Every state differs in their own unique way with interpretation of Landlord/ Tenant law. Texas is no different. We have comprised this section of Underground landlord to educate and give you a resource for questions or concerns for Texas landlord tenant laws. Straight from the general assembly to you verbatim.
Application Fees and Deposits
Proper preparation and planning is important before applying for a rental unit. Because application fees and deposits are often not refundable, tenants should be certain that they want to live in a unit before applying for it or putting any money down. The laws regarding applications can be found in Chapter 92, Subchapter I of the Texas Property Code.
Landlord/ Tenant Myths in Texas!
Myth: A landlord or manager must return a deposit to hold an apartment if the tenant decides not to take it
Truth: Many application agreements allow the landlord to keep the entire deposit if the tenant is approved and then the tenant decides not to sign the lease. Even if there is no written agreement about the deposit, the landlord or manager may be entitled to reimbursement for expenses after taking the property off the market, including advertising and lost rent.
Myth: A tenant has three days after signing a lease to cancel it without penalty sometimes called “buyer’s remorse.”
Truth: Texas has no “buyer’s remorse” law for leases. A lease becomes binding as soon as it is signed.
Myth: A tenant can move out if the landlord fails to meet one or more obligations outlined in the lease.
Truth: Generally, the lease remains in force and the tenant continues to be liable under the terms of the lease agreement until a court rules otherwise.
Myth: There is a limitation on the amount the rent can be raised at the end of the lease.
Truth: Texas has no “rent control” laws that limit the amount of rent increases.
Myth: A signed lease is not valid until a deposit is paid or until the tenant moves into the property.
Truth: Even if the landlord never receives rent and the tenant never moves in, the tenant is liable under the lease once it is signed.
Application Fees and Procedures
When filling out an application for a rental unit, be sure that the following information is included on the application form:
How long the landlord has to refund the deposit if the application is rejected;
The unit number of the apartment you are seeking to lease;
The amount of the security deposit;
The move-in date and the length of the lease term;
The names of all people who will live in the unit including all children;
Whether pets are allowed and the amount of the pet deposit;
Whether the landlord pays for any utilities;
Written documentation of any oral promises by the manager or leasing agency such as “the agent will paint the unit prior to move-in” or “the carpet will be cleaned”; and
Any other information that will be used to fill out the lease.
Landlords usually request an application fee to compensate the landlord for checking credit reports and processing the application. Typically, application fees are $25 to $35 per person, but there is no limit on what a landlord can charge for an application fee. Application fees are usually nonrefundable (except as noted below).
Tenant Selection Criteria and Acknowledgment
At the time a prospective tenant is given a rental application, the landlord must also provide written notice of the tenant selection criteria and the grounds for which a rental application may be denied, including an applicant’s:
Previous rental history;
Credit history; or
Failure to provide accurate or complete information on the application form.
The landlord should ask the applicant to sign an acknowledgment indicating that notice of the tenant selection criteria was provided. The acknowledgment must include a statement such as “Signing this acknowledgment indicates that you have had the opportunity to review the landlord’s tenant selection criteria. The tenant selection criteria 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.”
The acknowledgment may be part of the rental application if the notice is underlined or in bold print. Any provision in the rental application that purports to waive a right or exempt a party from liability or duty of this notice is void.
What Remedies Does the Applicant Have?
If the landlord rejects an applicant without providing the tenant selection criteria, the landlord must return the application fee and any application deposit. The applicant should send the landlord a demand letter by certified mail. The letter should include an address of where to send the application fee and any application deposit and a statement that if the money is not returned within 10 days from the date the landlord receives the letter, the tenant will pursue legal remedies. If an applicant can show the landlord acted in bad faith, the landlord can be held liable for $100, three times the amount wrongfully retained, and reasonable attorney’s fees. See ATC’s brochure Filing Suit in Small Claims Court for more information.
An application deposit is often required, in addition to the application fee, at the time the application is processed. The deposit is paid by the prospective tenant as assurance to the landlord that the applicant will move into the unit if approved as a tenant.
Many application forms state that if a prospective tenant turns down the rental unit after submitting an application, the deposit will be forfeited. Typically, there is no grace period to back out of the application once it is signed. If the landlord states that a tenant can cancel the application and get the deposit back, it should be included in WRITING in the application agreement. Never pay an application deposit and sign an application unless you are absolutely sure that, if approved, you will move into the unit.
