who bears the costs if the municipality

repairs the enclosure or fence?

Ultimately the property owner must bear the costs

and expenses. If a municipality incurs any repair ex-

penses, and if the property owner does not reimburse

the city, the municipality may assess (or place) a lien

on the property unless, of course, the property is a

homestead protected by the Texas Constitution. The

lien may be extinguished by the property owner or

anyone having a legal interest in the property (Sec-

tion 214.101[e]).

The lien arises and attaches to the property at the

time the notice of the lien is recorded in the office of

the county clerk in the county in which the property

is situated. The notice of the lien must contain the

name and address of the owner if readily available,

a legal description of the real property where the

swimming pool or the enclosure or fence is situated,

the amount of expenses incurred by the municipality

and the balance due. The lien is a privileged lien sub-

ordinate only to tax liens and all previously recorded

bona de mortgage liens attached to the real prop-

erty to which the municipality’s lien attaches.

The statute is designed to rectify the problem of

substandard fences enclosing private swimming

pools. However, the language sometimes refers

to the property “in which the swimming pool or

enclosure or fence is situated.” It is unclear why

the reference is not to the property “on which” the

swimming pool’s enclosure or fence is located.

In addition to the lien, can a municipality

assess any penalties for violating the

ordinance?

An ordinance adopted under this subchapter may

provide for a penalty, not to exceed $1,000, for a vio-

lation of the ordinance. The ordinance may provide

that each day of violation constitutes a separate of-

fense (Section 214.101[f]).

Can a municipality enter private unoccupied

property to check on possible violations?

A municipal official, agent or employee, acting

under the authority granted by this subchapter or

any ordinance adopted under this subchapter, may

enter any unoccupied premises at a reasonable time

to inspect, investigate or enforce the powers granted

under this subchapter or any ordinance adopted pur-

suant to this subchapter (Section 214.101[g]).

Can a municipality enter private occupied

property to check on possible violations? Is

a prior notice required?

After giving a minimum of 24 hours notice to the

occupant, a municipal official, agent or employee,

acting under the authority granted by this subchap-

ter or any ordinance adopted under this subchapter,

may enter any occupied premises to inspect, investi-

gate or enforce the powers granted or any ordinance

adopted under this subchapter (Section 214.101[g]).

What type of liability does the municipality

face when remedying an enclosure or fence

that is in violation of the ordinance?

A municipality and its officials, agents or employ-

ees shall be immune from liability for any acts or

omissions not knowingly committed in eliminating

dangerous conditions posed by an enclosure or fence

that is damaged, deteriorated, substandard, dilapidat-

ed or that poses a hazard to the public health, safety

and welfare.

Also, the municipality and its officials, agents or

employees are immune from liability for inadver-

tent acts or omissions associated with eliminating

previous or subsequent dangerous conditions on the

property (Section 214.101[g]).

Is the authority granted by the subchapter

the only authority a municipality may have

in this regard?

The authority granted by this subchapter is in ad-

dition to that granted by any other law.

Pool Yard Enclosures

Chapter 757 Texas Health and Safety Code

Effective January 1, 1994, the state of Texas

regulates pool yard enclosures on multiunit rental

complexes and also on property owners associations

that own, control or maintain pools. (By denition, a

pool includes a permanent hot tub or spa more than

18 inches deep.) The chapter dictates standards for

existing pool yard enclosures and mandates the con-

struction of enclosures in compliance with the law

where they do not exist. The standards are designed

to prevent swimming pool deaths and injuries.

The legislators are serious about compliance. Civil

penalties not exceeding $5,000 may be imposed for

noncompliance after notice has been given.

Part of the problem facing the regulated pool-yard

owners is interpreting the statutory language. It is

quite specic and often difficult to understand. A

few examples or sketches by the legislators would

have been helpful.

Denitions are essential to understanding the

requirements. Chapter 757 of the Health and Safety

Code denes 16 terms applicable to pool yard fences

and to the doors and windows opening to a pool yard.

The denitions are reproduced at the end of this

section, not in the Glossary. The following terms are

dened: doorknob lock, dwelling or rental dwelling,

French doors, keyed dead bolt, keyless bolting de-

vice, multiunit rental complex, pool, pool yard, pool

yard enclosure or enclosure, property owners asso-

ciation, self-closing and self-latching device, sliding

door, handle latch, sliding door pin lock, sliding

door security bar, tenant and window latch.

What are the required dimensions and

characteristics of a required pool yard

enclosure according to the subchapter?

According to Section 757.003 of the Health and

Safety Code, the required dimensions and character-

istics are as follows:

(1) The height of the pool yard enclosure must

be at least 48 inches as measured from the

ground on the side away from the pool.

(2) Any openings under the pool yard enclosure

may not allow a sphere four inches in diam-

eter to pass underneath.

(3) The openings within the enclosure may not

allow a sphere four inches in diameter to

pass through them if the pool yard enclosure

is constructed with horizontal and verti-

cal members and the distance between the

tops of the horizontal members is at least 45

inches or more.

(4) The openings within the enclosure may not

allow a sphere 1 3/4 inches in diameter to

pass through if the pool yard enclosure is

constructed with horizontal and vertical

members and the distance between the tops

of the horizontal members is less than 45

inches.

(5) Chain link fencing is prohibited for new pool

yard enclosures constructed after January

1, 1994. The use of diagonal fencing mem-

bers that are lower than 49 inches above the

ground is prohibited for new pool yard enclo-

sures constructed after January 1, 1994.

(6) Decorative designs or cutouts on or in the

pool yard enclosure may not contain any

openings greater than 1 3/4 inches in any

direction.

(7) Indentations or protrusions in a solid pool

yard enclosure without any openings may

not be greater than normal construction

tolerances and tooled masonry joints on the

side away from the pool.

(8) Permanent equipment or structures may not

be constructed or placed so they are read-

ily available for climbing over the pool yard

enclosure.

(9) The wall of a building may be part of the

pool yard enclosure only if the doors and

windows in the wall are in compliance with

Sections 757.006 and 757.007 discussed later.

Are there any required minimum distances

between the pool and the pool yard

enclosure?

There are no minimum required distances between

the pool and the pool yard enclosure fence other than

for minimum walkways around the pool. However,

the “distances for minimum walkways” are not

specied (Section 757.003[k]).

Do the requirements of the chapter apply to

secondary pool yard enclosures?

The dimensions and characteristics of pool yard

enclosures specied in Chapter 757 do not apply to

secondary pool yard enclosures, located either inside

or outside the primary pool yard enclosure (Section

757.003[k]).

What characteristics must a gate in the

enclosure have?

A gate in a fence or wall enclosing a pool yard

must have both a self-closing and self-latching

device and hardware enabling it to be locked, at the

option of whoever controls the gate, by a padlock or

a built-in lock operated by key, card or combination.

Also, the gate must open outward away from the

pool yard (Section 757.004[a]).

At what height must the required gate latch

be installed?

The gate latch must be installed at 60 inches above

the ground. It may be installed lower under two

conditions:

(1) the latch is installed on the pool yard side

of the gate only and is at least three inches

below the top of the gate and

(2) the gate or enclosure has no opening greater

than one-half inch in any direction within

18 inches from the latch, including the space

between the gate and the post to which the

gate latches.

A gate latch may be located 42 inches or higher

above the ground if the gate cannot be opened from

both sides except by key, card or combination (Sec-

tion 757.004[c]). Also, the requirements specied in

Sections 75.004[a] and [b] above do not apply if the

pool yard enclosure was constructed or modied

before January 1, 1994, in compliance with existing

municipal ordinances as discussed later in Section

757.005.

What are the two exceptions to the

requirements of Sections 757.003 and

757.004 when the pool yard enclosure was

constructed or modied before January

1, 1994, and if there were no municipal

ordinances containing standards for

pool yard enclosures at the time of the

construction or modication?

First, if the enclosure is constructed with chain

link metal fencing, the openings in the enclosure

may not allow a sphere 2 1/4 inches in diameter to

pass through it (Section 757.005[a][1]).

Second, if the enclosure is constructed with hori-

zontal and vertical members, and if the distance be-

tween the tops of the horizontal members is at least

36 inches, the openings in the enclosure may not

allow a sphere 4 inches in diameter to pass through

it (Section 757.005[a][2]).

What if the pool yard enclosure was

constructed or modied before January 1,

1994, according to applicable municipal

ordinances in effect at the time?

According to Section 757.005(b), if applicable mu-

nicipal ordinances were in effect at the time, and if

the construction or modication was in compliance

with the ordinance, the prior statewide dimensions

and characteristics of a pool yard enclosure specied

in Sections 757.003, 757.004[a][3] and 757.004[b] do

not apply.

What are the required statewide standards

for a door, sliding glass door and French

door opening directly onto a pool yard?

If the date of electrical service for initial construc-

tion of the building or pool is on or after January

1, 1994, a door, sliding glass door or French door

may not open directly into a pool yard (Section

757.006[a]).

However, according to Section 757.006[b], a door,

sliding glass door or French door may open directly

into a pool yard if the electrical service for initial

construction of the building or pool was before

January 1, 1994. However, the doors must meet the

requirements of Section 757.006(c), the sliding glass

door must meet the requirements of 757.006(e) and

the French doors must meet the requirements of

757.006(d).

What are the requirements of Section

757.006(c) for doors opening into the pool

yard?

If a door of a building, other than a sliding glass

door or screen door, opens into the pool yard, the

door must have a:

(1) latch that automatically engages when the

door is closed,

(2) spring-loaded door-hinge pin, automatic door

closer or similar device to cause the door to

close automatically, and

(3) keyless bolting device that is installed not

less than 36 inches or more than 48 inches

above the interior oor (Section 757.006[c]).

What are the requirements of Section

757.006(e) for sliding glass doors opening

into the pool yard?

A sliding glass door that opens into a pool yard

must have a:

(1) sliding door handle latch or sliding door se-

curity bar that is installed not more than 48

inches above the interior oor and

(2) sliding door pin lock that is installed not

more than 48 inches above the interior oor

(Section 757.006[e]).

What are the requirements of Section

757.006(d) for French doors opening into the

pool yard?

French doors are unique. One of the French doors

that opens into a pool yard must have a latch that

automatically engages when the door is closed. The

other door must have either:

(1) a keyed dead bolt or keyless bolting device

that inserts into the doorjamb above the door

and a keyless bolting device that inserts into

the oor or threshold or

(2) a bolt with at least a 3/4-inch throw installed

inside the door and operated from the edge

of the door that can be inserted into the

doorjamb above the door and another bolt

with at least a 3/4-inch throw installed

inside the door and operated from the edge of

the door that can be inserted into the oor or

threshold (Section 757.006[d]).

There is an exception to these requirements. A

door, sliding glass door or French door that opens

into a pool yard from an area of a building that is not

used by residents and that has no access to an area

outside the pool yard is not required to have a lock,

latch, dead bolt or keyless bolting device (Section

757.006[f]).

Are there any height requirements for

the locking devices attached to the doors,

sliding glass doors and French doors opening

into the pool yard?

A keyed dead bolt, keyless bolting device, sliding

door pin lock or sliding door security bar installed

before September 1, 1993, may be installed not more

than 54 inches from the oor (Section 757.006[g]).

Are there any special requirements for the

throw lengths for either keyed or keyless

dead bolts on door locking devices attached

to the door or French doors opening into the

pool yard?

A keyed dead bolt or keyless dead bolt installed in

a dwelling on or after September 1, 1993, must have

a bolt with a throw of not less than one inch (Section

757.006[h]).

If a wall with windows is part of the pool

yard enclosure, what are the restrictions on

the windows?

A building wall constructed before January 1, 1994,

may not be used as part of a pool yard enclosure un-

less (1) each window in the wall has a latch and (2)

each window screen is affixed by a window screen

latch, screws or similar means. This section does not

require the installation of window screens. A build-

ing wall constructed on or after January 1, 1994, may

not be used as part of a pool yard enclosure unless

each ground oor window in the wall is permanently

closed and unable to be opened (Section 757.007).

What about doors, sliding glass doors,

windows and window screens on dwellings

located within an enclosed pool yard?

According to Section 757.008, each door, slid-

ing glass door, window and window screen of each

dwelling unit in the enclosed pool yard must com-

ply with Sections 757.006 and 757.007 previously

described.

Section 757.008 appears to exempt or except

French doors on dwellings located in an enclosed

pool yard.

Whose duty is it to inspect, maintain, repair

and keep in good working order all the

devices surrounding the pool yard enclosure

without a tenant’s request?

According to Section 757.009, an owner of a multi-

unit rental complex or a rental dwelling in a con-

dominium, cooperative or town home project with

a pool or a property owners association that owns,

controls or maintains a pool shall exercise ordinary

and reasonable care to inspect, maintain, repair and

keep in good working order the pool yard enclosures,

gates and self-closing and self-latching devices re-

quired by this chapter (Section 757.009[a]).

How often must the inspections take place?

The pool yard enclosures, gates and self-closing

and self-latching devices on gates shall be inspected

no less than once every 31 days (Section 757.009[c]).

Can the inspection schedule be waived or

expanded?

The inspection, repair and maintenance required

under this section may not be waived under any cir-

cumstances and may not be enlarged except by writ-

ten agreement with a tenant or occupant or as other-

wise allowed by this chapter (Section 757.009[d]).

What devices and other items must be

inspected, maintained, repaired or kept in

good working only after a tenant’s request?

Those responsible shall exercise ordinary and

reasonable care to maintain, repair and keep in good

working order the window latches, sliding door

handle latches, sliding door pin locks and sliding

door security bars required by this chapter after

request or notice from the tenant that those devices

are malfunctioning or in need of repair or replace-

ments (Section 757.009[b]).

How must the request be communicated?

A request or notice under this subsection may

be given orally unless a written lease or the rules

governing the property owners association require

the request or notice be in writing. The requirement

in the lease or rules must be in capital letters and

underlined or in ten-point boldfaced print (Section

757.009[b]).

How does this subchapter interact with

conicting municipal ordinances, con-

icting lease provisions and conicting

rules promulgated by the Texas Board of

Health?

A pool yard enclosure constructed or modied

before January 1, 1994, in compliance with a munici-

pal ordinance may not be required to construct the

enclosure differently by a local governmental entity,

common law or any other law (Section 757.010[a]).

However, a municipality may continue to re-

quire greater overall height requirements for pool

yard enclosures if the requirements exist under the

municipality’s ordinances on January 1, 1994 (Sec-

tion 757.010[c]).

A tenant or occupant in a multiunit rental com-

plex and a member of a property owners associa-

tion may, by express written agreement, require the

owner of the complex or the association to exceed

those standards. By the same token, an owner of a

multiunit rental complex or a rental dwelling in a

condominium, cooperative or town home project

with a pool or a property owners association that

owns, controls or maintains a pool may, at the

person’s option, exceed the standards of this chapter

or those adopted by the Texas Board of Health (Sec-

tion 757.010[b]).

Finally, the Texas Board of Health may adopt rules

requiring standards for design and construction of

pool yard enclosures that exceed the requirements of

this chapter. An owner of a multiunit rental complex

or a rental dwelling in a condominium, cooperative

or town home project with a pool or a property own-

ers association that owns, controls or maintains a

pool shall comply with and shall be liable for failure

to comply with those rules to the same extent as if

they were part of this chapter (Section 757.011).

Who may enforce the provisions of this

subchapter?

A tenant in a multiunit rental complex, a member

of a property owners association, a governmental

entity or any other person or the person’s represen-

tative may maintain an action against the owner

or property owners association for failure to com-

ply with the requirements of this chapter (Section

757.012[a]).

Also, the attorney general, a local health depart-

ment, a municipality or a county having jurisdiction

may enforce this chapter by any lawful means, in-

cluding inspections, permits, fees, civil nes, crimi-

nal prosecutions, injunctions. After required notice,

a governmental entity may construct or repair pool

yard enclosures that do not exist or that do not com-

ply with this chapter (Section 757.012[c]).

The ability of a governmental unit to construct or

repair a pool yard enclosure not in compliance with

this chapter appears more of an afterthought than

a well planned rule. Nothing is mentioned about

where the notices must be sent, what the waiting

period is or how the governmental entity will be

reimbursed. Perhaps a reference to the procedure

described in Subchapter C, Chapter 214 of the Local

Government Code discussed earlier dealing with

municipal ordinances governing swimming pool

enclosures would have been helpful.

What can a prevailing party recover for a

violation of this subchapter?

A prevailing party under this subchapter may

obtain:

(1) a court order directing the owner or property

owners association to comply with this chapter,

(2) a judgment against the owner or property own-

ers association for actual damages resulting

from the failure to comply with the require-

ments of this chapter,

(3) a judgment against the owner or property own-

ers association for punitive damages resulting

from the failure to comply with the require-

ments of this chapter if the actual damages to

the person were caused by the owner’s or prop-

erty owners association’s intentional, malicious

or grossly negligent actions,

(4) a judgment against the owner or property own-

ers association for actual damages, and if ap-

propriate, punitive damages, where the owner

or association was in compliance with this

chapter at the time of the pool-related damag-

ing event but was consciously indifferent to

access being repeatedly gained to the pool yard

by unauthorized person, or

(5) a judgment against the owner or property own-

ers association for a civil penalty of not more

than $5,000 if the owner or property owners

association fails to comply with this chapter

within a reasonable time after written notice

is given by a tenant of the multiunit rental

complex or a member of the property owners

association (Sections 757.012[a] and [b]).

The word “or” was strategically inserted after the

fourth alternative remedy listed above. This means

that the plaintiff must choose which of the ve rem-

edies to pursue. Recovery is limited to only one.

Also, in addition to the fth alternative, the court

may award reasonable attorney fees and costs to the

prevailing party.

May a tenant request certain repairs in a

multiunit rental complex? How must the

request be communicated?

According to Section 757.013, a tenant in a multi-

unit rental complex with a pool may orally request

repair of a keyed dead bolt, keyless bolting device,

sliding door latch, sliding door pin lock, sliding

door security bar, window latch or window screen

latch unless a written lease executed by the tenant

requires that the request be in writing. Even then,

the lease provision must be in capital letters and

underlined or in 10-point boldfaced print. A request

for repair may be given to the owner or the owner’s

managing agent.

This is a confusing section. It appears to add little

and overlaps Section 757.009 noted earlier. Section

757.009 requires an owner of a multiunit rental

complex to maintain, repair and keep in good work-

ing order window latches, sliding door pin locks

and sliding door security bars when requested by

a tenant. It is unclear why the same provision was

repeated here.

Does this subchapter require the enclosure

of water other than in pools?

The owner of a multiunit rental complex or a prop-

erty owners association is not required to enclose a

body of water or to construct barriers between the

owner’s or property owners association’s property

and a body of water such as an ocean, bay, lake,

pond, bayou, river, creek, stream, spring, reservoir,

stock tank, culvert, drainage ditch, detention pond

or other ood or drainage facility (Section 757.014).

How does this subchapter interact with

other laws and statutes?

The duties established by this chapter for an owner

of a multiunit dwelling project, an owner of a dwell-

ing in a condominium, cooperative or town home

project and a property owners association supersede

those established by common law, the Property

Code, the Health and Safety Code and all but Sec-

tion 214.101 of the Local Government Code. The

chapter does not supersede either Section 214.101 of

the Local Government Code noted earlier nor any

local ordinances relating to duties to inspect, install,

repair or maintain:

• pool yard enclosures,

• pool yard enclosure gates and gate latches, in-

cluding self-closing and self-latching devices,

• keyed dead bolts, keyless bolting devices, slid-

ing door handle latches, sliding door security

bars, self-latching and self-closing devices and

sliding door pin locks on doors that open into a

pool yard area, and

• latches on windows that open into a pool yard

area. (Section 757.015[a]).

