Recent Developments In Texas Landlord Tenant Law
June, 2007 Edition Of The Texas Landlord Tenant Law UpdateMarc A. Rapaport, Esq. The Rapaport Law Firm June 6, 2007
In this issue of the Texas Landlord Tenant Update, we will examine the types of actions undertaken by landlords that have led Texas courts to award monetary damages to tenants for unlawful eviction and unauthorized seizure of property. Such cases typically involve landlords who have changed locks or removed tenants' property notwithstanding the tenants' compliance with their monetary obligations under the applicable lease.
The case of Charette v. Fitzgerald, 213. S.W.3d 505 (Tex. App. [1st] 2006), is instructive. In Charette, the Court of Appeals of Texas (First District, Houston) upheld a trial court's award of damages to residential tenants who claimed that their property was wrongfully seized and that they were wrongfully evicted by their landlords. The trial court found that the tenants had been wrongfully evicted by their landlords in violation of section 92.0081 of the Texas Property Code. The trial court awarded the tenants both statutory penalties and attorney's fees.
In Charette, the landlords appealed the trial court's decision, contending that (1) the trial court erred in finding the Texas Property Code violation because the tenants abandoned the property and breached the lease agreement; and (2) the evidence introduced by the tenants was legally and factually insufficient to support the attorney's fees award. The Court of Appeals sustained the trial court's damages award except for that portion which related to attorneys fees. With respect to attorney's fees, the Court of Appeals held that the tenants had failed to prove the reasonableness of the fees that they had requested.
Although the essential facts of the Charette case are straightforward, the landlords' actions reflect a remarkable degree of insolence and callousness. On June 24, 2004, the Fitzgeralds (the tenants) timely paid their last month's rent to the Charettes (the landlords) to cover the amount owing through the end of the lease term (July 30, 2004). Previously, the Fitzgeralds had sent a notice of termination to the Charettes, advising that they were terminating the lease agreement and that they would be vacating the premises at the end of July, 2004. The Fitzgeralds were also exceedingly accommodating by voluntarily boarding their pets and moving personal items to assist the Charettes in their efforts to show the apartment to prospective new tenants. Despite the Fitzgeralds' payment of rent owed through the end of July, 2004, the Charettes changed the locks on the doors to the apartment while the Fitzgeralds were on vacation in mid-July, 2004.
Not surprisingly, the District Court denied the Charettes' assertion that the Fitzgeralds abandoned their apartment. The lessons of the Charette decision are clear: a landlord must strictly adhere to the plain language of the $ 92.0081, Tex. Prop. Code. When a landlord changes the locks to a premises for reasons other than those set forth in that statute, the landlord risks the imposition of monetary damages such as those which were awarded to the Fitzgeralds.
In fact, most reported decisions in Texas that discuss tenants' actions for wrongful eviction and/or wrongful seizure of property are in favor of landlords. When a landlord complies with $ 92.0081 by posting the required 24-hour notice and acting only when the tenant is actually delinquent in paying the rent, the landlord faces minimal risk. The courts have not hesitated to dismiss tenants' wrongful eviction claims in such situations, as evidenced by the Court of Appeals' decision in Mojtahedi v. BHV Realty, 14-05-01101-CV (Tex.App. [14th Dist.] 3-15-2007), which upheld the District Court's dismissal of the tenant's claims:
- The uncontroverted proof shows BHV followed all legal procedures necessary to secure possession of the Premises upon Mojtahedi's failure to pay part or all of his rent in February and March 2001. Mojtahedi had access to the Premises with his own key until April 18, 2001. In executing the writ of possession, Deputy Cerna posted a twenty-four hour notice to vacate the Premises on the door of the Premises on April 17, 2001. See TEX. PROP. CODE ANN. ' 24.0061(d) (Vernon Supp. 2005). Mojtahedi was present during the removal of his personal belongings and has not established (through controverting proof) that he desired to re-enter the premises or take any of his belongings with him.