Security Deposits and Rent Prepayment
Even if an application agreement is not signed, the landlord may have grounds to keep some or all of a deposit based on losses the landlord suffered. If a tenant has entered into a lease with a landlord and paid a security deposit or prepaid rent and does not move into the unit, the tenant is entitled to a full refund only if the tenant finds a replacement tenant satisfactory to the landlord who moves in by the date the lease was to begin. However, if the landlord secures the replacement tenant, the landlord may deduct from the security deposit or rent prepayment, any amount agreed to in the lease as a lease cancellation fee. If there is no lease cancellation fee, then the landlord can deduct actual expenses incurred including an amount for the landlord’s time in finding a replacement tenant. Therefore, money should never be paid on a rental unit unless the tenant is certain that it is acceptable.
Time Period in Which Landlord Must Act on Applications
An applicant is deemed to have been rejected by the landlord if the landlord does not give notice of acceptance within seven days of receiving the application or application deposit if the landlord does not give the applicant an application form. A landlord may consider many criteria in determining an applicant’s eligibility. For example a landlord may look at a tenant’s credit record, rental history, and/or criminal record.
Rejection of Applicants
If two or more persons apply and the landlord rejects one of the co-applicants, then all co-applicants are considered rejected.
After an application is approved, the landlord is not required to refund the application deposit if the applicant decides not to move into the prospective rental unit.
A landlord is presumed to have given notice of acceptance or rejection of an applicant if the notice is by:
Telephoning one of the applicants or informing a person who resides with an applicant; or
Sending a notice in the mail to the address included on the application postmarked by the required date.
Note: The landlord may also give notice in person.
If the landlord rejects an application, any application deposit should be refunded promptly. However, some application forms, such as the Texas Apartment Association (TAA) application form, state that the landlord must refund the application deposit by the date stated in the application or WITHIN 30 DAYS if the date is left blank. DO NOT leave this date blank.
What Remedies Does the Applicant Have?
If an application deposit is not refunded after the application is rejected, a written demand for the refund of the deposit should be sent to the landlord. This letter should be sent by certified mail. If the landlord does not respond within 10 days after receiving the demand for reimbursement, a tenant can sue the landlord, including filing suit in small claims court. If a landlord in bad faith fails to refund an application deposit, the applicant can hold the landlord liable for the sum of $100, three times the amount of the application deposit, and the applicant’s reasonable attorney’s fees in a suit to recover the deposit.
The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.
Credit Rights in Texas
The credit reporting industry is complicated and can be difficult to understand. Many businesses, including the housing industry, use information found on credit reports. Landlords use credit information most often in the application process to decide whether to lease a property to a tenant. Landlords may report unpaid debts, such as if a tenant breaks a lease and leaves owing money, to credit bureaus. The landlord may also report money owed for property damages. It is legal for landlords to use credit information for these purposes, but there are laws governing credit reporting. This brochure attempts to explain the basics of credit reporting so that a tenant will know what rights are provided by the Fair Credit Reporting Act and other laws and how to enforce those rights.
Top 20 Texas Cities
Credit bureaus, also called credit reporting agencies, gather information about people’s credit history and then sell that information to many different businesses. The major credit bureaus are Equifax, Experian, and TransUnion. Credit information is used by banks, finance companies, insurance companies, employers, merchants, and, of course, landlords. Different businesses use credit information for different purposes. Banks, for instance, want to know if a person will repay a loan, while insurance companies use credit information to determine whether to issue a policy, and even how much that policy will cost. Landlords, on the other hand, want to know how a tenant has handled credit in the past to see if the tenant is a “good” credit risk. They are trying to find a responsible tenant who will pay the rent and fulfill the lease contract.
Three basic types of information are collected by credit bureaus: personal statistics, account information, and legal records. Personal statistics include name, address (past and present), Social Security number, and employment information. When changes of address and employment are listed on a credit application or given to a creditor, this information is reported to credit bureaus.
Account information is the heart of the credit record. It lists debts and how those debts are being paid. Account information covers accounts currently being paid, accounts that have gone to collection, and any charges being disputed.
Credit records are not limited to debt information. They may include legal records of judgments, tax liens, marriages, divorces, arrests, convictions, and other public records. Credit records may seem comprehensive, almost frighteningly so. However, credit records do not necessarily contain all credit information.
Large corporations such as national department stores and banks, along with major credit card companies like MasterCard, Visa, and American Express report information on a regular basis. Smaller creditors such as furniture stores, auto dealers, and gasoline stations may report credit information only if the account becomes past due. This is also true for most management companies and landlords. Therefore, neither all bad credit nor all good credit will necessarily be on a person’s credit record. Furthermore, credit records are not always correct.
Checking Your Credit Record
A tenant is entitled and encouraged to check the information listed at the various credit bureaus to make sure this information is correct. Each credit bureau may have different information listed on its report so it is wise to request a copy of your credit record from each bureau. Visit www.annualcreditreport.com to request a free credit report once every 12 months from each of the nationwide consumer credit reporting companies: Equifax, Experian, and TransUnion.
