2020 has been a financially trying year for many, with pandemic-related shutdowns and millions without work. Many residential tenants have been unable to keep up with their rent, and while residential tenants were granted leniency at the federal level, landlords have been on their own with respect to navigating requirements relating to enforcing their rights.
For those residential landlords who rely on rent as an essential part of their income, many are worried if and when they will be able to collect unpaid rent – or evict delinquent tenants so they can find a new paying tenant. In this article, we will discuss the options Texas landlords have when tenants don’t pay, and how eviction moratoriums are playing out across the state.
If you’re a landlord and have questions about your obligations to your tenants, the attorneys in our real estate practice might be able to help. Feel free to contact us for more information.
Before we dive into what you can do as a residential landlord, it’s worth reviewing what you cannot do (if you want to steer clear of legal trouble).
What Rights Do Texas Renters Have?
Tenants have rights in every state and Texas is no different. One of the worst things you can do as a landlord is break the law: not only could you wind up missing out on rent you’re owed, but you could wind up in court yourself.
According to Texas law, residential tenants have the following legal rights:
- Quiet Enjoyment. This is a legal term of art that means a tenant cannot be evicted without cause. They also have the right to live in peace and quiet without unnecessary disruption. Texas code also stipulates that landlords may not interrupt a tenant’s utilities unless it is for bona fide repairs, construction, or an emergency.
- Health & Safety. A landlord must repair any condition that materially affects a tenant’s health or safety, unless the need for repair was caused by the tenant. Texas requires that all landlords provide smoke detectors and tenants are not allowed to waive this requirement, nor may a tenant disconnect or disable smoke detectors.
- Basic Security. All rented dwellings must have basic security features like keyed dead bolts on exterior doors, window latches on exterior windows, pin locks and handle latches for all exterior sliding glass doors, and a keyless bolting device and door viewer on the interior side of exterior doors.
- No Retaliation. It is illegal for a landlord to retaliate against a tenant for making a bona fide complaint about necessary repairs for six months after the complaint is made. This does not restrict a landlord’s right to evict for failure to pay rent timely.
- Security Deposits. A landlord cannot refuse to return a security deposit (within 30 days after tenant vacates the premises) without a valid reason.
What Rights Do Texas Residential Landlords Have?
Residential tenants aren’t the only ones with legal rights. Residential landlords maintain certain rights over their leased properties, and probably most importantly, the right to be paid rent in accordance with their lease. Since this article is focused on what landlords can do if a tenant can’t pay, we’ll cover the primary option available in those cases: eviction.
Eviction
Residential evictions are a relatively complex process to navigate without an experienced attorney. Texas law requires that landlords first provide a tenant with a Notice to Vacate, which puts the tenant on notice that they have breached the lease. A Notice to Vacate must be in writing and give the tenant at least 3 days to vacate unless the lease provides a longer period (the lease may also require that notice of default and time to cure be given prior to the delivery of a Notice to Vacate). The Notice should include the date by which the tenant must leave and can be delivered personally, by mail, or by attaching it to the interior of the front door of the leased premises (or the exterior of the front door in certain circumstances).
If the tenant does not vacate by the date listed in the Notice to Vacate, landlords have the right to file an eviction suit in the precinct where the property is located. A hearing date will be set somewhere between 10-21 days after the suit is filed. It is important to note that landlords cannot remove the tenant or their property until the eviction process is complete (or the tenant abandons the property).
[Note: Landlord’s liens are rarely used in residential leases because most of the tenant’s property is exempt]
The Impact of COVID-19 on Collecting Rent
With the COVID-19 pandemic causing closures nationwide, many have lost their jobs or experienced pay cuts. Naturally, this means many tenants have been unable to pay their rent. The Texas Supreme Court stepped in with a moratorium on evictions, preventing landlords from evicting tenants who couldn’t pay until May 26, 2020. Renters in homes subject to federally backed mortgages were protected from evictions under the CARES Act through July 24 by prohibiting landlords from serving eviction notices.
Since the statewide moratorium has expired, some local officials attempted to extend the moratorium. However, the Texas Attorney General Ken Paxton issued his opinion that “government code does not authorize local government…to independently rewrite state law…to prohibit, delay, or restrict issuance of a notice to vacate.”
In Dallas county, some justices of the peace have refused to hear evictions, but the Attorney General’s opinion may change that.
On January 20, 2021, in one of his first executive orders as the President of the United States, President Biden extended the nationwide moratorium on residential evictions until the end of March 2021. However, it is unclear whether this moratorium will be, in practice, merely aspirational, or whether the Center for Disease Control, which is the government body given the right to enforce it, will actually do so.
It is important to note that landlords can still provide delinquent tenants with a Notice to Vacate, even if local courts aren’t hearing eviction cases. Likewise, none of the moratoria enacted so far impede a landlord’s right to assess late fees and request back rent once the orders are lifted.
In a nutshell, the moratoria enacted so far only bought tenants time, and nothing else.
Tips & Best Practices for Residential Landlords
Whether you are faced with a delinquent tenant, or simply want to protect yourself against unpaid rent in the future, there are some guidelines we can offer. We recommend landlords protect themselves, at a minimum, by taking the following tips into consideration:
- Have a written lease agreement;
- Try to keep communication about late rent in writing;
- Provide proper notice of default and Notice to Vacate before moving forward with an eviction;
- In the Notice to Vacate, clearly state the reason for eviction;
- Check your local jurisdiction’s website for extensions of eviction moratoria;
- Consult with an experienced landlord/tenant lawyer to ensure your lease offers maximum protection against nonpayment.
For more information, contact the experienced attorneys at Brousseau, Naftis & Massingill. We represent some of the most prominent real estate professionals in the Dallas area – including residential and commercial landlords. Our firm provides a cost-effective approach during negotiations to help landlords avoid costly litigation whenever possible.