However, this subchapter does not affect any du-

ties of a rental dwelling owner, lessor, sublessor,

management company or managing agent under Sub-

chapter D, Chapter 92, Property Code dealing with

installation and maintenance of security devices.

Are the remedies described in Section

757.012 exclusive?

The remedies contained in this chapter are not

exclusive and are not intended to affect existing

remedies allowed by law or other procedure (Section

757.016).

Section 757.015 stating that this chapter super-

sedes nearly all existing laws and Section 757.016

stating that the chapter is not intended to affect

existing remedies appear to conict. If a law is super-

seded, so are its remedies.

How shall the provisions of this subchapter

be interpreted?

The provisions of this chapter shall be construed

liberally to promote its underlying purpose — to

prevent swimming pool deaths and injuries in this

state (Section 757.017).

Denitions for Swimming Pool Enclosures

The following 16 terms are dened in Section

757.001 of the Health and Safety Code. The deni-

tions are limited to Chapter 757. They are not to be

confused with the denition of terms in the Glos-

sary used in the Texas Property Code.

Doorknob lock — a lock in a doorknob that is oper-

ated from the exterior with a key, card or combina-

tion and from the interior without a key, card or

combination.

Dwelling or rental dwelling — one or more rooms

rented to one or more tenants for use as a permanent

residence under a lease. The term does not include a

room rented to overnight guests.

French door — double doors, sometimes called

double-hinged patio doors, that provide access from a

dwelling interior to the exterior. Each door is hinged

and closable so that the edge of one door closes im-

mediately adjacent to the edge of the other door with

no intervening partition. French door means either

one of the two doors.

Keyed dead bolt — a door lock that is not in the

doorknob, that locks by a bolt in the doorjamb, that

has a bolt with at least a 1-inch throw if installed

after September 1, 1993. It is operated from the exte-

rior by a key, card or combination and operated from

the interior by a knob or lever without a key, card

or combination. The term includes a doorknob lock

that contains a bolt with at least a 1-inch throw.

Keyless bolting device — a door lock not in the door-

knob that locks by one of the following three ways:

(a) with a bolt with a 1-inch throw into a strike

plate screwed into the portion of the door-

jamb surface that faces the edge of the door

when the door is closed or into a metal door-

jamb that serves as the strike plate, operable

only by knob or lever from the door’s inte-

rior and not in any manner from the door’s

exterior, and that is commonly known as a

keyless dead bolt;

(b) by a drop bolt system operated by placing a

central metal plate over a metal doorjamb

restraint which protrudes from the door-

jamb and is affixed to the doorjamb frame by

means of three case-hardened screws at least

3 inches in length. One half of the central

plate must overlap the interior surface of the

door; the other half must overlap the door-

jamb when the plate is placed over the door-

jamb restraint. The drop bolt system must

prevent the door from being opened unless

the central plate is lifted off of the doorjamb

restraint by a person on the interior of the

door; or

across the entire interior of the door and

secured in place at each end of the bar or

tube by heavy-duty metal screw hooks. The

screw hooks must be at least 3 inches long

and they must be screwed into the door

frame stud or wall stud on each side of the

door. The bar or tube must be securable to

both screw hooks and permanently attached

to the door frame stud or wall stud. When

secured to the screw hooks, the bar or tube

must prevent the door from being opened

unless the bar or tube is removed by a person

on the interior of the door.

The term does not include a chain latch, ip

latch, surface-mounted slide bolt, mortise door bolt,

surface-mounted barrel bolt, surface-mounted swing

bar door guard, spring-loaded nightlatch, foot bolt or

other lock or latch.

Multiunit rental complex — two or more dwelling

units in one or more buildings that are under com-

mon ownership, managed by the same owner, man-

aging agent or management company, and located on

the same lot or tract of land or adjacent lots or tracts

of land. The term includes a condominium proj-

ect. The term does not include a facility primarily

renting rooms to overnight guests or a single-family

home or adjacent single-family homes that are not

part of a condominium project.

Pool — a permanent swimming pool, permanent

wading or reection pool, or permanent hot tub or

spa more than 18 inches deep, located at ground

level, above ground, below ground or indoors.

Pool yard — an area that contains a pool.

Pool yard enclosure or enclosure — a fence, wall

or combination of fences, walls, gates, windows or

doors that completely surrounds a pool.

Property owners association — an association of

property owners for a residential subdivision, con-

dominium, cooperative, town home project or other

project involving residential dwellings.

Self-closing and self-latching device — a device that

causes a gate to close and latch automatically with-

out human or electrical power.

Sliding door handle latch — a latch or lock near the

handle on a sliding glass door that is operated with

or without a key and designed to prevent the door

from being opened.

Sliding door pin lock — a pin or rod inserted from

the interior of a sliding glass door opposite the door’s

handle and designed to prevent the door from being

opened or lifted.

Sliding door security bar — a bar or rod that can

be placed at the bottom of or across the interior of

the xed panel of a sliding glass door. It is designed

to prevent the sliding panel of the door from being

opened.

Tenant — a person who is obligated to pay rent or

other consideration and who is authorized to occupy

a dwelling, to the exclusion of others, under an oral

or written lease or rental agreement.

Window latch — a device on a window or window

screen that prevents opening and is operated without

a key only from the interior.

Ascertaining the Criminal History of Employees of

Residential Dwelling Projects

Chapter 765, Texas Health and Safety Code

Prompted by the rash of attacks on residential ten-

ants by employees of residential dwelling projects,

the 73rd Legislature amended Chapter 135 of the

Texas Human Resources Code. The 75th Legislature

shifted the provisions to Chapter 765 of the Texas

Health and Safety Code. Effective September 1, 1993,

applicants for employment in a residential dwelling

project may be asked about their criminal history. If

employment is offered, the employer may verify the

applicant’s criminal history through the Department

of Public Safety.

Six terms are dened at the beginning of Chapter

765. The terms are used extensively throughout the

section. The denitions reproduced at the end of this

section include: department, dwelling, employer,

employee, occupant and residential dwelling project.

Exactly to whom does the chapter apply?

The chapter applies to each applicant for employ-

ment in a residential dwelling project to whom em-

ployment is offered and who, in the course and scope

of the employment, may be reasonably required to

have access to a dwelling in the residential dwelling

project. The chapter does not apply to a person em-

ployed by an occupant or tenant (Sections 765.002[a]

and [b]).

When may an employer of a residential

dwelling project legally inquire about an

applicant’s criminal record?

An employer may request an applicant to disclose

the applicant’s criminal history at any time before

or after an offer of employment is made (Section

765.003[a]).

Can the employer verify the applicant’s

criminal record? Is the applicant’s consent

necessary for the verication?

After offering employment, the employer may

verify through the Texas Department of Public

Safety any criminal history that is maintained by

the department relating to the applicant. The depart-

ment is authorized to release information pursuant

to Section 411.086 of the Texas Government Code.

The employer may verify the information only with

the authorization of the applicant and in compliance

with this chapter (Section 765.003[a]).

What information may the Department of

Public Safety require before releasing the

information?

The department may require the employer to

submit the applicant’s complete name, date of birth,

social security number, sex, race, current street ad-

dress and current Texas driver’s license number, if

any (Section 765.003[b]).

However, the department may adopt rules relating

to an employer’s access to criminal history including

requirements for submission of:

• the employer’s complete name, current street

address and federal employer identication

number,

• an affidavit by an authorized representative of

the employer that the individual whose crimi-

nal history is requested has been offered a posi-

tion of employment by the employer in a resi-

dential dwelling project and that, in the course

and scope of the employment, the individual

may be reasonably required to have access to a

dwelling in the residential dwelling project, and

• the complete name, date of birth, social se-

curity number and current street address of

the individual signing the affidavit (Section

765.003[c]).

The affidavit must include a statement, executed

by the individual being offered the position of em-

ployment, authorizing the employer to obtain the

applicant’s criminal history (Section 765.003[d]).

Must the department release the applicant’s

entire criminal record?

The department is required to provide only the

information that the employer is entitled to receive

under Section 411.118 of the Texas Government

Code (Section 765.003[e]).

What information can be released to an

employer of a residential dwelling project

according to Section 411.118 of the Texas

Government Code?

The department may release the criminal history

of an application that relates to:

(1) an offense classied as:

• an offense against the person or family,

• an offense against property, or

• public indecency

(2) a felony violation of a controlled substance,

either for the possession or distribution,

under Chapter 481 or Section 485.033 of the

Texas Health and Safety Code or

(3) an offense under Sections 49.04, 49.07 or

49.08 of the Texas Penal Code if the position

requires a substantial amount of driving.

What offenses are involved with the three

sections of the penal code?

The respective sections of the penal code involve

the following:

• Section 49.04: Driving While Intoxicated

• Section 49.07: Intoxication Assault — seriously

injuring another by accident or mistake while

operating an aircraft, watercraft or motor

vehicle in a public place.

• Section 49.08: Intoxication Manslaughter

— causes the death of another by accident or

mistake while operating an aircraft, watercraft

or motor vehicle in a public place.

Are employers required to check the

criminal history of an applicant?

This chapter does not require an employer to

obtain the criminal history of an applicant (Section

765.003[f]).

May the employer share the applicant’s

criminal history?

Criminal history received by an employer under

this chapter is privileged and for the exclusive use

of the employer. The employer may disclose the

information to an authorized officer, employee

or agent of the employer only for the purpose

of determinating an individual’s suitability for

employment. An employer, or any individual

to whom the employer may have disclosed

information, may not release or otherwise disclose

the information received under this chapter to any

person or governmental entity except on court order

or with the written consent of the individual being

investigated (Section 765.004).

Are there any penalties for violating the

restrictions with whom the applicant’s

criminal history may be shared? What

if false information is given to the

department?

An individual who is an officer, employee or agent

of an employer and who knowingly or intentionally

violates Section 765.004 of this chapter or submits

false information to the department commits a Class

A misdemeanor (Section 765.005).

What are the consequences if the applicant

submits a false criminal history to the

employer?

An employer may terminate the employment of

an individual who, at the time of the application for

employment or after being employed by the employ-

er, submits false information about the individual’s

criminal history (Section 765.006).

Can the employer ask the applicant or

employee about other relevant information

not prohibited by law?

This chapter does not prevent an employer from

asking an applicant or an employee to provide other

information if the requested information is not other-

wise prohibited by law (Section 765.007).

Occupant — an individual who resides in a dwelling

in a residential dwelling project but who is not a ten-

ant or the owner or manager of the dwelling.

Residential dwelling project — a house, condomin-

ium, apartment building, duplex or similar facility

that is used as a dwelling. A facility that provides

lodging to guests for compensation including a hotel,

motel, inn, bed and breakfast or similar facility. The

term does not include a nursing home or other re-

lated institution regulated under Chapter 242 of the

Health and Safety Code.

The following six terms are dened in Section

135.001 of the Texas Human Resources Code. The

denitions are limited to Chapter 135. They are not

to be confused with the denitions in the Glossary

used in the Texas Property Code.

Department — the Department of Public Safety.

Dwelling — one or more rooms rented for residential

purposes to one or more tenants.

Employer — a person who hires employees to work

at a residential dwelling project.

Employee — an individual who performs services for

compensation at a residential dwelling project and

who is employed by the owner of the project or the

representative of the owner in managing or leasing

dwellings in the project. The term does not include

an independent contractor.

Denitions Used in Ascertaining

the Criminal History of Employees

Towing Vehicles from Parking Lots and Public Roadways

Chapter 835, Article 6701g-2, Texas Civil Statutes

The problem with vehicles obstructing entries and

exits to parking lots, blocking re lanes and parking

in designated handicapped zones prompted the 73rd

Legislature to amend Chapter 835 of Article 6701g-2

of the Texas Civil Statutes. Effective January 1, 1994,

the entity controlling a parking lot such as property

owners associations, multiunit rental complexes and

even churches are empowered to tow vehicles violat-

ing this subchapter.

However, with the power to tow, comes a host of

prerequisites, notably posting required signs at the

proper height and location and featuring the correct

colors, material, letter height, wording, etc. The

failure of the entities controlling the parking lot to

adhere to all the prerequisites subjects them to both

civil and criminal sanctions.

The prerequisites, though, are not easy to decipher

from the text of the statute. The wording is quite

technical. Diagrams by the legislators would have

been helpful.

The following nine terms used extensively

throughout the statute are dened at the end of this

section: dedicatory instrument, parking facility,

parking facility owner, property owners association,

public roadway, towing company, vehicle, vehicle

storage facility and unauthorized vehicle.

How may the owner or operator of a vehicle

violate this statute?

According to Section 2(a), an owner or operator of

a vehicle may not leave a vehicle unattended on a

parking facility if the vehicle:

• is in or obstructs a vehicular traffic aisle, entry

or exit of the parking facility,

• prevents a vehicle from exiting a parking space

in the facility,

• is in or obstructs a re lane marked according

to Subsection (b) of this section, or

• is in a disabled parking space that is

designated for the exclusive use of vehicles

transporting disabled persons and does not

display the specially designed license plate

for such vehicles or the removable windshield

identication card issued under Article

6675a-5e.1 of the Vernon’s Texas Civil Statutes.

How should re lanes be marked in the

parking facility?

If a government regulation on marking re lanes

applies to a parking facility, re lanes must be

marked as specied. If a government regulation does

not apply, all re lane curbs must be painted red and

conspicuously and legibly marked with the warning

“FIRE LANE–TOW AWAY ZONE” in white letters

at least 3 inches tall at intervals not exceeding 50

feet (Section 2[b]).

Does this statute apply to emergency

vehicles?

This section does not apply to an emergency ve-

hicle that is owned or operated by a governmental

entity (Section 2[c]).

What conditions are necessary before

parking facility owners may legally tow an

unauthorized vehicle?

A parking facility owner, without the consent of

the owner or operator of an unauthorized vehicle,

may remove the vehicle and any property resting on

or contained within it. It may be stored at a vehicle

storage facility at the expense of the owner or opera-

tor, when any of the following events occur:

(1) a sign or signs prohibiting unauthorized vehi-

cles have been installed on the parking facility

for at least 24 consecutive hours and remain

installed at the time of towing,

(2) the owner or operator of the unauthorized

vehicle has received actual notice from the

parking facility owner that the vehicle will be

towed at the vehicle owner’s or operator’s ex-

pense if it is parked in an unauthorized space

or not removed from an unauthorized space,

(3) the parking facility owner has given notice

to the owner or operator of the unauthorized

vehicle as provided by Section 3(b) below, that

the vehicle will be towed at the expense of the

owner or operator if it is in an unauthorized

space or is not removed from an unauthorized

space, or

(4) the unauthorized vehicle, in violation of

Section 2(a) of this act, is preventing another

vehicle from exiting a parking space on the

parking facility or is in or obstructing a re

lane, disabled parking space, aisle, entry or

exit, including any portion of a paved driveway

or abutting public roadway used for entering or

exiting the facility (Section 3[a]).

Exactly how is the parking facility owner

required to give notice in satisfaction of

Section 3(a)(3) above?

A parking facility owner is considered to have

given notice under Section 3(a)(3) when:

(1) a conspicuous notice has been attached to

the vehicle’s front windshield or to another

conspicuous location on the vehicle if the

vehicle has no front windshield, stating that

the vehicle is in a parking space in which

the vehicle is not authorized to be parked,

describing all the other unauthorized areas in

the parking facility, stating that the vehicle

will be towed at the expense of the owner or

operator if it remains in an unauthorized area

of the parking facility and stating a telephone

number that is answered 24 hours a day to

enable the owner or operator of a towed ve-

hicle to locate the vehicle and

(2) after the notice has been attached to the

vehicle:

• the vehicle is parked by the owner or

operator of the vehicle in another loca-

tion where parking is unauthorized for the

vehicle according to the notice or

• a notice was mailed to the vehicle owner

by certied mail, return receipt requested,

to the last address shown for the vehicle

owner according to the vehicle registra-

tion records of the Texas Department of

Transportation, or if the vehicle is reg-

istered in another state, the appropriate

agency of that state (Section 3[b]).

If a notice is mailed to the vehicle owner, it must

state that the vehicle is in a space for which the

vehicle is not authorized to park, describe all other

unauthorized areas in the parking facility, contain a

warning that the unauthorized vehicle will be towed

at the expense of the owner or operator if it is not

removed from the parking facility before the 15th

day after the postmark date of the notice. The notice

also must state a telephone number that is answered

24 hours a day to enable the owner or operator of a

towed vehicle to locate the vehicle (Section 3[c]).

May the parking facility owner remove an

unauthorized vehicle in other ways?

A parking facility owner may not have an unau-

thorized vehicle removed from the facility except

as provided by this act, as provided by a municipal

ordinance that complies with Section 10 of this act

or under the direction of a peace officer or the owner

or operator of the vehicle (Section 3[d]).

What liability does the parking facility

owner face when having an unauthorized

vehicle removed?

A parking facility owner who has an unauthorized

vehicle removed in compliance with these provi-

sions shall not be liable for damages arising out of

the removal or storage of such vehicle if the vehicle

is:

• removed by a towing company insured against

liability for property damage incurred in towing

vehicles and

• stored by a vehicle storage facility insured

against liability for property damage incurred in

storing vehicles (Section 3[e]).

May the parking facility owner call a

towing company that does not have liability

for property damage? What facts must the

towing company verify or determine before

towing the vehicle?

Only a towing company that is insured against

liability for property damage incurred in towing

vehicles may remove and store a vehicle at a vehicle

storage facility at the expense of the owner of the

vehicle, and then, only if any one of the following

events has occurred:

(1) the towing company has received written ver-

ication from the parking facility owner that

the parking facility owner has, in compliance

with Section (3)(a)(1) of this act, caused signs

to be installed in accordance with Section 6

of this act,

(2) the towing company has received written

verication from the parking facility owner

that the vehicle owner or operator received

actual notice under Section 3(a)(2) of this act

or that the facility owner gave notice comply-

ing with Section 3(a)(3) of this act notifying

the owner or operator that the vehicle will

be towed at the vehicle owner’s or operator’s

expense if it is not removed, or

(3) the unauthorized vehicle in violation of Sec-

tion 2(a) of this act is preventing another ve-

hicle from exiting a parking space or is in or

obstructing a re lane, disabled parking space,

aisle, entry or exit, including any portion of

a paved driveway or abutting public roadway

used for entering or exiting the facility (Sec-

tion 4[a]).

Are there any other ways a towing company

may remove an unauthorized vehicle?

A towing company may not remove an unauthor-

ized vehicle except as provided by this act, as pro-

vided by a municipal ordinance that complies with

Section 10 of this act or under the direction of a

peace officer or the owner or operator of such vehicle

(Section 4[b]).

If a parking facility owner posts an unauthorized

parking sign as described in Sections 6(a), (b) and (c)

anywhere in the facility, the owner of a vehicle that

is towed from the facility must be able to locate the

vehicle by calling the telephone number posted on

the sign (Section 3[f]).

What must a vehicle storage facility do

when it receives a towed vehicle?