Mistakes are often made and will not be corrected unless the consumer discovers the errors and follows the necessary procedures to remove them. If a person is denied credit or denied an apartment because of information supplied by a credit bureau, the Fair Credit Reporting Act requires the creditor (i.e. the landlord) to give the name and address of the credit bureau that supplied the information. If a consumer contacts the credit bureau within 60 days of the denial and requests a copy of the credit information, the credit bureau must supply this information free of charge.
If a consumer has not been recently denied credit or is unaware of any inaccurate information on his credit record, then the credit bureau may charge a fee, not to exceed $8, for the information. The credit bureau is required to disclose all information found in a consumer’s file, except for the person’s overall credit score, risk score, or predictors. Creditors use these evaluations of a credit record as an easy tool to interpret the credit risk of an individual. The credit bureau must enclose with every request a “Summary of Rights” and a comprehensive statement of consumer rights under the Fair Credit Reporting Act.
Correcting Inaccurate Credit Information
If inaccurate information is found on a consumer’s credit record, that person has the right to have that information investigated free of charge. The first step is to dispute the debt by sending evidence that the debt in question is incorrect. Once inaccurate information is disputed both the credit bureau and the creditor have 30 days to investigate the debt. However, the deadline is extended to 45 days if the consumer provides additional relevant information after the initial notice of dispute. Once the investigation is complete, the credit bureau must notify a consumer within five days of the results. Any inaccuracies must be corrected if the debt is to remain. The bureau must also provide the following information in writing:
A statement that the investigation is complete;
A revised consumer report;
Notification that a description of the investigation procedures the bureau used will be supplied within 15 days if it is requested. This information includes the name, address, and telephone number of the creditor who furnished the information;
Notification of the right to add a statement disputing the debt to the file; and
Notification that the consumer can require the credit bureau to notify previous users of disputed information.
If the credit bureau investigates the dispute but concludes that the information is correct, the debt will remain on the credit record. But, the debt claim can still be fought. A brief written statement — not to exceed 100 words — explaining why the debt is disputed can be filed with the credit bureau. The credit bureau must include this statement whenever it releases the credit record. Creditors and landlords will then know that this is not just a debt that has not been paid, but a debt that may not be valid.
If a creditor tries to reinsert deleted information, it must certify to the credit bureau that the information is complete and accurate. If that information is reinserted, the bureau must notify the consumer, in writing, within five business days:
That the disputed information has been reinserted;
Of the name, address, and phone number of the furnisher of the information (if reasonably available);
That the consumer has the right to add a statement to the file about the disputed information; and
The consumer’s right to require the bureau to notify previous users of disputed information.
A credit bureau may stop an investigation if it finds the consumer’s dispute to be frivolous or irrelevant, including a lack of sufficient information in the request. That bureau is required to notify the consumer of its decision to and the reason for the termination of an investigation.
Violation of the Fair Credit Reporting Act by a credit bureau can result in it being held liable for any actual financial losses that result from the violation, punitive damages if imposed by a court, and reasonable court costs and attorney’s fees. Furthermore, the creditor can also be held liable for failing to participate in the resolution of a disputed debt.
How Long Will Bad Debts Be on a Credit Record?
Most negative information, disputed or not, will not remain on a credit record forever. The Fair Credit Reporting Act says that a credit bureau can report negative information for only seven years in most cases. However, the seven years begins from either the date of the last regularly scheduled payment or 180 days from the date of the delinquency if it is placed for collection, charged to profit, or other similar actions. Not all debts are subject to the seven-year rule. Bankruptcies, for instance, can be reported for 10 years, and tax liens can remain for seven years after the date they are paid. Furthermore, if you apply for more than $150,000 of credit; apply for a job paying $75,000 or more; or apply for a life insurance policy with a face value of $150,000 or more, negative credit information can be reported indefinitely.
There is no magical way to remove negative information from a credit record if the information is correct. Anyone who advertises that he can clean credit records can do nothing more than individuals can do for themselves. Some “credit repair” companies or “credit clinics” use the Fair Credit Reporting Act to remove legitimate debts from a credit record. Usually this is accomplished by sending multiple requests for verification of a debt, and if the credit bureau does not verify the debt within a reasonable amount of time, it must be removed. However, the credit bureau can reinstate that debt if it can be verified later.
The only way to get a legitimate debt off of a credit record is to convince the creditor to remove it. This can sometimes be accomplished by working out a payment plan so that as long as payments are being made on the debt, it will not be reported. Another solution is to negotiate a lump sum payment that may be less than the original amount. Old debts are generally worth less to the creditor than recent ones. The creditor may feel that getting something is better than nothing and will settle for less. If any agreements are made, they should be made in writing and signed before any payments are made. Otherwise, the creditor can simply apply the amount paid to the debt and continue to report it. A tenant may want to contact legitimate credit assistance agencies, such as Consumer Credit Counseling, to assist in the process of “repairing” bad credit.