Selected Provisions of the Texas Statutes that are Relevant to this Article: $ 92.0081 PROP. Removal of Property and Exclusion of Residential Tenant
- 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 premises leased to a tenant or remove furniture, fixtures, or appliances furnished by the landlord from premises leased to a tenant unless the landlord removes the item for a bona fide repair or replacement. If a landlord removes any of the items listed in this subsection for a bona fide repair or replacement, the repair or replacement must be promptly performed.
- A landlord may not intentionally prevent a tenant from entering the leased premises except by judicial process unless the exclusion results from:
- bona fide repairs, construction, or an emergency;
- removing the contents of premises abandoned by a tenant; or
- changing the door locks of a tenant who is delinquent in paying at least part of the rent.
- If a landlord or a landlord's agent changes the door lock of a tenant who is delinquent in paying rent, the landlord or the landlord's agent must place a written notice on the tenant's front door stating:
- an on-site location where the tenant may go 24 hours a day to obtain the new key or a telephone number that is answered 24 hours a day that the tenant may call to have a key delivered within two hours after calling the number;
- the fact 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.
- A landlord may not intentionally prevent a tenant from entering the leased premises under Subsection (b)(3) unless:
- the tenant is delinquent in paying all or part of the rent; and
- the landlord has locally mailed not later than the fifth calendar day before the date on which the door locks are changed or hand-delivered to the tenant or posted 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 that the landlord proposes to change the door locks;
- the amount of rent the tenant must pay to prevent changing of the door locks; and
- the name and street address of the individual to whom, or the location of the on-site management office at which, the delinquent rent may be paid during the landlord's normal business hours.
- A landlord may not change the locks on the door of a tenant's dwelling under Subsection (b)(3) on a day, or on a day immediately before a day, on which the landlord or other designated individual is not available, or on which any on-site management office is not open, for the tenant to tender the delinquent rent.
- A landlord who intentionally prevents a tenant from entering the tenant's dwelling under Subsection (b)(3) must provide the tenant with a key to the changed lock on the dwelling without regard to whether the tenant pays the delinquent rent.
- If a landlord arrives at the dwelling in a timely manner in response to a tenant's telephone call to the number contained in the notice as described by Subsection(c)
- and the tenant is not present to receive the key to the changed lock, the landlord shall leave a notice on the front door of the dwelling stating the time the landlord arrived with the key and the street address to which the tenant may go to obtain the key during the landlord's normal office hours.
- If a landlord violates this section, 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.
- If a landlord violates Subsection(f), the tenant may recover, in addition to the remedies provided by Subsection(h), an additional civil penalty of one month's rent.
- 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.
Acts 1983, 68th Leg., p. 3632, ch. 576, $ 1, eff. Jan. 1, 1984. Amended by Acts 1985, 69th Leg., ch. 200, $ 4, eff. Aug. 26, 1985. Renumbered from V.T.C.A., Property Code $ 91.002 by Acts 1987, 70th Leg., ch. 683, $ 2, eff. Aug. 31, 1987. Amended as $ 91.002 by Acts 1987, 70th Leg., ch. 826, $ 1, eff. Aug. 31, 1987. Renumbered from V.T.C.A., Property Code $ 91.002 and amended by Acts 1989, 71st Leg., ch. 689, $ 1, 3, eff. Sept. 1, 1989. Redesignated from V.T.C.A., Property Code $92.008(b) to (f) and amended by Acts 1995, 74th Leg., ch. 869, $ 1, eff. Jan. 1, 1996; Acts 1995, 74th Leg., ch. 952, $ 1, eff. Sept. 1, 1995.
THIS ARTICLE, AND THE INFORMATION CONTAINED HEREIN, IS NOT LEGAL ADVICE, AND IS PROVIDED SOLELY FOR GENERAL INFORMATIONAL PURPOSES. THE LAW IS SUBJECT TO CHANGE. IF YOU HAVE QUESTIONS, YOU SHOULD CONSULT WITH AN EXPERIENCED LANDLORD TENANT ATTORNEY LICENSED TO PRACTICE LAW IN TEXAS.