Within two hours after receiving a vehicle towed

under this act, the vehicle storage facility must re-

port to the local police department or, if the parking

facility is not located within a municipality with a

police department, to the county sheriff where the

parking facility is located. The following informa-

tion must be reported:

• a general description of the vehicle,

• the state and number of the vehicle’s license

plate, if any,

• the vehicle identication number if known,

• the location from which the vehicle was towed,

and

• the name and location of the facility where the

vehicle is being stored (Section 5 [a]).

How must the information be relayed to the

police department or sheriff’s department?

The vehicle storage facility shall deliver the report

by telephone, facsimile or personal delivery (Section

5[b]).

The parking facility owner is relieved of liability

for the towing if both the towing company and the

vehicle storage facility are insured. The law permits

the parking facility owner to call only an insured

towing company. The law says nothing about insur-

ance for the vehicle storage facility.

How must the signs prohibiting

unauthorized parking be installed?

A sign prohibiting unauthorized vehicles on a

parking facility must be:

(1) conspicuously visible and facing the driver of

a vehicle entering the facility,

(2) located on the right-hand or left-hand side of

each driveway or curb-cut entrance, includ-

ing any entry point along an alley abutting

the facility,

(3) permanently mounted on a pole, post, per-

manent wall or permanent barrier,

(4) installed on the parking facility, and

(5) installed so that the bottom edge of the sign

is no lower than 5 feet and no higher than 8

feet above ground level (Section 6[a]).

What other characteristics and dimensions

must the sign have?

Each sign prohibiting unauthorized vehicles must:

(1) be made of weather-resistant material,

(2) be at least 18 inches wide and 24 inches tall,

(3) contain the international symbol for towing

vehicles, which is generally rectangular with

a solid silhouette of a tow truck towing a

vehicle,

(4) contain a statement describing who may

park in the parking facility and prohibiting

all others, such as “Tenant Parking Only,”

“Patient Parking Only,” “Parking for Cus-

tomers and Permit Holders Only,” or “No

Parking by Anyone,”

(5) bear the words “Unauthorized Vehicles Will

Be Towed at Owner’s or Operator’s Expense,”

(6) contain a statement of the days and hours of

towing enforcement, such as “Towing En-

forced at All Times” or “Towing Enforced 7

a.m. to 7 p.m., Monday through Friday,” and

(7) contain a current telephone number, includ-

ing the area code, that is answered 24 hours

a day to enable the owner or operator of a

towed vehicle to locate the vehicle (Section

6[b]).

What about color, layout, lettering and

other design elements? What about signs

made after January 1, 1996?

Each sign required by this act shall comply with

the following color, layout and lettering height re-

quirements:

(1) the top portion of the sign must contain the

international towing symbol. The symbol

must be bright red on a white background, at

least 4 inches tall and placed at the top of the

unauthorized parking sign or on a separate

sign immediately above the unauthorized

parking sign,

(2) the portion of the sign immediately below

the towing symbol must contain the words

“Towing Enforced” or the information in

Section 6(b)(4) in lettering at least 2 inches

tall. Before January 1, 1996, the lettering on

this portion of the sign must be white letters

on a bright red background or bright red let-

ters on a white background. After that date,

the lettering on this portion must be white

letters on a bright red background,

(3) except as provided by 6(c)(4), the next portion

of the sign must contain the remaining infor-

mation required by Section 6(b), with bright

red letters at least 1 inch tall on a white

background, and

(4) the bottom portion of the sign must contain

the 24-hour telephone number, in lettering

at least 1 inch tall and may, if the facility

owner chooses or if an applicable municipal

ordinance requires, include the name and ad-

dress of the storage facility where an unau-

thorized vehicle will be taken. Before January

1, 1996, the lettering on this portion of the

sign must be white letters on a bright red

background or bright red letters on a white

background. After that date, the lettering on

this portion must be white letters on a bright

red background (Section 6[c]).

It is practically impossible to decipher the require-

ments of Section 6(c). A diagram by the legislators

would have been helpful.

Are there any exceptions to the installation

of signs as described in Section 6(a)(2)?

A parking facility owner may designate one or

more spaces as restricted parking spaces on a por-

tion or portions of an otherwise unrestricted parking

facility. Instead of installing unauthorized parking

signs at each entrance to the parking facility as pro-

vided by section 6(a)(2), a sign that prohibits unau-

thorized vehicles from parking in designated spaces

that otherwise complies with section 6(a), (b) and (c)

may be placed:

(1) at the right-hand or left-hand side of each

entrance to a designated area or group of

parking spaces located on the restricted por-

tion of the parking facility or

(2) at the end of an individual parking space so

that the sign, with the top no higher than

7 feet above ground level, is in front of a

vehicle parked in the space with the rear of

the vehicle being at the entrance of the space

(Section 6[d]).

May a parking facility owner impose

individual parking restrictions in areas

already covered by signs?

A parking facility owner who complies with the

entry sign requirements of Sections 6(a), (b) or (c)

may impose individual parking restrictions in an

area of individual spaces by installing or painting a

weather-resistant sign or notice on a curb, pole, post,

permanent wall or permanent barrier so that the sign

is in front of a vehicle parked in the space with the

rear of the vehicle being at the entrance of the space.

The top of the sign or notice must be no higher than

7 feet above ground level. A sign must indicate that

the space is reserved for a particular unit number,

person or type of person, such as “Reserved for Unit

101,” “Reserved for Suite 202,” “Reserved for John

Doe,” “Reserved for Tenant,” “Reserved for Permit

Holders” or “Reserved for Permit #123”. The letters

must be at least 2 inches tall and must contrast to

the color of the curb, wall or barrier so they can be

read day and night. The letters do not need to be illu-

minated or made of reective material (Section 6[e]).

Where must the signs be placed in parking

lots with no established entry?

If curbs, access barriers, landscaping or driveways

do not establish denite vehicle entrances into the

parking facility from a public roadway other than

an alley, and if an entrance exceeds 35 feet in width,

each of the unauthorized parking signs otherwise

complying with sections 6(a), (b) and (c) must be

located at intervals along the entrance so that no

entrance is farther than 25 feet from a sign (Section

6[f]).

Is strict compliance required for the

minimum heights of signs and letters?

Minor variations of required or minimum heights

of signs and letters do not constitute a violation of

this act (Section 6[g]).

Is this statute limited to the regulation of

towing from privately owned parking lots?

The denition of a parking facility as regulated

by this statute also includes both (1) the portion of

the right-of-way of public roadway that is leased by

a governmental entity to the parking facility owner

and (2) the area between the facility’s property line

abutting a county or municipal public roadway and

the center line of the roadway’s drainageway or the

curb of the roadway, whichever is farthest from the

facility’s property line (Section 7[a]).

Unless prohibited in the lease, a parking facility

owner or towing company may remove an unauthor-

ized vehicle parked in whole or in part in a leased

area just described by Section 7[a][1], if the owner or

towing company:

(1) gives notice by sign as provided by Section

3(a)(1) of this act and otherwise complies

with this act or

(2) gives notice to the vehicle owner or operator

as provided by Sections 3(a)(2) or 3(a)(3) of

this act and otherwise complies with this act

(Section 7[b]).

Unless prohibited by an applicable municipal

ordinance, a parking facility owner or towing com-

pany may remove an unauthorized vehicle parked in

whole or in part in the area, just described in Section

7(a)(2), by giving notice as provided by Section 3(a)(2)

or 3(a)(3) of this act and otherwise complying with

this act (Section 7[c]).

Can a governmental entity with jurisdiction

over a roadway remove or have towed

unauthorized vehicles violating “no

parking” signs?

A governmental authority with jurisdiction over

a public roadway that has posted one or more signs

prohibiting parking in the right-of-way may:

(1) remove or contract with a towing company

to remove an unauthorized vehicle parked

in the right-of-way of the public roadway, on

direction of a representative of the govern-

mental authority or

(2) grant written permission to an abutting

parking facility owner to post “No parking

in R.O.W.” signs along the common property

line between the facility and the public road-

way and to remove vehicles from the right-

of-way of the public roadway in compliance

with this act (Section 7[d]).

If the governmental entity opts to use the second

alternative noted above in Section (7[a][2]), then the

posted signs must state that vehicles parked in the

right-of-way may be towed at the vehicle owner’s or

operator’s expense. The signs must be placed facing

the public roadway, on the parking facility owner’s

property within 2 feet from the common boundary

line, and at intervals so that no point in the bound-

ary line is less than 25 feet from a sign posted. In all

other respects, the signs must comply with Section 6

of this act (Section 7[e]).

If the appropriate signs have been posted, a parking

facility owner or a towing company may remove an

unauthorized vehicle from the right-of-way to the

extent allowed in the written grant of permission to

the facility owner from the government under sec-

tion 7(d)(2).

Are there any other ways a parking facility

owner or a towing company may remove a

vehicle from a public roadway?

A parking facility owner or towing company may

not remove a vehicle from a public roadway (high-

way) except as provided by this act, as provided by a

municipal ordinance complying with Section 10 of

this act or under the direction of a peace officer or

the owner or operator of the vehicle (Section 7[g]).

Can there be any kickbacks or other

monetary interests or connections between

the parking facility owner and the towing

company?

A parking facility owner may not accept anything

of value, directly or indirectly, from a towing compa-

ny in connection with the removal of a vehicle from

a parking facility. A parking facility owner may not

have a monetary interest, directly or indirectly, in a

towing company that removes unauthorized vehicles

for compensation from a parking facility in which

the parking facility owner has an interest (Section 8).

A towing company may not give anything of value,

directly or indirectly, to a parking facility owner

in connection with the removal of a vehicle from a

parking facility. A towing company may not have a

monetary (pecuniary) interest, directly or indirectly,

in a parking facility from which the towing company

removes unauthorized vehicles for compensation

(Section 9).

Section 12, discussed later, appears to contain the

penalty for a violation of either Sections 8 or 9.

How does this statute interact with a

municipal ordinance covering the same

subject?

A municipality may adopt an ordinance that

is identical to this act or that imposes additional

requirements exceeding the minimum standards of

this act but may not adopt a conicting ordinance

(Section 10).

What type of recovery can the owner or

operator receive from the towing company

or parking facility owner who violates this

statute?

Any towing company or parking facility owner

who violates this act shall be liable to the owner or

operator of the vehicle for damages arising from the

removal or storage of such vehicle and/or any tow-

ing or storage fees assessed in connection with the

removal or storage of the vehicle. Negligence on the

part of the parking facility owner or towing company

need not be proved to recover (Section 11[a]).

Does the recovery vary when the towing

company or parking facility owner

intentionally violates the statutes?

A towing company or parking facility owner who

knowingly, intentionally or recklessly violates this

act shall be liable to the owner or operator of the ve-

hicle for $300 plus treble the amount of fees assessed

in the removal, towing or storage of the vehicle (Sec-

tion 11).

In any suit brought under this act, the prevailing

party shall recover reasonable attorneys’ fees from

the nonprevailing party.

In addition to the civil recoveries by the

owner or operator of the vehicle, can any

criminal nes or penalties be imposed?

Any violation of this act is punishable by a ne of

not less than $200 and not more than $500. Any vio-

lation of the provisions of this act may be enjoined

pursuant to the provisions of the Deceptive Trade

Practices-Consumer Protection Act (Section 12).

Rules for Towing Vehicles from Multiunit Complexes’ Parking Lots

Sections 92.013 and 92.0131 of Property Code

Effective Jan. 1, 2006, landlords of multiunit com-

plexes are charged with new obligations for notify-

ing tenants about towing rules. Landlords face civil

penalties for violations.

Do landlords, in general, have a duty to

notify residential tenants of rules regarding

personal property located outside the

tenant’s dwelling?

Yes. Landlords must give prior written notice to a

tenant regarding the rules or policy changes that are

not included in the lease agreement that affect any

personal property owned by the tenant and located

outside the tenant’s dwelling. This rule applies to all

residential tenants (Section 92.013[a]).

Are there any special rules for landlords at

multiunit complexes?

Yes. Landlords of multiunit complexes must

provide the tenants a copy of any applicable vehicle

towing or parking rules or policies and any changes

to those rules or policies (Section 92.013[a]).

How is the term "multiunit complex"

dened?

The denition of the term multiunit complex

found in Section 91.151 applies. It means two or

more dwellings in one or more buildings that are:

• under common ownership,

• managed by the same owner, agent or manage-

ment company, and

• located on the same lot or tract or adjacent lots

or tracts of land.

What obligations are imposed on landlords

of multiunit complexes on lease agreements

entered or renewed on or after Jan. 1, 2006?

At the time the lease is entered or renewed, the

landlord must provide the tenant copies of any exist-

ing vehicle towing or parking lot rules or policies

that apply to the tenant. The tenant must be given

a copy of these rules before the lease is signed. To

verify compliance, the copy of the rules must be:

• signed by the tenant,

• included in the lease agreement that is also

signed by the tenant, or

• included in an attachment to the lease agree-

ment that is signed by the tenant, but only if

the attachment is specically referenced in the

lease agreement (Sections 92.0131[a] and [b]).

How must the copy of the rules be headed

or titled?

If the rules or policies are contained in the lease or

in an attachment to the lease, the title to the para-

graph containing the rules and policies must read

“PARKING” or “PARKING RULES” and be capital-

ized, underlined or printed in bold print (Section

92.0131[c]).

What information can the landlord require

from the tenant as a condition for parking

in a specic space or in a common parking

area?

As a condition for allowing a tenant to park in a

specic parking space or in a common parking area,

the landlord may require a tenant to provide only the

make, model, color, year, license number and state

of registration of the vehicle (Section 92.0131[c-l]).

What happens if the landlord changes the

rules during the lease term?

If the rules or policies change during the lease

term, the landlord must provide a written copy of

the changes to the tenant. The tenant is not subject

to the changes until he or she has received notice.

The landlord has the burden to prove the tenant

received a copy of the rule or policy change (Section

92.0131[d]).

How can the landlord prove or verify that

the tenant received a notice of the rule or

policy change?

The landlord may satisfy the burden of proof by

showing that he or she:

• sent the notice by certied mail, return re-

ceipt requested, addressed to the tenant at the

tenant’s dwelling or

• made a notation in the landlord’s les of the

time, place and method of providing the notice

with the name of the person who delivered the

notice.

What is an acceptable "method of delivering

notice?"

The delivery may occur by:

• hand delivery to the tenant or any occupant of

the tenant’s dwelling over the age of 16,

• faxing to a number the tenant provided to the

landlord for purposes of receiving notices or

• taping the notice to the inside of the main

entry door of the tenant’s dwelling (Section

92.0131[d]).

Are there any special requirements for rule

or policy changes that occur during the

lease term?

Yes. Rule or policy changes during the lease term

must:

1) Apply to all the tenants in the same multiunit

complex and be:

• based on necessity, safety or security of

tenants,

• reasonable for any construction taking place

on the premises, and

• respectful of other tenants’ parking rights or

2) Be adopted based on the tenant’s written

consent.

How soon may the rule or policy change

become effective?

The rule or policy change during the lease term

cannot become effective until the 14

day after the

delivery to the tenant of the notice of change un-

less the change results from a construction or utility

emergency (Section 92.0131[e]).

What are the legal consequences for the

landlord violating any of these rules?

The landlord is liable for a $100 civic penalty, the

tenant’s towing or storage costs and the tenant’s

reasonable attorney’s fee plus court costs (Section

92.0131[f]).

What if there are damages to the tenant’s

vehicle?

The landlord is liable for any damage to the

tenant’s vehicle if the:

• damage results from the negligence of the tow-

ing service,

• towing service is under contract with the land-

lord or the landlord’s agent to remove vehicles

parked in violation of the landlord’s rules, and

• towing company does not carry liability insur-

ance (Section 92.0131[g]).

Denitions Associated with Towing Vehicles

from Parking Lots

The following nine terms are dened in Chapter

835, Article 6701g-2 of the Texas Civil Statutes. The

denitions are limited to Chapter 835. They are not

to be confused with the denitions in the Glossary

used in the Texas Property Code.

Dedicatory instrument — each governing instru-

ment covering the establishment, maintenance and

operation of a residential subdivision, planned unit

development, condominium or townhouse regime or

any similar planned development. The term includes

a declaration or similar instrument subjecting real

property to restrictive covenants, bylaws or similar

instruments governing the administration or opera-

tion of a property owners association, to properly

adopted rules and regulations of the property owners

association, or to all lawful amendments to the cov-

enants, bylaws, instruments, rules or regulations.

Parking facility — any public or private property

used, in whole or in part, for restricted and/or paid

parking of vehicles. The term includes but is not

limited to commercial parking lots, parking garages

and parking areas serving or adjacent to businesses,

churches, schools, homes, apartment complexes,

property governed by a property owners association

and government-owned property leased to a private

person. The term also includes a restricted space or

spaces on a portion or portions of an otherwise unre-

stricted parking facility.

Parking facility owner — includes:

• an operator or owner (including a lessee, em-

ployee or agent) of a parking facility,

• a property owners association having control

over assigned or unassigned parking areas ac-

cording to a dedicatory instrument, and

• a property owner having exclusive-use rights to

a parking space under a dedicatory instrument.

Property owners association — an incorporated

or unincorporated association owned by or whose

members consist primarily of the owners of the

property covered by the dedicatory instrument and

through which the owners, or the board of direc-

tors or similar governing body, manage or regulate

the residential subdivision, planned unit develop-

ment, condominium or townhouse regime or similar

planned development.

Public roadway — any public street, alley, road,

right-of-way or other public way, including paved

and unpaved portions of the right-of-way, unless

otherwise stated.

Towing company — a person operating a tow truck

registered under Chapter 1135, Acts of the 70th

Legislature, Regular Session, 1987 (Article 6687-9b,

Vernon’s Texas Civil Statutes). The term includes

the owner, operator, employee or agent of a towing

company but does not include cities, counties or

other political subdivisions of the state.

Vehicle — every kind of device in, upon or by which

any person or property is or may be transported or

drawn on a public roadway, except devices moved by

human power or used exclusively on stationary rails

or tracks. The term includes an operable or inoper-

able automobile, truck, motorcycle, recreational

vehicle or trailer.

Vehicle storage facility — a facility operated by a

person licensed under the Vehicle Storage Facility

Act (Article 6687-9a, Revised Statutes).

Unauthorized vehicle — any vehicle parked, stored

or situated in or on a parking facility without the

consent of the parking facility owner.

Federal and State Statutes

Affecting Residential and Commercial Tenancies

A discussion of residential and commercial

tenancies would not be complete without addressing

the impact of federal and state statutes. All federal

laws are superior to any Texas laws on the subject

according to the Federal Supremacy Clause of the

U.S. Constitution.

Military Personnel

Two federal statutes override Texas landlord-

tenant law. The rst is the Soldiers’ and Sailors’

Civil Relief Act of 1940, as amended. The second is

the Fair Housing Act of 1988.

How are military personnel and their

dependents affected?

The Soldiers’ and Sailors’ Civil Relief Act of 1940

was designed to lessen the nancial hardship faced

by military personnel and their families caused by

active service. Its purpose is “. . . to suspend enforce-

ment of civil liabilities, in certain cases, of persons

in the military service of the United States in order

to enable such persons to devote their entire energy

to the defense needs of the Nation. . . .”

Two aspects of the act apply to residential ten-

ancies. One deals with the tenant’s (military

personnel’s) right to terminate existing leases; the

other concerns the landlord’s right to evict military

personnel or their dependents.