Sometimes negotiation does not work, and the creditor demands the debt be paid. Besides reporting the debt to credit bureaus, creditors can also contact the debtor (the one who OWES) directly, file suit against the debtor, and/or engage a collection agency to collect the debt. Bill collectors may begin contacting the debtor by mail and by phone. While tenants have the legal obligation to repay creditors, they also have protection against certain undesirable collection practices. The Federal Fair Debt Collection Practices Act requires that a collection agency, not the creditor, cease all collection contacts if requested to do so in writing by the debtor. A debtor does not lose this protection no matter how delinquent the bills.
There is also a Texas Debt Collection Law. The following are just some of the practices that the Texas Debt Collection Act makes illegal.
Threats or Coercion
A creditor uses or threatens to use violence or other criminal means against you or your property to collect a debt.
A creditor contacts a third person, such as your employer or a relative and tells him that you are refusing to pay a non-disputed debt, when in reality the debt is disputed and you have notified the creditor in writing of the dispute.
A creditor threatens that he can have you arrested without proper court proceedings for failure to pay a debt.
A creditor tells you that he will file criminal charges against you, when in fact, you have not violated any criminal law.
A creditor falsely threatens that after your account is assigned to a collection company, you will no longer be protected by the law and will no longer have a legal defense to the claim.
Harassment or Abuse
Using profane or obscene language or language that is intended to unreasonably abuse the hearer or the reader.
Placing telephone calls without disclosing who is making the call and with a willful intent to harass a person at the called number.
Causing a telephone to ring repeatedly or continuously or making repeated and continuous telephone calls with the willful intent to harass any person at the called number.
Causing expense to any person in the form of long distance charges for any telephone calls without first disclosing the name of the person making the call.
Unfair or Unconscionable Means
No debt collector may collect or attempt to collect any interest, fee, charge, or expense unless such additional payment is authorized in a prior agreement signed by the debtor.
Fraudulent, Deceptive, or Misleading Representation
Using any name other than the true business name of the debt collector.
Falsely representing that the debt collector has something of value for the consumer to solicit or discover information about the consumer.
Misrepresenting the character, extent, or the amount of a debt or misrepresenting its status in any judicial or governmental proceeding.
Using a written communication that simulates or falsely represents to be a document authorized, issued, or approved by a court, an official, or a government agency.
Using any communication which purports to be from any attorney or law firm, when, in fact, it is not.
Deceptive Use of Credit Bureau Name
No person may claim to be functioning as a credit bureau or retail merchants association unless that person is in fact engaged in gathering, recording, and disseminating BOTH favorable and unfavorable credit or financial information to prospective creditors for use in the decision making process regarding the extension of credit.
Violation of any of the provisions of the Texas Debt Collection Act is a misdemeanor. Such a misdemeanor charge must be filed within one year of the alleged violation.
Any person may seek relief for actual damages or to prevent or restrain a violation of the act. If the person who brings the suit wins, that person will also be awarded reasonable attorney’s fees. However, if the court finds a claim was brought for harassment or in bad faith, the defendant shall be awarded reasonable attorney’s fees.
A violation of the Texas Debt Collection Act is also a deceptive trade practice and is actionable under the Texas Deceptive Trade Practices Act as well as the Texas Debt Collection Act.
If you believe you have been the victim of an unfair debt collection practice, you may file a civil suit in court, which usually requires representation by an attorney, or may file a complaint with the Consumer Protection Division of the Texas Attorney General’s Office. Once the complaint form and its attachments — or supporting evidence, such as contracts, letters, checks, and receipts — are received in duplicate, the complaint will be reviewed. Never send originals. You should always send copies, keeping the originals for your own files.
First, the Texas Attorney General’s Office (AG) determines if it has jurisdiction to process the complaint. If it does not, the complainant will be referred to the proper agency. If the AG decides to investigate the complaint, it will be done for free. Predicting how long this process will take is impossible. Much depends upon the size of the AG’s current caseload. However, the first step — filing a complaint — is the most important. The AG often looks for a pattern of violations. If no one ever files, it is certain that nothing will be done.
When making the written complaint, be thorough, accurate, and concise. A copy of the completed complaint form will be sent to the person or firm against whom the complaint is filed. The complaint form provides an area where the consumer can describe what he feels would be a reasonable and fair solution to the problem. Give this issue some careful thought. The claim may be mediated and a settlement may be offered based on these suggestions.
The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.
