LANDLORDS _AND TENANTS G U I D E SPECIAL REPORT No_ 866 REVISED SEPTEMBER 2016 Addendum with updates added March 2019 JUDON FAMBROUGH E .V. “RUSTY” ADAMS III ATTORNEYS AT LAW Landlords and Tenants Guide Judon Fambrough Attorney at Law Addendum by E.V. "Rusty" Adams III Attorney at Law 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 Portions may now be out of date because of changes in laws, rules, market conditions, or other factors.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. Revised September 2016 © 2019, Real Estate Center. All rights reserved. Contents iii Foreword 1 Residential Landlord's Duty to Repair 9 Retaliation 11 Residential Landlord's Duty to Return Security Deposits 15 Rental Application Residential Landlord's Duty to Install, Inspect, and Repair Smoke Alarms 17 and Fire Extinguishers 22 Residential Landlord's Liability for Utility Cutoffs and Interruptions 27 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 Certificate of Occupancy Revoked Notice of Utility Disconnection to Nonsubmetered Master Metered Multifamily Property 36 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 40 Removal of Property and Lockouts 43 Residential Landlord's Duty to Install and Maintain Security Devices 50 Residential Landlord's Duty to Disclose Ownership and Management of Rental Unit 52 Public Nuisances at Multiunit Residential Property i Contents 54 Common Nuisances Occurring at Multiunit Residential Property 56 Residential Landlord's Lien 58 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 69 Covenant for Quiet Enjoyment and Constructive Eviction 71 Residential Rental Locators 72 Telecommunications 74 Swimming Pool Enclosures 76 Pool Yard Enclosures with Relevant Definitions 83 Ascertaining the Criminal History of Employees of Residential Dwelling Projects with Relevant Definitions 86 Towing Vehicles from Parking Lots and Public Roadways 91 Rules for Towing Vehicles from Multiunit Complexes' Parking Lots with Relevant Definitions 94 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 100 Commercial Tenancies 107 Submetering Commercial Property 112 Landlord’s Lien on Commercial Buildings 113 Self-Service Storage Facility Liens 116 Mediation with Sample Agreement 118 Glossary 120 Addendum This report is for information only; it is not a substitute for legal counsel. ii Foreword Income-producing property plays a major role in and verify the criminal history of current and pro- Texas real estate. Central to much of this property is spective employees. the landlord-tenant relationship. Significant legisla- In 1995, new laws were added concerning the tive changes have been made in recent years. licensing of residential rental locators, the abate- One basic rule of English common law was that ment of nuisances at multiunit residential property, a tenant’s duty to pay rent was independent of the the installation of telecommunications equipment landlord’s duty to repair without an agreement or on rental property and required educational courses statute to the contrary. The lease was regarded as a dealing with landlord-tenant issues. In 1997, the conveyance in land, subject to the doctrine of caveat 75th Legislature required landlords to mitigate emptor (“let the buyer beware”). The landlord was damages when a tenant moves out early. Also, the required to deliver only the right of possession. The legislators raised the maximum amount for the tenant, in return, was required to pay rent as long repair-and-deduct statutes to $500 or one month's as possession was retained, even if the building was rent, whichever is greater. destroyed or became uninhabitable. This report discusses the various subchapters of Texas courts and legislators have attempted to the Texas Property Code, the Texas Local Govern- soften the harshness of this rule. The first major ment Code, the Texas Health and Safety Code, the relief came in 1978, when the Texas Supreme Court Texas Human Resources Code, the Texas Govern- established an implied warranty of habitability on ment Code, the Texas Civil Practices and Remedies residential landlords (Kamarath v. Bennett, 568 S.W. Code and also Articles 6701g-2 and 6573(a) of the 2d 658 [Tex. 1978]). Texas Civil Statutes as amended, as each applies to In 1979, Texas legislation effectively extinguished residential and commercial tenancies. the implied warranty by enacting Subchapter B of Because of the number of recent amendments, Section 92 of the Texas Property Code. As stated in many sections lack case law to construe and clarify that subchapter, the law replaced existing common meaning and application. This is particularly true of law (case law) and other statutory law, warranties laws dealing with security devices, pool yard en- and duties of residential landlords for maintenance closures and towing vehicles. To make the statutes and repair of rental units. more understandable, the language has been changed More changes were enacted in 1993. Most signifi- to lay terms when possible. cant was the replacement of subchapter D with new Landlords and tenants alike should be aware of provisions requiring the installation of certain secu- the current statutes. For landlords, the awareness is rity devices in residential units. The failure of the critical; knowledge helps avoid liability. Tenants, on landlord to comply allows the tenant to unilaterally the other hand, need to know the law so they can terminate the lease. Also, another new law permits preserve, protect and claim their rights and remedies. employers in multiunit complexes to inquire about iii Residential Landlord’s Duty to Repair or Close Leasehold Subchapter B, Chapter 92, Texas Property Code Subchapter B is significant to residential landlords How do tenants know who to contact for and tenants. Under the former implied warranty of repairs? habitability, the landlord was obligated to make the premises habitable throughout the lease term. The Landlords who have on-site management or a duty arose automatically without the tenant taking superintendent’s office for residential rental prop- any initiative. However, under the present legislative erty must provide a 24-hour telephone number for standard, the tenant must inform the landlord of a reporting emergencies on the leased premises that problem before the repair obligation arises. materially affect the physical health or safety of an Each section of Subchapter B is discussed in the ordinary tenant. The number must be posted outside order that it appears in the statutes, beginning with the management or superintendent’s office (Sections Section 92.051 and ending with Section 92.061. The 92.020[a]&[b]). focus is primarily on what the landlord must repair, What about landlords in other situations? what the tenant must do to invoke the landlord’s duty to repair and what the tenant’s options are if Landlords who do not have on-site management the landlord fails to repair. or a superintendent’s office must provide tenants The statutes addressing landlord retaliation, Sec- a telephone number for reporting emergencies on tions 92.057 and 92.059, have been moved to Sub- the leased premises that materially affect the physi- chapter H, Sections 92.331 through 92.334, effective cal health or safety of an ordinary tenant (Section January 1, 1996. 92.020[d]. The manner by which the information must be provided is not specified in the statute. Which leases are affected? Are there any exceptions to the rules? The subchapter affects all residential leases execut- ed, entered, renewed or extended on or after Septem- Yes. The rules do not apply to or affect a local ordi- ber 1, 1979 (Section 92.051). Obviously, amendments nance governing a landlord’s obligation to provide a added after 1979 became effective as specified by the 24-hour emergency contact number if the ordinance enabling legislation. was adopted before Jan. 1, 2008, and if it conforms with or is amended to conform with the require-