Eligible military service persons who have ex-

ecuted leases for dwelling, professional, business,

agricultural or similar purposes have an unqualied

right to terminate the leases if the following condi-

tions are met:

• The leases were executed by or on behalf of the

person before entering the military.

• The premises were occupied by the military

person or dependents.

• The person gives the landlord written notice of

termination by rst class mail or other means

after entering the service. The notice termi-

nates the lease 30 days after the next rental

payment is due.

The act prohibits any person from knowingly seiz-

ing or detaining the tenant’s (military personnel’s)

property in an effort to claim rent after the lease

terminates (50 United States Code Annotated, Sec-

tion 534).

Without the court’s consent, the act also prohibits

landlords from terminating residential leases with

dependents of military service personnel. Originally,

the prohibition applied to dependents paying $150

or less per month. Effective July 1, 1990, the amount

was raised to $1,200 or less per month. The court

will not permit an eviction when it nds that the

tenant’s ability to pay the rent was materially af-

fected by reason of the military service (50 United

States Code Annotated, Section 530).

Anti-Discrimination

The Fair Housing Amendments Act of 1988 was

enacted September 13, 1988, as Public Law 100-430.

Section 3604 of the act specically prohibits discrim-

ination in the sale or rental of housing based on the

person’s race, color, religion, sex, handicap, familial

status or national origin.

Basically the statute states that it shall be unlawful

to:

• refuse to sell or rent after the making of a bona

de offer or to refuse to negotiate for the sale

or rental of, or otherwise make unavailable or

deny a dwelling based on the personal factors

listed above;

• discriminate against any person in the terms,

conditions or privileges of sale or rental of a

dwelling, or in the provision of services or

facilities in connection therewith based on the

personal factors listed above;

• make, print, or publish, or cause to be made,

printed, or published any notice, statement,

or advertisement, with respect to the sale or

rental of a dwelling that indicates any prefer-

ence, limitation, or discrimination based on the

personal factors listed above; or

• misrepresent the availability of a dwelling for

inspection, sale or rent because of the personal

factors listed above.

Handicapped Persons

What are the rights of handicapped persons

living in rental property?

Two federal statutes have affected rights of the

handicapped in rental property. The rst is the Fair

Housing Amendments Act of 1988 dealing with

residential leases previously discussed. The other is

the Americans with Disabilities Act of 1990 (ADA)

concerning commercial leases. An explanation of the

ADA is beyond the scope of this report.

As previously noted, the Fair Housing Act prohib-

its discrimination in the sale or rental of residential

property based on a person’s handicapped status.

Also, the act addresses the type of accesses new

residential buildings of four or more dwelling units

must have for handicapped occupants. Buildings

available for rst occupancy after March 13, 1991,

must comply with the access requirements (24

C.F.R. Section 100.201).

What features are required in new units to

provide handicapped access?

For newly constructed units, the act requires the

following features to be included in each individual

unit:

• a door sufficiently wide to allow passage by

handicapped persons in wheelchairs;

• accessible routes into and through each unit;

• accessible light switches;

• accessible electrical outlets, thermostats and

other environmental controls;

• reinforcements in bathroom walls to allow later

installation of grab bars; and

• usable kitchens and bathrooms that allow an

individual in a wheelchair to maneuver.

What features may be added to existing

structures at the tenant’s expense?

The part of the act that immediately affects exist-

ing structures is known as the “retro-tting provi-

sions.” A tenant must be given the right (at his or

her expense) to modify both the unit and the com-

mon areas to permit access. The types of modica-

tions, according to the legislative history of the act,

include:

• adding bathroom wall reinforcement and grab

bars,

• installing a ashing light to enable the hearing

impaired to see when someone is ringing the

doorbell,

• replacing doorknobs with lever handles for ten-

ants with severe arthritis,

• installing fold-back hinges on doors for tenants

in wheelchairs, and

• building entry ramps for persons in wheelchairs

(56 Fed. Reg. 9472 at 62).

Although no specic types of modications to the

common areas are mentioned, the modications are

permitted to a lobby’s main entrance of apartment

buildings, laundry rooms and public-use areas neces-

sary for the full enjoyment of the premises.

Do landlords have any safeguards?

Landlords are provided some safeguards. For in-

stance, landlords may require a reasonable escrow

or other measures to insure that the unit is properly

constructed and returned to its original condition

(when reasonable) after the handicapped person

leaves. However, HUD has determined that it is

unreasonable to expect a tenant to restore common

areas to their original condition.

Pesticide Application

Who may apply pesticides in a residential

unit?

The Texas Structural Pest Control Act governs

who may apply pesticides to apartment buildings.

The act establishes two types of pesticide applica-

tors: certied commercial applicators and certied

noncommercial applicators. An apartment building

owner may obtain pest control services from either

a business with a structural pest control business

license or require an employee who is a licensed

certied noncommercial applicator to perform the

services.

Although the amendment uses the word may, a

broad reading of the bill suggests the correct wording

to be must. An uncertied owner is prohibited from

applying pesticides to an apartment building con-

taining two or more dwelling units. Apparently, an

uncertied owner may apply pesticides to a separate,

single-family residential unit.

What notices are required?

The Texas Structural Pest Control Board is re-

quired to develop a “Pest Control Sign” to be posted

in the area of an indoor treatment; the sign must

contain the date of the planned treatment and other

information required by the board. The board is

charged with developing and approving a Pest Con-

trol Information Sheet that is to be distributed to

the owner or manager of a complex and also to the

tenants.

The use of the sign and the information sheet

depends on the size of the apartment complex. If the

complex contains less than ve rental units, includ-

ing single-family dwellings, the certied applicator

must leave the information sheet in each unit at the

time of each pest control treatment.

If the complex contains ve or more units, the cer-

tied applicator must provide the owner or manager

of the complex both the information sheet and the

sign. The owner or manager, in turn, must notify the

residents who live in the direct or adjacent area of

the forthcoming treatment at least 48 hours before

the application by either posting the sign in an area

of common access or leaving the information sheet

on the front door of each unit or in a conspicuous

place inside each unit.

Similar, but less stringent, requirements are

imposed for outdoor treatments. However, a pest

control treatment is considered an indoor treatment

even though part of the treatment is outdoors if the

primary purpose is to treat the inside of a building.

May unlicensed individuals apply

pesticides?

The act provides certain exemptions. Unlicensed

individuals may, on their own premises or on prem-

ises in which they own a partnership or joint ven-

ture interest, use pesticides to prevent, control or

eliminate pest infestation. Also, people who use pest

control chemicals available in retail food stores for

household application are exempt if the insecticide

is used by the owner, employee or agent in space oc-

cupied by the building owner in a residential build-

ing; or used in a place that is vacant, unused and

unoccupied.

Warning of Lead-Based Paint or Hazards

Must landlords warn tenants about lead-

based paint?

In October 1992, Congress adopted the Residential

Lead-Based Paint Hazard Reduction Act, Title X of

the Housing and Community Development Act (P.L.

102-550, 102 Stat. 3672, codied at 42 U.S.C.A. Sec-

tion 4851 et seq.)

The statute required the Environmental Protec-

tion Agency (EPA) to work with the U.S. Depart-

ment of Housing and Urban Development (HUD) to

promulgate regulations for disclosure of lead-based

paint hazards in residential property being sold or

leased. The regulations were published March 6,

1996, in the Federal Register. The new regulations

will be codied as 24 CFR Part 35 and 40CFR Part

745. The effective dates for the required disclosures

are September 6, 1996, for owners of more than four

residential dwellings; December 6, 1996, for owners

of one to four residential dwellings.

The responsibility and liability for making the

disclosures rest jointly with the lessor, the lessor’s

agent and property manager. The regulations cover

residential lease property constructed prior to 1978

that has not been found lead-free by a certied in-

spector. Leases for property constructed prior to 1978

are exempt when:

• the duration of the lease is 100 days or less with

no renewal or extension option or

• an existing lease is renewed, extended or rati-

ed; the disclosure was given at the beginning

of the lease; and no new information has been

found in the interim concerning the presence of

lead-based paint or associated hazards.

Also exempted are housing for the elderly (for

persons 62 years or older at initial occupancy) or

persons with disabilities unless a child younger than

six years resides or is expected to reside in the dwell-

ing. Also exempt are zero-bedroom dwellings with

a combined living and sleeping area. These include

efficiencies, studio apartments, dormitories, military

barracks and individual rooms rented within residen-

tial dwellings.

An apartment or dwelling is deemed to have lead-

based paint when the surface coatings contain lead

equal to or in excess of 1.0 milligrams per square

centimeter or 0.5 percent by weight. However, a

lead-based paint hazard is a condition in which

exposure to lead from lead-contaminated dust, soil

or deteriorated paint on accessible surfaces, friction

surfaces or impact surfaces would result in adverse

human health effects.

Before the lease contract is entered, the regulations

require a pamphlet, entitled Protecting Your Family

from Lead in Your Home (or an equivalent pamphlet

approved by the EPA), to be given to the prospective

lessee.

Single copies of the pamphlet, in either English

or Spanish, may be obtained from the National

Lead Information Center (NLIC) at 1-800-424-5323.

The pamphlet is also available on the EPA Internet

site at http://www.epa.gov/doc/lead_pm. Multiple

copies are available from the Government Printing

Office (GPO). The public may order by calling the

GPO Order Desk at 202-512-1800, faxing 202-512-

2233, or writing to Superintendent of Documents,

P.O. Box 371954, Pittsburgh, PA 15250-7954. Re-

quest the publication by title, Protect Your Family

from Lead in Your Home, and/or GPO stock #055-

000-00507-9. The price is $26 per pack of 50 copies.

In addition to the pamphlet, the prospective lessee

must be told of knowledge, tests, reports and records

concerning the presence of lead-based paint or haz-

ards in the apartment or dwelling being leased and

in any common areas. The term common areas in

this context means a portion of a building generally

accessible to all residents/users including, but not

limited to, hallways, stairways, laundry and recre-

ational rooms, playgrounds, community centers and

boundary fences.

When the lease contract is entered, the regulations

require an attachment to the contract, certied and

signed by the lessor, agent and lessee, stating that

the required pre-contractual disclosures were both

given and received. If the lessor’s agent is involved in

the transaction, the attachment must state that the

agent:

• informed the lessor of the lessor’s obligation

under 42 USCA 4852d and

• is aware of his or her duty to ensure compli-

ance with both the statute and the promulgated

regulations.

The attachment must contain the following lead

warning statement, either in English or Spanish:

“Housing built before 1978 may contain lead-

based paint. Lead from paint, paint chips, and dust

can pose health hazards if not managed properly.

Lead exposure is especially harmful to young chil-

dren and pregnant women. Before renting pre-1978

housing, lessors must disclose the presence of

lead-based paint and/or lead-based paint hazards

in the dwelling. Lessees must also receive a

federally approved pamphlet on lead poisoning

prevention.”

EPA and HUD drafted a sample disclosure form

for attachment to leasing contracts. Because it is not

mandatory, the form is not a part of the regulations.

A copy is provided at the end of this section.

The presentation of the pre-contractual disclo-

sures to the lessee’s agent relieves the lessor and

agent of any further duty to see that the information

is forwarded, provided the necessary parties com-

plete, sign and date the required attachment to the

contract.

After the contract is entered, the lessor and lessor’s

agent must retain a completed copy of the attach-

ment for at least three years from the beginning of

the lease term.

The lessor’s agents and property managers share

the same responsibility and liability for compliance

with the regulations as their principals. The agents

and property managers may escape some liability by

directly informing the principal of the duty to:

1. tender to the buyer or tenant the required pre-

contractual disclosures and

2. attach the mandatory warning language, state-

ments, certications, dates and signatures to the

lease contracts.

The regulations state that the agents must person-

ally ensure the principal complies with the regula-

tions. However, the liability for failing to disclose to

a tenant the presence of lead-based paint or hazards

known by the lessor but not disclosed to the agent

is lifted once the prescribed notice is presented to

the principal. Consequently, all agents and property

managers should routinely give this written notice

to the principal to have it signed and dated before

entering into each leasing contract.

A suggested disclosure form for agents is included

at the end of this section. The EPA/HUD form

should be attached to it when given to the principal.

If the lessor, lessor’s agent or property manager is

unsure of the construction date of the apartment or

dwelling, the information may be obtained by check-

ing the tax roll at the Central Appraisal District.

The penalties for noncompliance include among

other things:

• the plaintiff’s recovery of triple damages,

• the plaintiff’s recovery of court costs, reason-

able attorney fees and expert witness fees, and

• civil and criminal sanctions for each violation

not to exceed $10,000.

The failure to give the required disclosures does

not affect the validity or enforceability of the lease

contract.

Nothing in the statute or regulations obligates the

lessor, lessor’s agent or property manager to conduct

any evaluation, inspection or test for the presence of

lead-based paint or hazards or to have any lead-based

paint or hazards removed.

When must a lease agreement be in writing

to be enforceable according to the Texas

Statute of Frauds?

A lease of real estate for a term longer than one

year is not enforceable unless the agreement, or a

memorandum of it, is in writing and signed by the

person(s) charged with the promise or agreement or

by someone lawfully authorized to sign for them

(Section 26.01, Texas Business and Commerce Code).

A lease for one year (365 days) or less need not be

in writing to be enforceable. A lease for 366 days or

more must be in writing.

Because a lease agreement requires promises from

both the landlord and tenant, both parties must sign

the agreement.

Federal Fair Credit Reporting Act

What duties are imposed on landlords who

require a credit report as part of the rent

application process? What are the penalties

for noncompliance?

Landlords who require a credit report from the ten-

ant as part of the rent application process must meet

several conditions, including:

• The landlord must get the prospective tenant’s

written permission to run the check.

• If the landlord declines to rent to the ten-

ant based on the applicant’s credit report, the

landlord must inform the applicant of this in a

“Notice of Adverse Action.” The notice must

contain proscribed information and a toll-free

number or email address where the prospective

tenant may contact the credit reporting agency

(15 U.S.C. Section 1681 et seq.)

The following is taken from the rather exhaus-

tive text. It details the requirements when an ad-

verse action is taken based on the credit report.

It also describes the penalties for noncompliance.

The full text of the Federal Fair Credit Reporting

Act can be found online at http://www.ftc.gov/os/

statutes/031224fcra.pdf.

§ 615. Requirements on users of consumer reports

[15 U.S.C. § 1681m]

(a) Duties of users taking adverse actions on the

basis of information contained in consumer

reports. If any person takes any adverse action

with respect to any consumer that is based in

whole or in part on any information contained

in a consumer report, the person shall:

(1) provide oral, written, or electronic notice of

the adverse action to the consumer;

(2) provide to the consumer orally, in writing,

or electronically

(A) the name, address, and telephone num-

ber of the consumer reporting agency

(including a toll-free telephone number

established by the agency if the agency

compiles and maintains les on consum-

ers on a nationwide basis) that furnished

the report to the person; and

(B) a statement that the consumer reporting

agency did not make the decision to take

the adverse action and is unable to pro-

vide the consumer the specic reasons

why the adverse action was taken; and

(3) provide to the consumer an oral, written, or

electronic notice of the consumer's right

(A) to obtain, under section 612 [§ 1681j], a

free copy of a consumer report on the

consumer from the consumer reporting

agency referred to in paragraph (2), which

notice shall include an indication of the

60-day period under that section for ob-

taining such a copy; and

(B) to dispute, under section 611 [§ 1681i],

with a consumer reporting agency the ac-

curacy or completeness of any informa-

tion in a consumer report furnished by

the agency.

616. Civil liability for willful noncompliance [15

U.S.C. § 1681n]

(a) In general. Any person who willfully fails to

comply with any requirement imposed under

this title with respect to any consumer is liable

to that consumer in an amount equal to the

sum of:

(1) (A) any actual damages sustained by the con-

sumer as a result of the failure or dam-

ages of not less than $100 and not more

than $1,000; or

(B) in the case of liability of a natural person

for obtaining a consumer report under

false pretenses or knowingly without a

permissible purpose, actual damages sus-

tained by the consumer as a result of the

failure or $1,000, whichever is greater;

(2) such amount of punitive damages as the

court may allow; and

(3) in the case of any successful action to

enforce any liability under this section, the

costs of the action together with reasonable

attorney's fees as determined by the court.

(b) Civil liability for knowing noncompliance. Any

person who obtains a consumer report from a

consumer reporting agency under false pretens-

es or knowingly without a permissible purpose

shall be liable to the consumer reporting agency

for actual damages sustained by the consumer

reporting agency or $1,000, whichever is greater.

that an unsuccessful pleading, motion, or other

paper led in connection with an action under

this section was led in bad faith or for pur-

poses of harassment, the court shall award to

the prevailing party attorney's fees reasonable

in relation to the work expended in responding

to the pleading, motion, or other paper.

§ 617. Civil liability for negligent noncompliance [15

U.S.C. § 1681o]

(a) In general. Any person who is negligent in fail-

ing to comply with any requirement imposed

under this title with respect to any consumer is

liable to that consumer in an amount equal to

the sum of

(1) any actual damages sustained by the con-

sumer as a result of the failure; and

(2) in the case of any successful action to

enforce any liability under this section, the

costs of the action together with reasonable

attorney's fees as determined by the court.

(b) Attorney's fees. On a nding by the court that

an unsuccessful pleading, motion, or other

paper led in connection with an action under

this section was led in bad faith or for pur-

poses of harassment, the court shall award to

the prevailing party attorney's fees reasonable

in relation to the work expended in responding

to the pleading, motion, or other paper.

Sample Disclosure Format for Target Housing Rentals and Leases

ADDENDUM FOR LESSOR’S DISCLOSURE OF INFORMATION

ON LEAD-BASED PAINT AND LEAD-BASED PAINT HAZARDS

AS REQUIRED BY FEDERAL LAW

CONCERNING THE PROPERTY AT ______________________________________________________________

(Street Address and City)

A. LEAD WARNING STATEMENT: “Housing built before 1978 may contain lead-based paint. Lead from paint, paint

chips, and dust can pose health hazards if not managed properly. Lead exposure is especially harmful to young

children and pregnant women. Before renting pre-1978 housing, lessors must disclose the presence of known lead-

based paint and/or lead-based paint hazards in the dwelling. Tenants must also receive a federally approved pamphlet

on lead poisoning prevention.”

B. LESSOR’S DISCLOSURE:

1. PRESENCE OF LEAD-BASED PAINT AND/OR LEAD-BASED PAINT HAZARDS (check one box only):



(a) Known lead-based paint and/or lead-based paint hazards are present in the Property (explain):

______________________________________________________________________________________



(b) Lessor has no knowledge of lead-based paint and/or lead-based paint hazards in the Property.

2. RECORDS AND REPORTS AVAILABLE TO THE LESSOR (check one box only):



(a) Lessor has provided the Lessee (Tenant) with all available records and reports pertaining to lead-based

paint and/or lead-based paint hazards in the Property (list documents):

______________________________________________________________________________________



(b) Lessor has no reports or records pertaining to lead-based paint and/or lead-based paint hazards in the

Property.

C. LESSEE’S ACKNOWLEDGMENT (check applicable boxes):



(a) Lessee has received copies of all information listed above.



(b) Lessee has received the pamphlet Protect Your Family from Lead in Your Home.