The Eviction Process
A landlord may try to evict a tenant for failing to comply with the terms of the lease agreement. These reasons may include failure to pay rent, permitting persons not on the lease to live in the dwelling, or violating other material terms of the lease agreement. However, a tenant always has the right to fight an eviction in court.
An eviction for alleged breach of the lease is different from terminating a lease at the end of its term, otherwise known as a “non-renewal.” If the landlord alleges breach of the lease, the landlord must prove the tenant violated the lease terms.
Interesting Facts about Texas!
10 Fascinating Facts About Texas You Didn’t Know
The State Capitol in Austin stands largest among all the states.
The San Jacinto Monument near Houston is among the tallest columns in the world; at 570 feet, its about twenty feet higher than the Washington Monument in the District of ...
Texas has more counties (254) than any other state. Forty-one counties in Texas are each larger than the state of Rhode Island.
Of the nation’s ten largest cities, three are in Texas (Houston, Dallas, and San Antonio).
Texas is the nation’s leading producer of oil, natural gas, beef, sheep, goats, wool, cotton, rice…and, oh yes, watermelons.
Today, approximately 18 million people live in Texas, only slightly outnumbering its 15 million cattle. Texas today is also home for about 2.5 million deer and 200,000 alligators.
The land area of Texas is larger than all of New England, New York, Pennsylvania, Ohio and Illinois combined. ...
The Dallas/Ft. Worth airport is larger than New York City’s Manhattan Island.
El Paso, Texas is closer to Los Angeles on the Pacific Coast than it is to Port Arthur on Gulf Coast of Texas. ...
WHAT IS THE EVICTION PROCESS?
The eviction process is a formal judicial procedure that will include going to the Justice of the Peace (JP) court or possibly to a higher court. Evictions can be complicated. To fully understand the eviction process, carefully read this entire brochure.
STEP ONE: NOTICE TO VACATE
The first thing a tenant should know is that a Notice to Vacate is not an eviction. A tenant does not need to move out merely because the tenant receives a Notice to Vacate from a landlord and a tenant does not violate the law by not moving out. A Notice to Vacate is simply a demand for possession of the property for a substantial breach of the terms of the lease. If a landlord wants to evict a tenant, the landlord must give proper notice and follow the correct steps in the judicial process.
The landlord must first deliver a written Notice to Vacate to the tenant. This notice must be in writing. The landlord must give the tenant at least three days to vacate unless a written lease sets a different time period, such as 24 hours. The notice must demand that the tenant vacate by a date stated in the notice. It does not have to state the reason for the eviction, although it is a good practice for the landlord to state the reason for the eviction in the notice.
The landlord may give the Notice to Vacate to the tenant in the following ways:
By personal delivery to the tenant or any person over 16 years of age residing at the unit;
By certified, registered, or regular mail;
By attaching it to the inside of the front entry door; or, as an alternative to #1, 2 and 3,
By attaching it to the outside of the front entry door in a sealed envelope on which is written the tenant’s name, address, and in all capital letters, the words “IMPORTANT DOCUMENT” (or substantially similar language) but only if:
There is no mailbox; and
The landlord cannot enter the unit because a dangerous animal, keyless deadbolt or an alarm system prevents the landlord from entering the premises or the landlord reasonably 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 to the premises by affixing the notice to the inside of the main entry door.
NOTE: If a landlord chooses to affix the Notice to Vacate on the outside of the front entry door in a sealed envelope, as cited above in #4, the landlord must also, not later than 5 p.m. of the same day, deposit a copy of the Notice to Vacate in the mail within the same county in which the dwelling in question is located. The Notice to Vacate is considered delivered on the date that the sealed envelope is both affixed to the outside of the door and is deposited in the mail regardless of the date the notice is received.
PERIOD OF TIME DECLARED IN THE NOTICE TO VACATE
The period of time declared in the Notice to Vacate is calculated from the day on which the notice is delivered.
NOTE: If the landlord has given the tenant a written notice or reminder that rent is due and unpaid, the landlord may include in the Notice to Vacate a demand that the tenant pay the rent or vacate.
STEP TWO: EVICTION CITATION AND SERVICE BY THE CONSTABLE
If the tenant does not move out by the deadline in the notice, the landlord must file an eviction suit with the Justice of the Peace (JP) court in the precinct in which the property is located. The citation will set a hearing date which must not be less than 10 days nor more than 21 days after the suit is filed. The landlord cannot remove the tenant or the tenant’s property until the eviction process is completed, unless the tenant abandons the property.
(Some leases give the landlord a lien on the tenant’s property under which the landlord can seize certain property and hold it until the rent is paid. Landlord’s Lien is discussed at length in our Landlord’s Lien brochure: here.)