D. BROKER’S ACKNOWLEDGMENT: Brokers have informed Lessor of Lessor’s obligations under 42 U.S.C. 4852d to:

(a) provide Lessee with the federally approved pamphlet on lead poisoning prevention; (b) complete this addendum;

reports to Lessee pertaining to lead-based paint and/or lead-based paint hazards in the Property; and (e) retain a

completed copy of this addendum for at least 3 years following the beginning of the lease. Brokers are aware of their

responsibility to ensure compliance.

E. CERTIFICATION OF ACCURACY: The following parties have reviewed the information above and certify, to the best

of their knowledge, that the information they have provided is true and accurate.

Lessor Date Lessor Date

Lessee Date Lessee Date

Lessor’s Broker Date Other Broker Date

Rental Disclosure Form (1133)

Real Estate Center, Texas A&M University, College Station, Texas 77843-2115

100

Commercial Tenancies

Chapter 93, Texas Property Code

Texas statutes contain two chapters devoted

exclusively to commercial landlords and tenants,

easily recognized by their respective numbers and

titles. Chapter 93 of the Texas Property Code is

entitled “Commercial Tenancies.” Chapter 54

of the Texas Property Code is entitled “Building

Landlord’s Lien.” Each chapter is discussed under

its respective heading.

Chapter 93 is short and covers only Sections

93.001 through 93.011. The provisions closely paral-

lel those in Sections 92.008(a) and 92.009, Subchap-

ter A, Chapter 92, dealing with residential landlord’s

liability for lockouts. The only difference is that the

locked-out commercial tenant must rst pay the

delinquent rent before a new key can be acquired.

What does Chapter 93, entitled

“Commercial Tenancies,” cover?

Chapter 93 applies exclusively to landlords and

tenants of commercial rental property. The phrase

commercial rental property means any rental prop-

erty not covered by Chapter 92 of the Texas Property

Code, which is devoted entirely to residential land-

lords and tenants (Section 93.001).

Can a commercial landlord interrupt a

commercial tenant’s utility services for

nonpayment of rent?

If the tenant pays the utility company directly, the

landlord may not interrupt or cause the interruption

of the services except for bona de repairs, construc-

tion or an emergency (Section 93.002[a]).

Can a commercial landlord remove a

tenant’s property or the building’s doors,

windows or other structural parts?

A landlord may not remove furniture, xtures or

appliances furnished by the landlord and leased to

a tenant unless the items are removed for bona de

repair or replacement. The repair and replacement

must be prompt.

A landlord may not remove a door, window or at-

tic hatchway cover or a lock, latch, hinge, hinge pin,

doorknob or other mechanism connected to a door,

window or attic hatchway cover unless the items re-

quire bona de repair or placement. Again, the repair

or replacement must be prompt (Section 93.002[b]).

Can a commercial landlord prevent a tenant

from entering the leased premises?

A commercial landlord may not intentionally

prevent a tenant from entering the leased premises

except by judicial process unless the exclusion re-

sults from:

(1) bona de repairs, construction or an emer-

gency,

(2) removing the contents of premises aban-

doned by a tenant, or

(3) changing the door locks of a tenant delin-

quent in paying at least part of the rent (Sec-

tion 93.002[c]).

How can a commercial landlord determine

when a tenant abandons the premises?

A tenant is presumed to have abandoned the

premises if goods, equipment or other property, in

an amount substantial enough to indicate a probable

intent to abandon the premises, is being or has been

removed from the premises, and the removal is not

within the normal course of the tenant’s business

(Section 93.002[d]).

A landlord may remove and store any tenant’s

abandoned property that remains on the premises.

In addition to the landlord’s other rights, the land-

lord may dispose of the stored property if the tenant

does not claim the property within 60 days after the

date of storage. The landlord must deliver a notice,

by certied mail, to the tenant at the tenant’s last

known address. The notice must state that the land-

lord may dispose of the tenant’s property if the ten-

ant does not claim it within 60 days after it is stored

(Section 93.002[e]).

Can a commercial landlord lock out a

tenant for nonpayment of rent? Must the

landlord provide the tenant a new key?

If a landlord or a landlord’s agent changes the door

lock of a tenant who is delinquent in paying rent, the

landlord or agent must place a written notice on the

tenant’s front door stating the name and the address

or telephone number of the individual or company

from which the new key may be obtained. The

new key is required to be provided only during the

tenant’s regular business hours and only if the tenant

pays the delinquent rent (Section 93.003[f]).

The requirement of the tenant paying the delin-

quent rent as a condition for getting a new key was

added by the 73rd Legislature, effective September 1,

1993.

101

What recourse does a tenant have when a

commercial landlord breaches a prohibition

described in Section 92.003?

If a commercial landlord causes an unauthorized

interruption of utilities, undertakes an unauthorized

removal of property or commits an unauthorized

removal of doorways, windows, and so forth, the ten-

ant may:

• either recover possession of the premises or

terminate the lease, and

• recover from the landlord an amount equal to

the sum of the tenant’s actual damages; one

month’s rent or $500, whichever is greater;

reasonable attorneys’ fees and court costs, less

any delinquent rents or other sums for which

the tenant is liable to the landlord (Section

93.002[g]).

According to Section 93.002(h), if the lease terms

contradict any provisions of Section 93.002 just dis-

cussed, the lease controls.

How can a commercial tenant regain

possession of the premises after an unlawful

lockout–i.e., when the landlord has not

abided by the requirements of Section

93.002(f)?

The commercial tenant must resort to judicial

assistance following an unlawful lockout. The ten-

ant must le a sworn complaint for reentry in the

justice court where the rental premises are located.

The complaint must specify the facts of the alleged

unlawful lockout. Also the tenant must state orally

under oath the facts of the alleged unlawful lockout

to the justice (judge) (Section 93.003[a] and [b]).

What can the justice of the peace do?

If the justice reasonably believes that an unlaw-

ful lockout occurred, the justice may issue a writ of

reentry, ex parte (without the landlord rst being

heard), that entitles the tenant to immediate but

temporary possession of the premises pending a full

hearing. The writ of reentry must be served on either

the landlord or the landlord’s management company,

on-premises manager or rent collector in the same

manner as a writ of possession in a forcible detained

action would be served. The sheriff or constable may

use reasonable force in executing a writ of reentry

(Sections 93.003[c] and [d]).

What rights does the landlord have after

being served? What happens if the landlord

does not request a hearing?

The landlord is entitled to a hearing on the ten-

ant’s sworn complaint for reentry. The writ of reen-

try must notify the landlord of the right to a hearing.

The hearing shall be held not earlier than the rst

day and not later than the seventh day after the date

the landlord requests it.

If the landlord fails to request a hearing before the

eighth day after the date the writ of reentry is served,

a judgment for court costs may be rendered against

the landlord (Sections 93.003[e] and [f]).

Can a judgment be appealed?

Either party may appeal from the court’s judgment

rendered at the hearing on the sworn complaint for

reentry in the same manner as an appeal from a judg-

ment in a forcible detainer suit. If a writ of posses-

sion is issued, it supersedes (controls over) a writ of

reentry (Sections 93.003[g] and [h]).

What two criminal penalties may be

imposed on a landlord or a landlord’s agent

who fails to comply with the court’s writ of

reentry?

First, it is grounds for contempt of court under Sec-

tion 21.002 of the Texas Government Code for the

landlord or the person on whom the writ is served to

disobey the writ.

Second, if the writ is disobeyed, the tenant or

the tenant’s attorney may le an affidavit with the

court in which the reentry action is pending. The

affadavit must state the name of the person who has

disobeyed the writ and describe the acts or omis-

sions constituting the disobedience. On receipt of an

affidavit, the justice shall issue a show cause order,

directing the person to appear on a designated date

and show cause why he or she should not be ad-

judged in contempt of court. If the justice nds, after

considering the evidence at the hearing, that the

person has directly disobeyed the writ, the justice

may commit the person to jail without bail until

the person purges himself or herself of the contempt

in a manner and form decided by the justice. If the

person disobeyed the writ before receiving the show

cause order but complied after receiving the order,

the justice may still nd the person in contempt and

assess punishment under Section 21.002(c) of the

Texas Government Code (Section 93.003[i]).

If the tenant les against the landlord for

punishment under Section 21.002(c) of the

Texas Government Code, is the tenant

precluded from pursuing the civil remedies

described earlier in Section 93.002(g)?

A tenant may pursue the landlord simultaneously

under Section 93.003(i) for criminal remedies and un-

der Section 93.002(g) for civil remedies. No election

of remedies is required (Section 93.003[j]).

102

What civil recourse does the landlord

have against a tenant who les a sworn

complaint for reentry in bad faith?

If a tenant les a sworn complaint for reentry in

bad faith resulting in a writ of reentry being served

on the landlord or landlord’s agent, the landlord may,

in a separate cause of action, recover from the tenant

an amount equal to actual damages; one month’s

rent or $500, whichever is greater; reasonable at-

torneys’ fees and costs of court, less any sums for

which the landlord is liable to the tenant (Section

93.003[k]).

How do the ling fees for the described legal

actions compare with other fees?

The fee for ling a sworn complaint for reentry is

the same as that for ling a civil action in the justice

court. The fee for service of a writ of reentry is the

same as that for service of a writ of possession. The

fee for service of a show cause order is the same

as that for service of a civil citation. However, the

justice may defer payment of the tenant’s ling fees

and service costs. Court costs may be waived only

if the tenant executes a pauper’s affidavit (Section

93.003[l]).

Can the landlord still le a forcible detainer

or forcible and detainer action while trying

to defend a writ of reentry action by the

tenant?

This section does not affect the rights of a landlord

or tenant in a forcible detainer or forcible entry and

detainer action (Section 93.003[m]).

How does the statute dene the term

security deposit for purposes of commercial

leases?

A security deposit is any advance of money, other

than a rental application deposit or an advance pay-

ment of rent, that is intended primarily to secure

performance under a lease of commercial rental

property (Section 93.004).

The statute requires the landlord to keep accurate

records of the deposits (Section 93.008). The statute

does not address the amount of the security deposit.

It is strictly negotiable.

When must the commercial tenant’s

security deposit be refunded?

The landlord must refund the security deposit

within 60 days after the date the tenant surrenders

possession of the premises and provides the landlord

or the landlord's agent a forwarding address.

The tenant’s claim to the security deposit super-

cedes any creditor’s claims against the landlord,

including a trustee in bankruptcy (Section 93.005).

The tenant does not forfeit the right to a refund of

the security deposit or the right to receive a descrip-

tion of damages and charges for failing to give a

forwarding address. Apparently, the landlord’s obliga-

tion continues until the forwarding address is given

(Section 93.009).

What may the landlord deduct from the

tenant’s security deposit before refunding

it?

The landlord may deduct from the security deposit

damages and charges resulting from a breach of the

lease for which the tenant is legally liable under the

lease.

What documentation of the deductions

from the security deposit must be given to

the tenant?

If the landlord retains all or part of the security

deposit, the landlord must refund any balance of the

deposit and give the tenant a written description and

itemized list of the deductions.

However, no written description and itemized list

of deductions are required if the tenant owes rent

at the time the premises are surrendered and the

amount of the rent owed is uncontested (Section

93.006).

What items cannot be deducted from the

tenant’s security deposit?

The landlord may not deduct any part of the secu-

rity deposit to cover normal wear and tear (Section

93.006[b]).

The term normal wear and tear is dened as de-

terioration that results from the intended use of the

commercial premises, including breakage or mal-

function due to age or deteriorated condition, but the

term does not include deterioration that results from

negligence, carelessness, accident or abuse of the

premises, equipment or chattels by the tenant, by a

guest or invitee of the tenant (Section 93.006[b]).

If a change in ownership occurs during the

lease term, who is liable for the return of

the security deposit, the former owner or

the new owner?

If an owner’s interest in the commercial property

is terminated by sale, assignment, death, appoint-

ment of a receiver, bankruptcy or otherwise (ex-

cept by a mortgage foreclosure sale) the new owner

is liable for the return of security deposits from

the date title to the property is acquired (Sections

93.007[a]&[c]).

This section does not relieve the former owner

of liability for the return of the security deposit, it

simply makes the former owner and the new owner

jointly liable for its return.

103

How can the former owner avoid liability

for the return of the security deposit after a

change in ownership occurs?

The former owner remains liable for a security

deposit until the new owner delivers to the tenant a

signed statement acknowledging that the new owner

has received the deposit and the statement species

the exact dollar amount of the deposit.

There is nothing the former owner can do to avoid

liability for the return of the security deposit. The

burden is on the new owner to give signed state-

ments to the tenants. Until the new owner acts

accordingly, the former owner remains jointly liable

with the new owner.

How is the amount of the security deposit

determined when a change of ownership

occurs?

The amount of the security deposit is the greater

of the amount provided in the tenant’s lease, or the

amount provided in an estoppel certicate prepared

by the former owner at the time the lease was ex-

ecuted or prepared by the new owner when the com-

mercial property is transferred (Section 93.007[b]).

May the tenant withhold the last month’s

rent and let the security deposit cover the

payment?

The security deposit is not collateral for the last

month’s rent. A tenant is prohibited from withhold-

ing all or part of the last month’s rent on the grounds

it will be taken out of the security deposit.

What if a tenant withholds the last month’s

rent in violation of this prohibition?

The tenant who violates this prohibition is pre-

sumed to have acted in bad faith. A tenant who in

bad faith withholds the last month’s rent is liable

to the landlord for three times the amount of rent

wrongfully withheld and the landlord’s reasonable

attorney’s fees to recover the rent (Section 93.010).

What are the consequences for the landlord

who in bad faith wrongfully withholds the

tenant’s security deposit?

The landlord who acts in bad faith by withholding

all or a portion of a security deposit is liable to the

tenant for:

• $100,

• three times the amount of the deposit wrong-

fully withheld, and

• the tenant’s reasonable attorneys’ fees in a suit

to recover the deposit.

The landlord, not the tenant, has the burden of

proving the retention of any portion of the deposit

was reasonable (Section 93.011[a]).

What are the consequences for the landlord

who in bad faith wrongfully fails to provide

an itemized list of deductions? May a

landlord wrongfully fail to provide an

itemized list of deductions?

The landlord who acts in bad faith by not provid-

ing a written description and itemized list of dam-

ages and charges:

• forfeits the right to withhold any portion of the

tenant’s security deposit,

• forfeits the right to bring suit against the tenant

for damages to the premises, and

• is liable for the tenant’s reasonable attorneys’

fees in a suit to recover the deposit (Section

93.011[b]).

A landlord who fails to either return the security

deposit or to provide a written description and item-

ized list of deductions on or before the 60

day after

the date the tenant surrenders possession is pre-

sumed to have acted in bad faith (Section 93.011[d]).

Evidently, the statute assumes the landlord has the

tenant’s forwarding address and there is no unpaid

rent due.

The term bad faith is not dened by the statute.

However, case law lends some clues. In the case of

Reed v. Ford, 760 S.W. 2d 26, the court held that the

term meant “ . . . an honest disregard of tenant’s

rights; bad faith requires intent to deprive tenant of

refund known to be lawfully due.”

Knowledge of the law plays an important role. In

the case of Ackerman v. Little, 679 S.W. 2d 70, the

court held that the landlord was an “amateur lessor”

having only one rental property. As such, the land-

lord was ignorant of the statute. This was considered

a factor in determining bad faith.

An appellate decision in 1994, Leskinen v. Burford,

892 S.W. 2d 135, exonerated a landlord from liability,

citing the “amateur-lessor” defense. The landlord

returned the deposit late — 35 days after surrender

of the premises. (This case involved a residential

lease requiring that the security deposit be returned

within 30 days after surrender of the premises.)

The appellate court distinguished this case from

a former one, Wilson v. O’Connor, 555 S.W. 2d 776,

in which the landlord was held liable. In Wilson, the

landlord never returned the deposit rather than being

ve days late.

One Section, Two Topics

The 77

Texas Legislator passed two statutes ef-

fective September 1, 2001, both of which added a

Section 93.004 to the Texas Property Code.

House Bill 2803, discussed earlier, added Sections

93.004 though 93.011, which deal with security

deposits. House Bill 2186 added a second Section

93.004, dealing with charges commercial landlords

may assess against commercial tenants.

104

Until the 78

Legislature session meets to resolve

the conict, the Texas Property Code has two Sec-

tions 93.004, each dealing with a different topic.

The following discusses H.B. 2186.

When may the landlord assess charges,

other than for rent and physical damages

against the property?

The landlord is prohibited from assessing charges

against the tenant, except for rent and physical dam-

age to the property except when the amount of the

charge or method of computing the charge is stated

in the lease, an exhibit or an attachment to the lease.

However, this prohibition does not affect the

landlord’s right to assess charges or obtain a remedy

permitted under another statute or the common law

(Section 93.012[a] and [b].

What affect do Sections 93.012(a) and (b)

have on governmental entities created

under Subchapter D, Chapter 22 of the

Texas Transportation Code?

Sections 93.012(a) and (b) do not affect the contrac-

tual rights of a landlord that is a governmental entity

created under Subchapter D, Chapter 22 of the Texas

Transportation Code whose constituent municipali-

ties are populous home-rule municipalities to assess

charges under a lease to fully compensate the gov-

ernmental entity for its operational costs (Section

93.012[c]).

Analyzing the Impact of the New Law

Section 93.004 of the Texas Property Code is rather

brief considering the huge impact it has on commer-

cial leases entered into, renewed or extended on or

after September 1, 2001. Glenn Koury, a Dallas attor-

ney with Vinson & Elkins, wrote an excellent review

of the impact and the potential problems created

by the statute in Vol. 40, No. 2 of the Real Estate,

Probate and Trust Law Reporter, a publication of the

State Bar of Texas, published January 2002.

Following are excerpts from the article (all ex-

with permission of the author).

Commercial leases, by their nature, contain

myriad charges besides base rent. They require

the tenant to make a variety of payments ranging

from complex rental escalations to straightfor-

ward reimbursements of the landlord’s out-of-

pocket expenses. In many cases, the standard for

payment is described as “the reasonable cost,”

“such amount as the landlord may determine,”

“as allocated by landlord,” “landlord’s custom-

ary charge,” or “at tenant’s cost.” Whether these

ways of determining charges are computation

methods required by the statute is far from clear.

Consider these charges and provisions typically

found in commercial leases:

• Formulas for sharing operating (or common

area) expenses in multitenant properties based

on rentable areas that may not be known

when the lease is entered into or that may

change as the project expands.

• Estimated monthly payments of operating

expenses, subject to a true-up at the end of the

year.

• Amortization of certain capital expenditures

(as part of operating expenses) using “a com-

mercially reasonable interest rate over a

reasonable period of time determined by the

landlord.”

• Allocation of operating expenses among

buildings in a multibuilding complex “in

such manner as the landlord may (reasonably)

determine.”

• The gross-up clause, which merely states the

concept — but not the method — of adjusting

variable expenses when the building is not

fully (or 95%) occupied or when services are

not being provided to all (or 95%) of the rent-

able area.

• Charges for utilities that are submetered to

the premises.

• Charges for overtime HVAC.

• A requirement that a retail tenant join and pay

unspecied dues to a merchants association.

• Amounts payable to the landlord to consider

a request for its consent under the lease, e.g.,

consent to a proposed assignment or sublease

or alterations to the premises.

• Charges incurred by the landlord when exer-

cising self-help remedies or reletting the prem-

ises after a tenant’s default, e.g., remodeling

the premises for a new tenant.

• Amounts payable to indemnify the landlord,

including losses resulting from acts of third

parties or even the landlord’s own negligence.