After the landlord files the eviction suit, the court clerk will send the eviction citation to the constable’s office for delivery to the tenant. A constable will attempt to hand-deliver the citation to the tenant at the tenant’s home. After two unsuccessful attempts, the constable may slip the citation under the front entry door or attach it to the front door and mail a copy by first class mail.
STEP THREE: TRIAL
The trial is held on the date and at the time stated in the citation. No written answer is required in justice court. A tenant has a right to a jury trial. To request a jury trial, the tenant must file a written demand at the Justice of the Peace and pay a jury fee at least three days before the trial date.
GOING TO COURT
The landlord and the tenant must appear before the Justice of the Peace on the trial date and be prepared to present their case. The judge will make a final decision and sign a judgment stating which party is entitled to possession of the premises. A tenant should always request a copy of the final judgment from the court clerk.
Complying with the Judgment or Filing an Appeal
If the judgment is in favor of the landlord, the tenant will have five calendar days to make one of two choices:
Comply with the judgment by moving out of the dwelling or
Appeal the judge’s decision.
If the judgment is in favor of the tenant, the landlord also has five days to appeal.
If the tenant loses and does not move or appeal within five days of the judgment, the landlord may go back to the Justice of the Peace and pay for a writ of possession to have the constable remove the tenant. The constable will post a 24-hour notice on the front entry door of the unit prior to executing the writ of possession. If the writ of possession is executed, the constable will remove the tenant and the tenant’s belongings will be removed from the dwelling at the discretion of the landlord.
Appeals can be complicated and this brochure does not cover all related information. It is strongly advised that you consult an attorney.
The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.
Fair Housing and Immigrants, Refugees, and People of Religious Faiths
Call the Fair Housing Program at 512-474-1961 if you think you have been the victim of housing discrimination because you are an immigrant or a refugee, because of where you are from, or because of your religious faith.
The fair housing laws protect you regardless of your immigration status.
It is illegal for a landlord to treat you differently because of your immigration status, national origin, or religion. That means people involved in renting homes cannot:
refuse to rent to you because you are an immigrant or refugee or because of your religious faith;
refuse to rent to you because you are not from the United States;
charge you more rent or a higher security deposit because of where you are from, your immigration status, or because of your religious faith;
require you to get a co-signer because you are an immigrant, refugee or because of your religion;
tell you not to cook food you like because of the smell;
refuse to rent to you because you or some of your family members do not speak English;
tell you that you must speak English when outside of your apartment;
force you to choose an apartment near other people who are from the same country, speak the same language as you, or are of the same religion;
enforce rules against you or your family because you are an immigrant or refugee or because of your religion but not enforce those rules against anyone else.
IT IS ILLEGAL FOR A LANDLORD TO ASK YOU TO IDENTIFY YOUR RELIGION.
It is illegal for a landlord to ask you questions about your immigration status because of how you look, talk or dress.
Some landlords, owners, real estate agents, etc., might ask if you are in the country legally, ask to see your green card or visa, or ask for your social security number. If you think that you are being asked about your immigration status because of where you are from, call the Fair Housing Program.
State and federal fair housing laws continue to protect you once you are living in your home or apartment. A landlord, owner, real estate agent or anyone else cannot:
ask you to remove your head scarf, hijab, burka, keffiyeh, kippah, other religious clothing, or other religious symbol;
evict you because of your religion, your immigration status, or your refugee status;
threaten or harass you because of your religion, your immigration status, or your refugee status.
HARASSMENT OR THREATS INCLUDE:
Threatening to report you to the police or immigration authorities because of your immigration status;
Saying you will be deported;
Telling you to go back to your own country;
Painting graffiti or writing on your home, including using slurs or threats to harm you or your family if you do not move out;
Yelling racial, ethnic, or religious slurs at you and your family;
Blocking access to your home, your belongings, or property amenities (like a swimming pool or laundry area)
YOU ARE ALSO PROTECTED IF YOU ARE BUYING A HOME OR ATTEMPTING TO GET A MORTGAGE. Call the Fair Housing Program if you believe you are being prevented from buying a home or getting a loan because of your immigration status, refugee status, or your religion.
*There are some exemptions from the fair housing laws. Please call the Fair Housing Program even if you think your landlord may be exempt from the law.
Credit for this page goes to Connecticut Fair housing.
Filing a Claim in Small Claims Court
Initiating a lawsuit should be considered a last resort to be used only after all possibilities of negotiation have been exhausted. Before you file, you may want to contact various agencies to see if counseling and mediation services are available for your specific problem. If your dispute arises out of a tenant-landlord relationship, you should contact the Austin Tenants’ Council for counseling. The Dispute Resolution Center also has mediators who assist disputing parties in resolving their conflicts and reaching mutually acceptable agreements outside the courtroom. However, if mediation fails, you may desire a legal remedy.