• Reimbursement of charges imposed on the

landlord under its lender’s loan documents be-

cause of the tenant’s late payment or nonpay-

ment of rent or because of the tenant’s default

under the lease.

The American Heritage Dictionary of the English

Language denes a “method” as “a means or manner

of procedure, especially a regular and systematic way

of accomplishing something.” It is unclear whether

the statute — which requires the lease to state the

“method by which the charge is to be computed”

— actually requires something akin to a formula, or

can be satised by describing a consistent process or

procedure for calculating the charge in question.

Operating expense provisions may need to be test-

ed at two different levels to determine compliance

with the statute: rst, as to the overall expense pot,

and second, as to specic items included within the

105

pot (“charges within a charge”). At the rst level, if

the tenant’s proportionate share is known (or capable

of being calculated), the basic operating expense

provision should satisfy the statute because multi-

plying such share times “all” operating expenses is

a “method.” Nevertheless, since the method itself

involves other calculations and discretionary deci-

sions by the landlord to determine the makeup of

the expense pot, the statute may also require compli-

ance by secondary lease provisions dealing with how

individual expense items are calculated or selected

for inclusion in total expenses.

The statute may be less problematic for triple-net

leases and so-called bondable leases, which, depending

on the degree of “netness,” shift all or practically

all property obligations to the tenant. For example,

if the tenant pays only base rent to the landlord but

pays all property obligations, e.g., taxes, insurance

and maintenance, directly to third parties, there may

be no other “charges” in the lease that are payable

to, or assessable by, the landlord. The landlord is in a

passive role under this type of lease and does not “as-

sess” any charges to the tenant. The landlord sim-

ply collects a net rental, and the tenant effectively

assumes all burdens and obligations of operating the

leased premises during the lease term.

Transactions Covered by the Statute

Although the types of transactions covered by the

new statute are straightforward, they may take on a

variety of forms, including:

• Leases entered into on or after September 1,

2001, and renewals or extensions of those

leases.

• Amendments to pre-September 1, 2001 leases

to (1) renew or extend the lease term, or (2)

lease new space to the tenant, whether as a

result of the exercise of an expansion option,

right of rst refusal or other preferential right,

or otherwise.

• Renewals or extensions of pre-September 1,

2001 leases that become effective without

formal amendments, e.g., where the lease xes

the rent for the renewal term, and the renewal

is implemented merely by the tenant’s exercise

of its renewal option.

Landlords should be mindful of the new statute

when amending older leases, which may become

subject to the new statute when amended. For pur-

poses of the state, a lease “entered into” may mean

not only the execution of a new lease document,

but also any transaction involving a lease grant. For

example, the lease of additional space, even if docu-

mented as an amendment to an existing lease, is a

new lease as to such space because it involves a new

lease grant. It is less clear whether the statute covers

pre-September 1, 2001 leases that provide for a post-

September 1, 2001 “staged” delivery of the original

premises or a mandatory expansion as to “must-

take” space. Arguably, in those cases, the lease grant

as to all of the premises occurred upon lease execu-

tion, and only the rent commencement date as to

the subsequently delivered space has been delayed

under the terms of the original contract. Likewise,

substituting new space for space leased under a pre-

September 1, 2001 lease can be problematic. If the

substitution is made under a specic substitution

clause in the existing lease, the transaction could be

viewed as a lease of space under a grant that had its

inception in the original lease, which authorized the

substitution and continues to apply to the substi-

tute space. On the other hand, the transaction could

be viewed as a new lease because it involves a new

lease grant as to space not identied in the original

lease.

Dealing with Charges in the Lease

Until the statute is claried by the Legislature

or interpreted by the courts, commercial landlords

should proceed cautiously when assessing charges

under provisions other than those of base rent.

Clauses that are vague or that give the landlord too

much discretion could easily run afoul of the new

statute. Following are several ways for landlords

to deal with the uncertainties created by the new

statute.

Agree on “Compliance” with the Statute

As an overall approach, the parties should agree

that the prescribed ways of determining additional

charges in the lease are “computation methods” for

purposes of the statute. Additionally, since the stat-

ute does not expressly prohibit or void a waiver of

rights or duties under the statute, the parties should

consider including an express waiver in the lease.

If challenged in court, these approaches may not be

upheld, but at least they indicate that the parties

have negotiated calculation methods they consider

acceptable and reasonable.

Be More Specic, Even With Estimated

Payments

Whenever possible, the lease should state the

initial amount of estimated payments required by

the tenant. The same goes for nonrecurring charges

such as administrative fees and charges for overtime

air-conditioning. Even though the stated payments

may be adjusted or re-estimated periodically under

provisions that are not true formulas, disclosing the

estimated amount when the lease is entered into

will minimize any claim of surprise by the tenant

and reinforce the landlord’s position that the amount

of the charge has been stated in the lease.

Reexamine Sharing and Escalation Formulas

Landlords should review other lease provisions

intended to be true formulas — such as those that

106

dene the tenant’s “proportionate share” or adjust

amounts based on increases in the Consumer Price

Index (CPI) — to ensure that the formulas contain

all elements necessary to make the desired calcula-

tion. Formulas must still be sufficiently clear to be

enforceable under basic contract law. Although the

statute does not make poorly drafted formulas any

more unenforceable than under contract law, the

new law gives tenants the opportunity to dispute

charges calculated under a formula that does not

adequately state the computation method.

Most leases dene the tenant’s “proportionate

share” either as a stated percentage or a ratio be-

tween two numbers (the area of the premises and the

total area of the building) that, in most cases, can be

readily calculated. If the areas of the premises and

the building (if under construction) are not known

when the lease is entered into or are subject to re-

measurement, the lease should state the method of

measurement.

Sometimes, it may not be possible or practicable

to state a precise measurement method or one that

does not give some discretion to the landlord. For ex-

ample, leases of space in telecommunication switch

facilities (sometimes called telecom carrier hotels)

often state the method of measurement as “BOMA,

as modied for the Project pursuant to Landlord’s

standard rentable area measurements for the Proj-

ect.” Retail leases in shopping centers that are still

being developed use an expandable denition of

“proportionate share” that adjusts with any change

in the size of the shopping center, all without stat-

ing a measurement method. Arguably, these types

of clauses in telecom and shopping center leases are

still computation methods even though they do not

express the precise underlying method of measuring

the space in question.

Clauses that adjust charges based on changes in

the CPI need essential elements to work properly.

To be effective, a CPI escalation clause should: (1)

identify its population group, i.e., whether it is the

CPI for All Urban Consumers (CPI-U) or the CPI for

Urban Wage Earners and Clerical Workers (CPI-

W), (2) identify its coverage area, i.e., the U.S. City

Average or a specic region or local area, (3) state

whether it includes “All Items” or is a special index

that excludes a particular product or product group,

(4) state the reference base period (currently 1982-

84 = 100), (5) identify a period over which changes

in the CPI will be measured, i.e., a base index (the

CPI against which a later CPI will be compared) and

a comparison index (a subsequent CPI that will be

compared to the base index to measure any change),

(6) state the frequency of the adjustment, e.g., an-

nually at the beginning of each lease year, (7) state

whether any “cap” or “oor” applies to the calcu-

lation, and (8) state what happens if the CPI is no

longer published or is substantially changed or the

current reference base is changed.

Timing Issues — Waiver and Estoppel

Practically, the most difficult issue for commercial

landlords is predicting when a tenant might claim

that a charge does not comply with the statute. As

noted above, the original, residential version of the

bill dealt with charges assessed at the end of the

lease term or after a tenant surrendered the prem-

ises. The nal, commercial version of the statute ap-

plies to certain charges, regardless of when they are

made. Tenants pay many of the charges discussed in

this article, particularly escalations, on an ongoing

basis throughout the lease term. With the passage of

time, a tenant’s right to dispute regular charges un-

der the lease should diminish. A landlord will have a

strong argument that a tenant — especially one with

audit rights under the lease — is estopped from chal-

lenging, and has waived any right to challenge, the

validity and method of computing charges the tenant

has paid regularly under the provisions of the lease,

no matter how vague, discretionary or non-formulaic

they may be. Still, a tenant may attempt to use the

statute to dispute specic costs included in the oper-

ating expense pot or challenge other specic charges

as they arise under the lease.

No magic language can eliminate the confusion

created for landlords by the statute or ensure that

long-standing methods of calculating charges under

commercial leases will comply. With a little caution,

however, landlords should be able to minimize any

issues concerning their right to collect escalations,

reimbursements and other charges under typical

commercial lease provisions.

107

Submetering Water Use in Individual Dwelling Units Found in

Condominiums, Apartment Houses Containing Five or More Dwelling Units,

Manufactured Home Rental Communities, and Multiple-Use Facilities

Sections 13.501 through 13.506, Texas Water Code

On September 1, 2001, the Texas Legislature added

Sections 13.501 through 13.506 to the Texas Water

Code. The sections apply to submetering of water

used in condominiums, apartment houses with ve

or more dwelling units, manufactured home rental

communities and multiple-use facilities (dened

below) on which construction began after January 1,

2003. The statutes vary the requirements for each

type of structure. They are not uniform, so a careful

reading is required. Submeters are not required on

structures or commnities constructed before that

date.

The statute discusses the requirements placed

on the managers and owners to install equipment

for submetering water used in individual dwelling

units in condominiums, apartment houses with ve

or more dwelling units, manufactured home rental

communities, and multiple-use facilities.

Section 13.501 contains denitions vital to the

understanding of Section 13.502. They are:

Apartment house — one or more buildings contain-

ing ve or more dwelling units that are occupied

primarily for nontransient use, including a residen-

tial condominium whether rented or owner occupied

and, having rental paid, if a dwelling unit is rented,

at intervals of one month or longer.

Dwelling unit — one or more rooms in an apartment

house, or condominium, suitable for occupancy as

a residence, and containing kitchen and bathroom

facilities or a manufactured home in a manufactured

home rental community.

Customer — the individual, rm, or corporation in

whose name a master meter has been connected by

the utility service provider.

Multiple-use facility — commercial or industrial

parks, office complexes, marinas, and other types of

facilities specically identied in commission rules

with ve or more units.

Manufactured home rental community — a property

on which spaces are rented for the occupancy of

manufactured homes for nontransient residential

use and for which rental is paid at intervals of one

month or longer.

Nonsubmetered master metered utility service —

water utility service that is master metered for the

apartment house but not submetered and wastewa-

ter utility service based on master-metered water

utility service.

Owner — the legal title holder of an apartment

house, manufactured home rental community or

multiple-use facility and any individual, rm, or cor-

poration that purports to be the landlord of tenants

in the apartment house, manufactured home rental

community, or multiple-use facility.

Tenant — a person who is entitled to occupy a dwell-

ing unit or multiple-use facility unit to the exclu-

sion of others and who is obligated to pay for the

occupancy under a written or oral rental agreement

(Section 13.501).

Who is required to install measuring

devices for the quantity of water consumed

by an occupant? Do the rules apply to all

structures?

Owners and managers of condominiums, apart-

ment houses, manufactured home rental communi-

ties, or multiple-use facilities on which construction

began after January 1, 2003, are required to install

measuring devices for the quantity of water, if any,

consumed by the occupants of each unit. This must

be done by the installation of:

(1) submeters, owned by the property owner or

manager, for each dwelling unit or rental unit

(2) individual meters, owned by the retail public

utility, for each dwelling unit or rental unit

(Section 13.502[b]).

What about the same buildings constructed

before January 1, 2003?

If construction began before January 1, 2003, the

owners of the apartment house, the manufactured

home rental community, the multi-use facility or

the manager of a condominium may provide for the

submetering. It is optional, not a requirement (Sec-

tion 13.502[a]).

Are there any specic rules for subsidized

apartment houses?

Yes. An owner of an apartment house on which

construction begins after January 1, 2003, and who

provides government assisted or subsidized rental

housing to low or very low income residents shall

install a plumbing system in the apartment house

that is compatible with the installation of submeters

for the measurement of the quantity of water, if any,

108

consumed by the occupants of each unit (Section

13.502[c]).

Who must install individual meters?

The manager or owner may request a retail public

utility to install individual meters owned by the util-

ity. The retail public utility must comply with the

request if the installation is feasible. If not, the man-

ager or owner should install a plumbing system that

is compatible with the installation of the submeters

or the individual meters of the retail public utility

(Section 13.502[d]).

May the retail public utility charge for the

installation when it is feasible?

Yes. A retail public utility may charge reasonable

costs to install individual meters (Section 13.503[d]).

Once submetering begins, can the manager

or owner switch to allocated billing?

The manager or owner may not change from sub-

metering to allocated billing unless:

(1) the utility commission approves of the change

in writing after a demonstration of good cause,

including equipment failures or meter reading

or billing problems that could not be corrected

feasibly and

(2) the property owner meets the rental agreement

requirements established by the utility com-

mission (Section 13.502[e]).

Must the utility commission encourage

submetering of individual rental or dwelling

units by master operators or building

owners?

Yes. The utility commission shall encourage

submetering of individual rental or dwelling units

by master meter operators or building owners to

enhance the conservation of water resources (Section

13.503[a]).

What about apartment houses,

manufactured home rental communities,

or multiple-use facilities that are not

individually metered for water for each

rental or dwelling unit? What rules govern

them?

For the owners, operators or managers of apart-

ment houses, manufactured home rental communi-

ties, or multiple-use facilities that are not individu-

ally metered for water for each rental or dwelling

unit, the utility commission shall adopt rules and

standards for installing submetering equipment

that fairly allocate the cost of each individual rental

or dwelling unit’s water consumption, including

wastewater charges, based on water consumption.

The rules, among other things, shall prohibit the

apartment house owner, manufactured home rental

community owner, multiple-use facility owner, or

condominium manager from imposing extra charges

over and above the cost per gallon and any other ap-

plicable taxes and surcharges that are charged by the

retail public utility to the owner or manager (Section

13.503[a]).

What records must the rental unit or

apartment house owner or manager

maintain?

The rental unit or apartment house owner or

manager shall maintain adequate records regard-

ing submetering and make the records available for

inspection by the tenant during reasonable business

hours (Section 13.503[a]).

Can any fees be charged for late payments?

Yes. A late payment of a submetered water bill is

permitted as long as the amount of the fee does not

exceed ve percent (5%) of the bill paid late (Section

13.503[a]).

What about the submetering equipment?

What standards must it meet?

All submetering equipment is subject to the rules

and standards established by the utility commis-

sion for accuracy, testing, and record keeping of

meters installed by utilities and to the meter-testing

requirements of Section 13.140 of the Texas Water

Code that authorize the regulatory authority to

enter, examine and test any meter, instrument, or

equipment used for the measurement of service of

any utility (Section 13.503[a]).

May the owner or manager of a

manufactured home rental community or

apartment house owners impose a service

charge for submetering?

With two exceptions for apartment house own-

ers, the owner or manager of a manufactured home

rental community or apartment house may impose

a service charge of not more than nine percent (9%)

of the “costs related to submetering” allocated to

each submetered rental or dwelling unit (Section

13.503[a]).

How is the term “costs related to

submetering” dened as used above

regarding service charges?

The term “costs related to submetering” means

water costs as well as any other applicable taxes

and surcharges that are charged by the retail public

utility to the owner or manager of a manufactured

home rental community or apartment house (Sec-

tion 13.503[d]).

109

What are the two exceptions for apartment-

house owners?

The owner or manager of an apartment house may

not impose a service charge on a resident who:

(1) resides in a unit of an apartment house that has

received an allocation of low income hous-

ing tax credits under Subchapter DD, Chapter

2306, Government Code or

(2) receives tenant-based voucher assistance under

Section 8, United States Housing Act of 1937

(42 U.S.C. Section 1437f), (Section 13.50[b] and

[c]).

Can the utility commission authorize

building owners to use “high tech”

submetering equipment?

Yes. The utility commission may authorize a

building owner to use submetering equipment that

relies on integrated radio based meter reading sys-

tems and remote registration in a building plumbing

system using submeters that comply with nationally

recognized plumbing standards and are as accurate as

utility water meters in single application conditions

(Section 13.503[e]).

May the utility commission adopt other

rules and standards that permit the

nonmetering of manufactured home

rental communities, apartment houses,

condominiums, or other multiple-use

facilities?

Yes. In addition to the rules discussed in Section

13.503, the utility commission shall adopt rules and

standards governing billing systems or methods used

by manufactured home rental community owners,

apartment house owners, condominium managers,

or owners of other multiple-use facilities for pro-

rating or allocating among tenants nonsubmetered

master metered utility service costs.

What shall these rules require?

In addition to other appropriate tenant safeguards,

the rules shall require that:

(1) the rental agreement includes a clear written

description of the method for calculating the

allocation of nonsubmetered master metered

utilities for the manufactured home rental

community, apartment house or multiple-use

facility,

(2) the rental agreement contains a statement of

the average manufactured home, apartment or

multiple-use facility unit monthly bill for all

units for any allocation of those utilities for the

previous calendar year,

(3) except as discussed earlier in Section 13.503,

an owner or condominium manager may not

impose additional charges on a tenant in excess

of the actual charges imposed on the owner or

condominium manager for utility consumption

by the manufactured home rental community,

apartment house, or multiple-use facility,

(4) the owner or condominium manager shall

maintain adequate records regarding the utility

consumption of the manufactured home rental

community, apartment house, or multiple-use

facility, the charges assessed by the retail public

utility, and the allocation of the utility costs to

the tenants,

(5) the owner or condominium manager shall

maintain all necessary records concerning util-

ity allocations, including the retail public util-

ity's bills, and shall make the records available

for inspection by the tenants during normal

business hours, and

(6) the owner or condominium manager may

charge a tenant a fee for late payment of an al-

located water bill if the amount of the fee does

not exceed ve percent (5%) of the bill paid late

(Section 13.5031).

What if an owner, operator, or manager of

an apartment house, manufactured home

rental community, or other multiple-use

facility raises the rental rates 90 days

preceding the installation of the individual

meters or submeters and the increase

is attributable to the increased costs of

utilities?

No. If the owner, operator, or manager raises the

rental rates under these conditions, the owner,

operator, or manager shall immediately reduce the

rental rate by the amount of the increase and refund

all of the increase that has previously been collected

within the 90-day period (Section 3.504).

What rights do tenants have when an

apartment house owner, condominium

manager, manufactured home rental

community owner, or other multiple-use

facility owner violates a rule of the utility

commission regarding submetering of

utility service consumed exclusively within

the tenant's dwelling unit or multiple-

use facility unit or nonsubmetered master

metered utility costs?

The tenant may recover three times the amount of

any overcharge, a civil penalty equal to one month's

rent, reasonable attorney's fees, and court costs

from the owner or condominium manager (Section

13.505).

110

Are there any exceptions to the recoveries?

Yes. An owner of an apartment house, manufac-

tured home rental community, or other multiple-use

facility or condominium manager is not liable for a

civil penalty if the owner or condominium manager

proves the violation was a good faith, unintentional

mistake (Section 13.505).

After January 1, 2003, what two things

must an owner of an apartment house,

manufactured home rental community,

or multiple-use facility or a manager of a

condominium do before implementing a

program to bill tenants for submetered or

allocated water service?

They must:

(1) meet the standards prescribed by Section

372.002, Health and Safety Code, for sink or

lavatory faucets, faucet aerators, and shower-

heads and

(2) perform a water-leak audit of each dwelling

unit or rental unit and each common area and

repair any leaks (Section 13.506[a]).