This publication is designed to familiarize you with the procedures involved in a small claims court lawsuit, but is not a substitute for legal advice. If you need legal advice, you should contact an attorney.
The state of Texas provides courts in which individuals may settle monetary disputes in a speedy, informal setting. They are known as small claims courts.
A small claims court is a judicial forum for civil cases involving claims for MONEY ONLY in amounts of $10,000 or less. The small claims court cannot order someone to return, replace, or repair property; to do some act; or to refrain from doing some act.
To File or Not to File
To sue another person in small claims court, one must file a sworn statement called a petition or a complaint with the justice of the peace (JP). The person who sues is the plaintiff; the person being sued is the defendant.
If you are considering filing, learn something about the defendant before you file your suit. If the defendant does not have anything (money or property) that could be seized legally by the constable, it is likely that you will never get what you are suing for. It is a terrible disappointment to find out after you have taken the time and expense to win a case and then try to collect on your judgment that the defendant is penniless. In other words, “You can’t get blood from a turnip.”
Consider whether the person you want to sue has any legal claims against you that he might counter-file. It may not be wise to sue someone for $100 if that person could prove that you owe him/her $200.
Determine when your cause of action arose. The time within which you must file suit — or lose your claim — is governed by law. In small claims court, the statute of limitations is two years. If you do not file within that time period, you will probably lose your opportunity to file a claim.
Who May Sue or Be Sued?
Any person over the age of 18 years may sue in small claims court. A minor may use the court by having a parent, relative, or “next friend” over the age of 18 go with him/her to file a claim and later go with him/her to the trial.
A minor may be sued in small claims court. The parent or guardian is not automatically responsible for the acts of the minor. However, if you sue the parent or guardian, you must be prepared to prove why the parent or guardian should be held responsible for the acts of the minor.
An association, partnership, or corporation over which the court has jurisdiction may also be sued.
The court has the power to enter judgment against the defendant if he is present in the state of Texas or makes his permanent home in the state. In the case of a business entity, it must have done business with you in the county in which you sue.
Which Court to Use
The justices of the peace in each county sit as judges of the small claims courts. The addresses and telephone numbers of these courts may be found in the local telephone directory. A small claim is normally filed in the court of the precinct which covers the area where the defendant lives. There are some exceptions to this such as when the defendant lives in one county but has contracted to provide services in another, in which case either location may be chosen.
If the defendant attempts to change the venue, that is, have the case moved to another precinct or county, contact the court for information.
The civil clerk in the small claims court will provide you with a petition in which to state your claim. The clerk will accept your fee and give you a receipt. Check with your local justice of the peace precinct for current fees. If you cannot afford the fee, ask the clerk of the court about a pauper’s affidavit.
Most cases are heard by the judge. However, either side may ask that a jury hear the case. This request must be made no later than one day before the case is set for trial. The fee for jury trial is $5.
Give the clerk the following information:
Your complete name, address(es), and phone number(s).
The complete name and address of each person or business your claim is against. Determine this before going to the clerk; correct names and addresses are vital to your case because the court cannot grant a judgment against a defendant who is improperly named in the complaint. If the business is a partnership, name both partners individually and the partnership by its correct legal name. If the business is a corporation, state its exact name including the word or abbreviation “incorporated” or “company” and state the name of the registered agent for the corporation. The registered agent’s name may be obtained by contacting the Texas Secretary of State’s Corporate Division. Remember that the address of the registered agent may be different from that of the business.
The exact amount of money your claim is for.
The basis of your claim, stated plainly and without technicalities, including the date your claim arose.
You will be asked to swear that the content of your petition is true.
Tell the clerk where the defendant may be found and when he is likely to be there. Once a plaintiff has filed a petition, a constable delivers a citation (notice that a lawsuit has been filed) to the defendant. The defendant must be served a citation before the suit can commence.
Call the clerk in 10 to 14 days to make sure the defendant has been served, and find out the exact date he was served. Some courts will mail you a postcard which contains this information. The date of service is important because it must be used to calculate the date by which the defendant must answer the court. If the defendant has not been served within 90 days, the plaintiff must ask the clerk to have a new citation issued.
Calculate the appearance date as follows: Start counting from the first day after the date of service (when the constable delivered the notice to the defendant ) and count forward 10 days including weekends and holidays.
The Monday following the expiration of the 10 days at 10:00 a.m. is the deadline for the defendant to answer the court. If that Monday falls on a legal holiday, the answer date is the next day. Verify this date with the clerk.
If the defendant does not answer or appear in court, the plaintiff can then call to make an appointment to obtain a judgment by default against the defendant. The plaintiff should come to the default judgment hearing fully prepared to present all his evidence to the court.