Once the owner of an apartment house,

manufactured home rental community,

or multiple-use facility or a manager of

a condominium begins billing, what else

must they do?

Not later than the rst anniversary date after an

owner of an apartment house, manufactured home

rental community, or multiple-use facility or a man-

ager of a condominium begins to bill for submetered

or allocated water service under Subsection (a), the

owner or manager shall:

(1) remove any toilets that exceed a maximum

ow of 3.5 gallons of water per ushing and

(2) install toilets that meet the standards pre-

scribed by Section 372.002, Health and Safety

Code (Section 13.506[b]).

Are there any exceptions to these four

requirements?

Yes. The four requirements regarding the com-

mencement of billing does not apply to the owner of

a manufactured home rental community who does

not own the manufactured homes located on the

property of the manufactured home rental commu-

nity (Section 13.506[c]).

What are the requirements contained in

Section 372.002 of the Texas Health and

Safety Code?

Effective Sept. 1, 2009, the provisions contained in

Section 372.002 of the Texas Health and Safety Code

are reproduced below.

§ 372.002. Water Saving Performance

Standards

(a) A person may not sell, offer for sale, distribute, or

import into this state a plumbing xture for use

in this state unless:

(1) the plumbing xture meets the water saving

performance standards provided by Subsection

(b); and

(2) the plumbing xture is listed by the commis-

sion under Subsection (c).

(b) The water saving performance standards for a

plumbing xture are the following standards:

(1) for a sink or lavatory faucet or a faucet aerator,

maximum ow may not exceed 2.2 gallons of

water per minute at a pressure of 60 pounds

per square inch;

(2) for a shower head, maximum ow may not

exceed 2.5 gallons of water per minute at a

constant pressure over 80 pounds per square

inch;

(3) for a urinal and the associated ush valve, if

any, sold, offered for sale, or distributed in this

state before January 1, 2014:

(A) maximum ow may not exceed an average

of one gallon of water per ush; and

(B) the urinal and the associated ush valve, if

any, must meet the performance, testing,

and labeling requirements prescribed by

American Society of Mechanical Engineers

Standard A112.19.2-2008 and Canadian

Standards Association Standard B45.1-2008

“Vitreous China Plumbing Fixtures and

Hydraulic Requirements for Water Closets

and Urinals;”

(4) except as provided by Subsection (g), for a uri-

nal and the associated ush valve, if any, sold,

offered for sale, or distributed in this state on

or after January 1, 2014:

(A) maximum ow may not exceed an average

of 0.5 gallons of water per ush; and

(B) the urinal and the associated ush valve, if

any, must meet the performance, testing,

and labeling requirements prescribed by the

following standards, as applicable:

(i) American Society of Mechanical Engi-

neers Standard A112.19.2-2008 and Ca-

nadian Standards Association Standard

B45.1-2008 “Vitreous China Plumbing

Fixtures and Hydraulic Requirements

for Water Closets and Urinals;” or

(ii) American Society of Mechanical Engi-

neers Standard A112.19.19-2006 “Vitre-

ous China Nonwater Urinals;”

(5) for a toilet sold, offered for sale, or distributed

in this state before January 1, 2014:

111

(A) maximum ow may not exceed an average

of 1.6 gallons of water per ush; and

(B) the toilet must meet the performance, test-

ing, and labeling requirements prescribed

by the following standards, as applicable:

(i) American Society of Mechanical Engi-

neers Standard A112.19.2-2008 and Ca-

nadian Standards Association Standard

B45.1-2008 “Vitreous China Plumbing

Fixtures and Hydraulic Requirements

for Water Closets and Urinals;” and

(ii) American Society of Mechanical Engi-

neers Standard A112.19.14-2006 “Six-

Liter Water Closets Equipped With a

Dual Flushing Device;”

(6) except as provided by Subsection (h), for a toi-

let sold, offered for sale, or distributed in this

state on or after January 1, 2014:

(A) the toilet must be a dual ush water closet

that meets the following standards:

(i) the average ush volume of two re-

duced ushes and one full ush may

not exceed 1.28 gallons; and

(ii) the toilet must meet the performance,

testing, and labeling requirements pre-

scribed by the following standards, as

applicable:

(a) American Society of Mechanical

Engineers Standard A112.19.2-2008

and Canadian Standards Association

Standard B45.1-2008 “Vitreous China

Plumbing Fixtures and Hydraulic

Requirements for Water Closets and

Urinals;” and

(b) American Society of Mechanical

Engineers Standard A112.19.14-2006

“Six-Liter Water Closets Equipped

With a Dual Flushing Device;” or

(B) the toilet must be a single ush water closet

that meets the following standards:

(i) the average ush volume may not ex-

ceed 1.28 gallons; and

(ii) the toilet must meet the performance,

testing, and labeling requirements

prescribed by American Society of Me-

chanical Engineers Standard A112.19.2-

2008 and Canadian Standards Associa-

tion Standard B45.1-2008 “Vitreous

China Plumbing Fixtures and Hydraulic

Requirements for Water Closets and

Urinals;” and

(7) a drinking water fountain must be self-closing.

rent list of plumbing xtures that are certied to

the commission by the manufacturer to meet the

water saving performance standards established

by Subsection (b). To have a plumbing xture

included on the list, a manufacturer must supply

to the commission, in the form prescribed by the

commission:

(1) the identication and the performance speci-

cations of the plumbing xture; and

(2) certied test results from a laboratory ac-

credited by the American National Standards

Institute verifying that the plumbing xture

meets the water saving performance standards

established by Subsection (b).

(d), (e) Repealed by Acts 2009, 81st Leg., ch. 1316, § 6.

(f) This section does not apply to:

(1) a plumbing xture that has been ordered by or

is in the inventory of a building contractor or a

wholesaler or retailer of plumbing xtures on

January 1, 1992;

(2) a xture, such as a safety shower or aspirator

faucet, that, because of the xture's special-

ized function, cannot meet the standards

provided by this section;

(3) a xture originally installed before January 1,

1992, that is removed and reinstalled in the

same building on or after that date;

(4) a xture imported only for use at the importer's

domicile;

(5) a nonwater-supplied urinal; or

(6) a plumbing xture that has been certied by

the United States Environmental Protection

Agency under the WaterSense Program.

(g) The water saving performance standards for a

urinal and the associated ush valve, if any, sold,

offered for sale, or distributed in this state on or

after January 1, 2014, are the standards prescribed

by Subsection (b)(3) if the urinal was designed for

heavy-duty commercial applications.

(h) The water saving performance standards for a

toilet sold, offered for sale, or distributed in this

state on or after January 1, 2014, are the standards

prescribed by Subsection (b)(5) if the toilet is a

water closet that has a design not typically found

in a residential application or that is designed for

a specialized application, including a water closet

that:

(1) is mounted on the wall and discharges to the

drainage system through the oor;

(2) is located in a correctional facility, as dened

by Section 1.07, Penal Code;

(3) is used in a bariatric application;

(4) is used by children at a day-care facility; or

(5) consists of a non-tank type commercial bowl

connected to the plumbing system through a

pressurized ushing device.

112

Landlord's Lien on Commercial Buildings

Subchapter B, Chapter 54, Texas Property Code

The Texas Property Code allows commercial land-

lords to place a lien on a tenant’s property within a

building to secure rent payments (Subchapter B, Sec-

tion 54). The subchapter discusses the requirements

necessary for the lien to arise.

The requirements are somewhat similar to the

residential landlord’s lien found in Subchapter C,

Section 54 of the Texas Property Code.

Subchapter B includes Sections 54.021 through

54.025.

How does the landlord’s lien on commercial

buildings work? What property and what

period does it cover?

A person who leases or rents all or a part of a

building for nonresidential use has a preference lien

on the property of the tenant or subtenant in the

building for rent that is due. The preference lien also

covers rent that is to become due during the current

12-month period succeeding the date of the begin-

ning of the rental agreement or an anniversary of

that date (Section 54.021).

Does the lien arise automatically or is there

a required timely ling for enforcement?

The lien is unenforceable for rent on a commer-

cial building that is more than six months past due

unless the landlord les a lien statement with the

county clerk of the county where the building is

located (Section 54.022[a]).

Must the lien statement be veried? What

particular items must the lien statement

contain?

The lien statement must be veried by the land-

lord or the landlord’s agent or attorney. The lien

statement must contain the following four items:

• an account, itemized by month, of the rent for

which the lien is claimed,

• the name and address of the tenant or subten-

ant, if any,

• a description of the leased premises and

• the beginning and termination dates of the

lease (Section 54.022[b]).

Once the rental lien statement is led, the county

clerk is required to index it alphabetically (Section

54.022[c]).

Does the preferential lien created by Section

54.021 cover exempt property such as that

protected by the Texas Business Homestead

laws?

The subchapter does not affect a statute exempting

property from forced sale (Section 54.023).

How long does the lien last?

The lien exists while the tenant occupies the

building and until one month after the day that the

tenant abandons the building (Section 54.024).

How can a commercial landlord prevent a

tenant from removing the tenant’s property

and avoid the landlord’s building lien for

unpaid rent?

The person to whom rent is payable under a build-

ing lease may apply to the justice of the peace in the

precinct where the building is located for a distress

warrant if the tenant is:

(1) delinquent in rent payments,

(2) about to abandon the building or

(3) about to remove the tenant’s property from

the building (Section 54.025).

A distress warrant is a writ (or order) from the

justice authorizing an officer to detain a tenant’s

property for nonpayment of rent.

113

changes are not allowed. The section contains no

such provisions.

What are the remedies for damages caused

by a violation of Chapter 59?

The person’s remedies for damages lie with the

Texas Deceptive Trade Practices Act found in Chap-

ter 17, Subchapter E of the Texas Business and Com-

merce Code (Section 59.005).

Although not stated, the damages referred to in the

section are those experienced by a tenant when the

lessor seizes and sells the stored property improperly.

When does a lien attach to property

stored at a facility? What priority does the

lien have with other liens on the stored

property?

According to Section 59.006, a lien attaches on the

date the tenant places the property at the self-service

storage facility. The lien takes priority over all other

liens.

If the property, subject to the self-service

storage facility lien, is sold, does the

purchaser take it subject to a pre-existing

lien on the stored property?

No. A good-faith purchaser of items sold to satisfy

a lien under this chapter takes the property free and

clear of any other liens that may exist, regardless of

whether or not the lessor complied with the proce-

dures described in this chapter (Section 59.007).

Does the tenant, whose property is sold to

satisfy the self-service storage facility lien,

have a right to redeem the property?

Yes, but only after the seizure and before the

sale. A tenant may redeem property seized under a

judicial order or a contractual landlord’s lien prior to

its sale or other disposition by paying the lessor the

amount of the lien and the lessor’s reasonable ex-

penses incurred under this chapter (Section 59.008).

The time between the seizure and sale varies

between 26 to 31 days, depending on whether or not

the sale is published or posted.

Can the tenant use the premises for

residential purposes as well as storage?

No. A tenant may not use or allow the use of a

self-service storage facility as a residence (Section

59.009).

Self-service storage facilities grow in number each

year. The Texas Property Code governs the use of

self-service storage facilities. Primarily the code fo-

cuses on landlords’ remedies for nonpayment of rent

(Sections 59.001 through 59.046).

The unique feature of the chapter is that property,

not people, occupies the leased facilities.

What terms are dened by Section 59.001?

There are four key denitions.

• Lessor — an owner, lessor, sublessor or manag-

ing agent of a self-service storage facility.

• Rental agreement — a written or oral agree-

ment that establishes or modies the terms of

use of a self-service storage facility.

• Self-service storage facility — real property that

is rented to be used exclusively for storage of

property and is cared for and controlled by the

tenant.

• Tenant — a person entitled under a rental

agreement to the exclusive use of storage space

at a self-service storage facility.

What agreements are covered by the

chapter?

The chapter applies to all self-service facility

rental agreements entered, extended or renewed after

September 1, 1981 (Section 59.002).

What statutes expressly do not apply to self-

service storage facilities?

Subchapter B, Chapter 54 of the Texas Property

Code deals with a landlord’s lien on commercial

buildings and does not apply to self-service storage

facilities (Section 59.003).

Likewise, unless a lessor issues a warehouse re-

ceipt, bill of lading or other document of title relat-

ing to property stored at the facility, the following

statutes do not apply:

• Chapter 7, Business & Commerce Code, as

amended,

• Subchapter A, Chapter 14, Agriculture Code, as

amended, and

• Sections 14.201, 14.204 through 14.214, and

14.216, Agriculture Code.

Can the lessor or tenant vary any provisions

of Chapter 59 by agreement or waiver?

According to Section 59.004, unless a particular

statute expressly provides for a variance or waiver,

Self-Service Storage Facility Liens

Chapter 59, Texas Property Code

114

Is any property placed at the facility exempt

from the self-storage lien?

No. The lessor has a lien on all property in a self-

service storage facility for the payment of charges

that are due and unpaid by the tenant (Section

59.021).

How does the lessor enforce the self-service

storage facility lien — i.e., what is the

legal procedure for seizing and selling the

property?

There are two methods of enforcing the lien. If the

rental agreement contains a contractual landlord’s

lien, underlined or printed in conspicuous bold print,

then the lessor can seize and sell the property by

following the procedures outlined in subsequent sec-

tions of this chapter.

If the rental agreement lacks a contractual land-

lord’s lien, then the only enforcement is judicial.

The landlord must obtain a judgment from a court

of competent jurisdiction against the tenant for the

amount of the lien. The court must then order the

sale of the property in satisfaction of the judgment

(Section 59.041).

What steps are involved in seizing and

selling the property under the contractual

landlord’s lien?

First, the lessor must deliver written notice (Sec-

tion 59.043) of the claim to the tenant in person or

by email or veried mail to the tenant's last known

email or postal address as stated in the rental agree-

ment or in a written notice from the tenant to the

lessor furnished after the execution of the rental

agreement. The notice may not be sent by email

unless a written rental agreement between the lessor

and the tenant contains language underlined or in

conspicuous bold print that notice may be given by

email if the tenant elects to provide an email address.

If the tenant does not satisfy the claim within 15

days after delivery, the lessor must either publish or

post notices (Section 59.044) of sale. If the notice of

sale is published, the sale may occur 16 days later.

If notice is posted, the sale may occur 11 days later

(Section 59.042).

What must be included in the notice of

claim to the tenant? How and where must

the notice be delivered or sent?

The notice of claim must contain:

(1) an itemized account of the claim;

(2) the name, address and telephone number of the

lessor or the lessor’s agent;

(3) a statement that the contents of the self-ser-

vice storage facility have been seized under the

contractual landlord’s lien; and

(4) a statement that if the claim is not satised

before the 15th day after the day on which the

notice is delivered, the property may be sold at

public auction (Section 59.043[a]).

The notice of claim must be delivered personally

or sent by certied mail to the tenant’s last known

address as stated in the rental agreement or in a writ-

ten notice from the tenant to the lessor furnished af-

ter the execution of the rental agreement. Notice by

mail is considered delivered when properly addressed

with postage prepaid and deposited with the United

States Postal Service (Section 59.043[b]).

What must be included in the notice of sale

either published or posted by the lessor?

The notice of sale must contain:

(1) a general description of the property,

(2) a statement that the property is being sold to

satisfy a landlord’s lien,

(3) the tenant’s name,

(4) the address of the self-service storage facility,

and

(5) the time, place and terms of the sale (Section

59.044[a]).

If the lessor publishes the notice of sale,

where and how often must the notice be

published?

If a newspaper of general circulation in the county

exists where the self-service storage facility is lo-

cated, the notice of sale must be posted once in each

of two consecutive weeks of the newspaper (Section

59.044[b]).

If the lessor posts (does not publish) the

notice of sale, where must the posting

occur?

If the county has no general circulation newspaper,

the lessor may post copies of the notice of sale at the

self-service storage facility and in at least ve other

conspicuous locations nearby (Section 59.044[b]).

The statute does not allow the lessor the option

of either publishing or posting. It depends on the

availability of a local county newspaper of general

circulation.

Also, no Texas cases have decided what constitutes

“ve other conspicuous locations near the facility.”

How must the sale be conducted under the

contractual landlord’s lien?

The lessor must conduct a public sale at the self-

service storage facility or at a public place nearby.

The sale must comply with the terms specied in

the notice advertising the sale. The property must be

sold to the highest bidder (Section 59.045).

115

If the lessor receives excess proceeds from

the sale, must the tenant be notied?

Yes. If the proceeds of a sale are greater than the

amount of the lien and the reasonable expenses of

the sale, the lessor shall deliver written notice of the

excess to the tenant’s last known address as stated in

the rental agreement or in a written notice from the

tenant to the lessor furnished after the execution of

the rental agreement (Section 59.046).

Must the lessor automatically deliver the

excess proceeds to the tenant or must the

tenant rst request them?

The lessor is required to retain the excess funds

for two years after the date of the sale. If, during this

time, the tenant requests the funds, the lessor must

give them to the tenant. If not, the excess belongs to

the lessor (Section 59.046).

116

Mediation

As emphasized repeatedly throughout this publi-

cation, litigation in the justice court is the primary

means to resolve disputes involving a breach of the

contract or a failure to fulll a statutory mandate.

Mediation represents a possible alternative to resolv-

ing a dispute in lieu of litigation.

Unlike arbitration, mediation has no neutral third

party who declares a winner and a loser. Instead, the

third-party mediator attempts to resolve the dispute

by having the parties "talk it out." Even if the parties

go to court, many times the judge will order the par-

ties to mediate before hearing a dispute.

Because of the efficiency and popularity of the

procedure, local dispute resolution centers exist in

most cities and towns. If one does not exist, the local

Bar Association, the local Board of Realtors or even

the Chamber of Commerce may recommend names

of qualied mediators.

The service is not free but not expensive either.

Generally, costs are shared.

To implement mediation as a possible resolution

mechanism prior to litigation, the Texas Real Estate

Commission drafted a mediation addendum for real

estate sales contracts. One does not exist for residen-

tial lease forms.

However, the Real Estate Center adapted the

commission's sales addendum to lease contracts. It

is on the next page. Landlords and tenants may wish

to attach the addendum to future contracts.

117

AGREEMENT FOR MEDIATION

ADDENDUM TO LEASE CONTRACT CONCERNING THE PROPERTY AT

_______________________________________________________________________

(Name of Apartment, Street Address and City)

The parties to the Lease Contract who sign this addendum agree to negotiate in good faith

in an effort to resolve any dispute related to the Contract or to the breach of a statute gov-

erning the landlord-tenant relationship.

If the dispute cannot be resolved by negotiation, the parties to the dispute shall submit the

dispute to mediation before resorting to litigation.

This Agreement for Mediation will survive the contractual period.

If the need for mediation arises, the parties to the dispute shall choose a mutually ac-

ceptable mediator and shall share the cost of mediation services equally.

If the need for mediation arises, mediation services will be provided by a dispute

resolution center, and each party to the dispute agrees to bear the cost of the media-

tion services based on the Center's fee schedule. The applicant shall pay the applica-

tion fee unless otherwise agreed.

NOTE: Mediation is a voluntary dispute resolution process in which the parties to the

dispute meet with an impartial person, called a mediator, who would help to resolve the

dispute informally and conﬁdentially. Mediators facilitate the resolution of disputes but

cannot impose binding decisions. The parties to the dispute must agree before any settle-

ment is binding.

Date: ______________________________

___________________________________ ___________________________________

Tenant Landlord or Leasing Agent

___________________________________ ___________________________________

Tenant Landlord or Leasing Agent

(The Agent signing on behalf of the

Landlord acknowledges he or she has

the authority to bind the Landlord to this

Mediation Agreement.)

118

Glossary

Adjudged — a judicial determination of fact and

entry of judgment.

Affidavit — a written statement of fact conrmed by

oath (sworn to) before an officer or person (notary)

having authority to administer such oath.

Contempt of court — the failure to take an action

ordered by the court for another’s benet. The court

may punish the person found in contempt by ne or

imprisonment.

Doorknob lock — a lock in a doorknob, with the

lock operated from the exterior by a key and from

the interior without a key, card or combination.

Door viewer — a permanently installed device in an

exterior door that allows a person inside the dwelling

to view a person outside the door. The device must

be either (1) a clear glass pane or one-way mirror or

(2) a peephole having a barrel with a one-way lens of

glass or other substance providing an angle view of

not less than 160 degrees.

Dwelling — one or more rooms rented to one or

more tenants under a single lease for use as a perma-

nent residence.

Ex parte — an action granted by the court without

the opposing party receiving notice or having an op-

portunity to contest.

Exterior door — a door providing access from a

dwelling interior to the exterior. The term includes

a door between a living area and a garage but not a

sliding glass door or a screen door.

Forcible detainer — an action brought by a landlord

to retake possession from a tenant of the leased

premises when they are being wrongfully detained

(occupied). (This phrase is dened further by Section

24.002[a] of the Texas Property Code.)

Forcible entry — an entry without consent or an

unauthorized entry onto the land of another. (See

Section 24.001[b] of the Texas Property Code for

more details.)

Forcible entry and detainer — an action arising when

a third party’s entry onto the premises is unlawful. It

is brought by the person whose possession has been

disturbed and who wishes to retake possession. (The

phrase is dened further by Section 24.001[a] of the

Texas Property Code.)

French doors — a set of two exterior doors in which

each door is hinged and abuts the other door when

closed. The term includes double-hinged patio doors.

Holdover tenancy — an estate (tenancy) that is

created when the tenant retains possession of the

premises after the lease has terminated. The landlord

has the option of treating the tenancy as one at suf-

ferance or as a renewal of the original lease.

Justice — justice of the peace in the context of this

publication.

Justice court — the court of the justice of the peace

(J. P. Court) in the context of this publication.

Keyed dead bolt — a door lock not in the doorknob

that locks with a bolt into the doorjamb and is oper-

ated from the exterior by a key, card or combination

and from the interior by a knob or lever without a

key, card or combination. The term also means a

doorknob lock that contains a bolt with at least a

1-inch throw.

Keyless bolting device — (A) a door lock not in the

doorknob that locks with a bolt into a strike plate

screwed into the doorjamb surface that faces the

edge of the closed door or into a metal doorjamb that

serves as the strike plate, operable only by knob or

lever from the door’s interior and not in any manner

from the door’s exterior (commonly referred to as a

keyless dead bolt.)

The term keyless bolting device includes (B) a

door lock not in the doorknob that locks by a drop

bolt system. It is operated by placing a central metal

plate over a metal doorjamb restraint that protrudes

from and is affixed to the doorjamb frame by three

case-hardened screws at least 3 inches long. One half

of the central plate must overlap the interior sur-

face of the door, and the other half must overlap the

doorjamb when the plate is placed over the doorjamb

restraint. The drop bolt system must prevent the

door from being opened unless the central plate is

lifted off of the doorjamb restraint by a person who is

on the door’s interior.

The term keyless bolting device also includes (C)

a door lock not in a doorknob that locks by a metal

bar or metal tube placed across the entire interior of

the door and secured at each end of the bar or tube

by heavy-duty metal screw hooks. The screw hooks

must be at least 3 inches long and screwed into the

door frame stud or wall stud on each side of the door.

The bar or tube must be secured to both of the screw

hooks and permanently attached in some way to the

119

door frame stud or wall stud. When secured to the

screw hooks, the bar or tube must prevent the door

from being opened unless the bar or tube is removed

by a person on the interior of the door.

The term keyless bolting device does not include

a chain latch, ip latch, surface-mounted slide bolt,

mortise door bolt, surface-mounted barrel bolt,

surface-mounted swing bar door guard, spring-loaded

nightlatch, foot bolt or other lock or latch.

Landlord — the owner, lessor or sublessor of a dwell-

ing but does not include a manager or agent of the

landlord unless the manager or agent purports to be

the owner, lessor or sublessor in an oral or written

lease.

For purposes of Subchapter D entitled “Security

Devices,” the term landlord means a dwelling

owner, lessor, sublessor, management company or

managing agent, including an on-site manager.

Lease — any written or oral agreement between a

landlord and tenant that establishes or modies the

terms, conditions, rules or other provisions regarding

the use and occupancy of a dwelling.

Multiunit complex — two or more dwellings in one

or more buildings that are under common owner-

ship; managed by the same owner, agent or manage-

ment company; and located on the same lot or tract

or adjacent lots or tracts of land.

Normal wear and tear — deterioration that results

from the intended use of a dwelling, including, for

the purposes of Subchapter B and D, breakage or

malfunction resulting from age or deteriorated condi-

tion. However, the term does not include deteriora-

tion resulting from negligence, carelessness, accident

or abuse of the premises, equipment, or movable

personal property caused by the tenant, by a member

of the tenant’s household, a guest or invitee of the

tenant.

Possession of a dwelling — occupancy by a tenant

under a lease, including occupancy until the time

the tenant moves out or a writ of possession is

issued by a court. The term does not include occu-

pancy before the initial occupancy date authorized

under a lease.

Premises — a tenant’s rental unit, any area or facility

the lease authorizes the tenant to use and the appur-

tenances (improvements), grounds and facilities held

out for the use of tenants generally.

Rekey — to change or alter a security device that

is operated by a key, card or combination so that a

different key, card or combination is necessary to

operate the security device.

Security device — a doorknob lock, door viewer,

keyed dead bolt, keyless bolting device, sliding door

handle latch, sliding door pin lock, sliding door

security bar or window latch in a dwelling.

Sliding door handle latch — a latch or lock located

near the handle on a sliding glass door that is oper-

ated with or without a key and designed to prevent

the door from being opened.

Sliding door pin lock — a lock on a sliding glass door

that consists of a pin or nail inserted from the inte-

rior side of the door at the side opposite the door’s

handle and that is designed to prevent the door from

being opened or lifted.

Sliding door security bar — a bar or rod that can be

placed at the bottom of or across the interior side

of the xed panel of a sliding glass door and that is

designed to prevent the door from being opened.

Supersedes — to obliterate, annul, set aside, replace

or make void.

Tenancy at sufferance — an estate (tenancy) that is

created when the tenant lawfully comes into pos-

session of the premises but continues to occupy the

premises improperly after the lease expires.

Tenancy at will — an estate (tenancy) that gives the

tenant the right to possess the premises until the

estate (tenancy) is terminated by either party; the

length of the estate (lease term) is indenite.

Tenant — a person authorized by a lease to occupy

a dwelling to the exclusion of others and, for the

purposes of Subchapters D (security devices), E (dis-

closure of ownership and management) and F (smoke

detectors), obligated under the lease to pay rent.

Tenant turnover date — the date a new tenant

moves into a dwelling under a lease after all previous

tenants have moved out. The term does not include

dates of entry or occupation not authorized by the

landlord.

Window latch — a device on a window that prevents

the window from being opened; it is operated with-

out a key only from the interior.

Writ of reentry — a judicial order directing the ten-

ant to retake or recover possession of a rental unit.

Writ of possession — a judicial order directing the

landlord to retake or recover possession of a rental

unit.

120

Addendum, March 2019

The Landlords and Tenants Guide is in the pro-

cess of being updated and rewritten.

The following are changes and clarications to the

publication, which was last revised September 2016.

This list is not exhaustive.

Numerous changes and amendments are being

considered in the 86th Legislature.

Page 3-4: If the tenant chooses the repair-and-deduct

option, the notice required under Section

92.0561 is notice that the tenant intends to

repair or remedy the condition. A notice given

under Section 92.056(b)(1) or 92.056(b)(3) will

suffice only if it is in writing and states that

the tenant intends to repair or remedy the con-

dition. A notice under Section 92.056(b), which

simply requests repair or remedy by the land-

lord, is not sufficient for the tenant to exercise

his repair-and-deduct remedies under Section

92.0561, although it is still sufficient to trigger

the landlord’s duty to make a diligent effort to

repair within a reasonable time.

Page 4: Section 92.0561(f) requires that repairs be

made by a company, contractor, or repair person

listed in the Yellow Pages® or the business

section of the phone book or in the classied

advertising section of a local newspaper. The

statute was last amended in 1998 and does not

provide for other non-print alternatives such

as online publications. There is no guidance

as to whether online Yellow Pages® listings or

online classied advertisements are sufficient.

Page 5: In the section entitled “How does change

of landlords affect remedies?” the guide states

“Exactly how a new landlord can violate Sec-

tion 92.0562 is unclear.” Based on a rereading

of Section 92.0562, a new landlord can violate

this section by failing to exercise due diligence

to complete the repair after the tenant has

complied. If the tenant has opted to terminate

the lease, the intervening change of ownership

has no effect, and new notices are not required.

If the tenant has chosen to repair-and-deduct

for sewage backup, inside ooding, or cutoff

of potable water, new notices are not required.

Otherwise, new notices that the tenant intends

to repair or remedy the condition must be

given if (1) the tenant has not contracted for the

repairs, (2) the landlord acquired title without

knowledge of the tenant’s notices to the prior

landlord, and (3) the acquiring landlord has

notied the tenant of the new landlord’s name

and address or an agent’s name and address. In

this situation, the new landlord must exercise

due diligence to complete the repair within a

reasonable amount of time to avoid liability

under Section 92.0562.

Page 5-6: Section 92.058 provides landlord remedies

for tenant retaliation. Under the stated circum-

stances, the landlord may recover attorney fees

in addition to the civil penalty. However, be

aware that Section 92.058 provides for an award

of attorney fees to the prevailing party, not just

for the landlord.

Page 7: Under “What lease provisions are impor-

tant,” the fth bullet point states, “The land-

lord and tenant may agree that the tenant, the

tenant’s immediate family, the tenant’s em-

ployer, or employee of a company in which the

tenant owns an interest can make the repairs

under the repair-and-deduct option.” On reread-

ing, it is unclear whether subsection (g) allows

this agreement to include the tenant’s immedi-

ate family, the tenant’s employer, or employee

of a company in which the tenant owns an

interest.

Page 9: Subchapter H contains Sections 92.331

through 92.335.

Page 11: Subchapter C governs security deposits

(Section 92.101 through 92.109).

Page 11: Under “Must the security deposit be mailed

by the landlord or received by the tenant within

30 days after surrender of the premises”: Ac-

cording to Section 92.1041, the landlord is

presumed to have refunded a security deposit

or made an accounting of security deposit

deductions if it is postmarked on or before the

required date.

Page 13: Under “May a landlord wrongfully with-

hold a security deposit:” In Reed v. Ford, the

court held that the term bad faith meant “. .

. a dishonest disregard of tenant’s rights; bad

faith requires intent to deprive tenant of refund

known to be lawfully due.”

Page 15: The Rental Application statutes are found

in Subchapter I.

Page 17: Subchapter F includes Sections 92.251

through 92.264.

Page 17: A local ordinance may not require the in-

stallation of an alternating current (AC) smoke

121

alarm when a battery-powered alarm was in-

stalled before September 1, 1987, unless:

(1) the interior of the unit is repaired, re-

modeled, or rebuilt at a projected cost of

more than $5,000 and:

(A) the repair, remodeling, or rebuilding

requires a municipal building permit;

and

(B) either:

(i) the repair, remodeling, or rebuild-

ing results in the removal of

interior walls or ceiling nishes

exposing the structure; or

(ii) the interior of the unit provides

access for building wiring through

an attic, crawl space, or basement

without the removal of interior

walls or ceiling nishes;

(2) an addition occurs to the unit at a pro-

jected cost of more than $5,000;

(3) an AC smoke alarm was actually in-

stalled in the unit at any time prior to

September 1, 1987; or

(4) an AC smoke alarm was required by

lawful city ordinance at the time of

initial construction of the unit.

Page 18: First heading should read, “Where must

smoke alarms be located in dwelling units?”

Page 19: Under “Are there other ways to comply

with this subchapter relating to smoke alarms”:

Yes. A landlord may comply with the require-

ments of this subchapter if the landlord: (1) has

a re detection device, as dened by Section

6002.002 of the Insurance Code, that includes

a re alarm device installed in a dwelling unit,

or . . .

Page 22: Subchapter G consists of Sections 92.301

and 92.302.

Page 23: The “Third” issue referenced at the top

of the left column has been addressed by the

addition of Section 92.302, effective January 1,

2014.

Page 24: Unless a dangerous condition exists or the

tenant requests a disconnection, a landlord may

not interrupt or cause the interruption of elec-

tric service on a day the landlord or a represen-

tative is not available to collect the payment

and reestablish the electric service, or on the

day before such a day.

Page 24: The provision relating to energy assistance

providers is found in Section 92.008(m).

Page 25: References to Section 92.091 should be to

Section 92.0091.

Page 25: If the justice nds, after considering the evi-

dence at the hearing, that the person directly or

indirectly disobeyed the writ, the justice may

commit the person to jail without bail until the

person purges the contempt action or omission

in a manner and form directed by the justice.

Page 27: The emergencies referred to in the sec-

tion regarding “Providing Emergency Phone

Number” are those emergencies related to a

condition of the leased premises that materi-

ally affects the physical health or safety of an

ordinary tenant.

Page 34: Negligence in leasing: The landlord . . . could

be liable for negligence in leasing a dwelling if

the tenant (1) was convicted of an offense listed

in Article 42A.054 of the Code of Criminal

Procedure and (2) has a reportable conviction

or adjudication as dened by Article 62.001

of the Code of Criminal Procedure; and (3) the

landlord . . . knew or should have known of the

conviction or adjudication.

Page 35: By the same token, the customer in whose

name the utilities are billed must provide the

same notice to the governing body of the mu-

nicipality (if the property is located in a mu-

nicipality).

Page 36: Under “What is the rule when the property

owner does not live in Texas,” the citation

should read: (Section 250.004 of the Local Gov-

ernment Code).

Page 36: On landlord’s seeking of reimbursement for

nes: Citation should be Section 92.018.

Page 38: When the leased premises are not the ten-

ant’s primary residence and tenant noties of

primary residence, landlord must send notices

or lease violations, rather than deductions, to

that address.

Page 42: The ling fee in the justice court is now

$25. Fees for the writ are usually in the $40-$50

range. Fees for service usually start at about

$35.

Page 46: The limits on the amounts landlords may

charge for repairing, installing, changing, or

rekeying a security device are found in Section

92.162 (d).

Page 52: Some changes have been made to the deni-

tions of common nuisance and public nuisance.

Page 68: Section 24.011 has been amended to provide

for nonlawyer representation when an eviction

suit for nonpayment of rent is appealed to a

county or district court. Although parties are

able to represent themselves or be represented

by nonlawyer agents in eviction suits in jus-

tice court, ordinarily a business entity must

be represented in other courts by an attorney.

However, in this instance, an entity may be

122

represented by a nonlawyer agent. Likewise, an

individual owner of a multifamily residential

property may be represented by a nonlawyer

agent.

Page 72: The statutes mentioned here have been

codied in the Texas Utilities Code, Title 2.

Page 106: Effective September 1, 2017, and regardless

of any contrary provision in a lease, a tenant’s

right of possession terminates and the landlord

has a right to recover possession of the leased

premises if the tenant is using the premises or

allowing the premises to be used for the purpos-

es of prostitution, promotion of prostitution,

aggravated promotion of prostitution, or com-

pelling prostitution, as prohibited by the Penal

Code; or trafficking of persons as described by

Section 20A.02, Penal Code.

A landlord who reasonably believes a ten-

ant is doing so may le a forcible detainer suit

seeking possession and unpaid rent, including

rent for the rest of the lease term. The landlord

is not required to give notice of termination or

eviction prior to giving notice to vacate, and

is not required to give more than three days’

notice to vacate before ling suit.

A pending suit brought by the attorney

general or a district, county, or city attorney

under Chapter 125, Civil Practice and Rem-

edies Code, alleging that a common nuisance is

being maintained on the leased premises with

respect to the described activities is prima facie

evidence that the tenant’s right of possession

has terminated and the landlord has a right to

recover possession of the premises.

A nal, nonappealable determination by a

court under Chapter 125, Civil Practice and

Remedies Code, that a common nuisance is

being maintained on the leased premises with

respect to such an activity creates an irrebut-

table presumption that the tenant’s right of

possession has terminated and the landlord has

a right to recover possession of the premises.

These provisions were added by Section

93.013, Property Code.

Page 107: The denitions in 13.501 have changed:

“Condominium manager” or “manager of a con-

dominium” means a condominium unit owners’

association organized under Section 82.101, Property

Code, or an incorporated or unincorporated entity

comprising the council of owners under Chapter 81,

Property Code.

“Owner” means the legal titleholder of an apart-

ment house, manufactured home rental community,

or multiple-use facility and any individual, rm, or

corporationexpressly identied in a lease agreement

asthe landlord of tenants in the apartment house,

manufactured home rental community, or multiple-

use facility.The term does not include the manager

of an apartment home unless the manager is express-

ly identied as the landlord in the lease agreement.

“Utility costs” or “utility service costs” means any

amount charged to the owner by a retail public util-

ity for water or wastewater service.

Page 108: Neither Section 13.503 nor 13.5031 limits

the authority of an owner, operator, or manager

of an apartment house, manufactured home

rental community, or multiple-use facility to

charge, bill for, or collect rent; an assessment;

an administrative fee; a fee relating to the

upkeep or management of chilled water, boiler,

heating, ventilation, air conditioning, or other

building system; or any other amount that is

unrelated to utility costs.

Page 109-110: Effective June 1, 2017, if there is a vio-

lation, the person claiming the violation may

le a complaint with the utility commission. If

a violation is determined by the commission,

the owner or condominium manager will be

required to repay the complaining tenant the

amount overcharged. Nothing in Section 13.505

limits or impairs the utility commission’s en-

forcement authority under Subchapter L. It may

assess an administrative penalty under Section

13.4151 as well. The good faith exception was

removed effective June 1, 2017.

Page 114: Effective September 1, 2017, sales may

be conducted through a publicly accessible

website. Posting requirements also allow for

Internet posting. Sections 59.044, 59.0445, and

59.045.

319-50-866

124

ADVISORY COMMITTEE

MAYS BUSINESS SCHOOL

Texas A&M University

2115 TAMU

College Station, TX 77843-2115

www.recenter.tamu.edu

979-845-2031

DIRECTOR

GARY W. MALER

MARIO A. ARRIAGA

Conroe

JACQUELYN K. HAWKINS

Austin

TED NELSON

Houston

DOUG ROBERTS

Austin

RUSSELL CAIN, CHAIRMAN

Port Lavaca

DOUG JENNINGS, VICE CHAIRMAN

Fort Worth

KIMBERLY SHAMBLEY

Dallas

RONALD C. WAKEFIELD

San Antonio

C. CLARK WELDER

San Antonio

BILL JONES, EX-OFFICIO

Temple