If the defendant believes that he has a good defense against the default judgment, the court should be contacted IMMEDIATELY. A defendant can ask that a default judgment against him/her be set aside and a new trial granted by filing a written request with the court within five days from the date the default judgment is signed.
The date the defendant answers the court is generally not the date of the trial. Check with the clerk to determine when the trial will be held. Some courts send a notice to all parties advising them of the trial setting. On that date, BRING WITH YOU TO THE COURT any evidence of your claim — such as receipts, invoices, cancelled checks, and correspondence — and any witnesses who will testify on your behalf. DO NOT BE LATE!
It is perfectly acceptable to try and “work something out” with the other side, but it is still best for the defendant to answer the court in case the negotiations fall through and the plaintiff still wants to go to court.
If a defendant has a claim of damage or liability (responsibility) against the plaintiff, the defendant can file a counterclaim against the plaintiff in the small claims court under the same suit the plaintiff originally filed. The defendant may send the counterclaim to the plaintiff by certified mail with return receipt requested. Save a copy of the counterclaim and the receipt for your records. If the defendant has the constable serve the other party (just as the defendant was served), there will be a fee for service. Check with the court to determine if it charges a separate filing fee and/or fee for service.
If the defendant files a counterclaim, the defendant has “the burden of proof” to convince the judge or jury that the defendant should win. If the evidence in the defendant’s favor is only equal to and not greater than the evidence in favor of the plaintiff, the defendant will lose on that counterclaim.
Preparing for Court
Small claims court is designed to be accessible to the layperson. For this reason, technical rules of evidence and civil procedure are not applicable as in higher courts. Either party may choose to have an attorney represent him/her, but it is not required in this court.
The plaintiff has “the burden of proof.” That means that the plaintiff must convince the judge or jury through his presentation that he should win. If the judge or jury thinks the evidence is equal, the plaintiff may lose.
Written documents, photographs and/or witnesses will make your case more convincing than if you rely only on your argument.
Bring your witnesses and records to court for the hearing. If witnesses will not come voluntarily, the court will subpoena (order) them to appear if requested. If the court must deliver the subpoena, there will be a fixed cost plus a $1-fee in cash. In some circumstances, the court will allow a disinterested party to serve the subpoena for $1. Please contact the court for current fees and information.
A CONTINUANCE is a court-approved postponement of a hearing. If you or an important witness or document will not be available on the date of the hearing, you should request a continuance.
A continuance will generally be granted when the other party notifies the court by telephone that he agrees to the postponement.
If the other party will not agree to a postponement, you must make a MOTION (request in writing) for continuance. Your written request must include a sworn statement (notarized affidavit) explaining why you cannot go to trial. A hearing may be ordered by the court to determine if the delay should be granted.
If the other party notifies you of a reasonable need to postpone the hearing, you will save yourself some inconvenience by agreeing to the continuance.
If you need a Spanish or deaf interpreter, tell the clerk several days before trial.
Practice explaining your case to a friend. Write down a few notes or a brief outline to follow in court to make sure you touch on all the points in your favor. Try to anticipate what the other side will say and be prepared to meet those arguments. You might sit in on another case like yours to get an idea of what to expect. The civil clerk can tell you when a case like yours is scheduled to be heard.
Remember, the plaintiff may, at any time, drop the suit.
Once You Get to Court: The Hearing
The plaintiff will present his side first. Then the defendant can present his side.
You may testify yourself. You may call your witnesses to testify. You may also call the other side and any of his witnesses to the stand to testify. Anyone called to testify may be cross-examined (questioned) by the other side.
Explain your case to the judge. You cannot expect to win unless you make the court understand (1) the kind of case you have; (2) exactly what amount you are requesting; and (3) why you believe you are entitled to that amount.
REMEMBER: The judge must decide the case based on the sworn testimony presented in court on the day of the trial. DO NOT tell the judge you have witnesses not present or papers at home that would support your side.
Address your statement to the JUDGE or JURY, not to the other side. Do not interrupt the judge and always address him/her respectfully: “Your Honor.” After both sides have concluded, the judge will enter a JUDGMENT as to who wins and what amount he is entitled to. You may ask for a copy of the judgment in writing. If the judge takes the case “under advisement” it means that he is withholding a decision. Telephone the court a few days later to find out if the judge has made a decision in your case.
If the Plaintiff Wins
If the judgment in the case is for the plaintiff, the defendant will be ordered to pay the amount ordered by the court plus court costs. Court costs include all fees collected by the court.
If the defendant does not pay the money ordered by the court, the plaintiff may go back to the court 10 days from the date the judgment was made. If the defendant has not appealed the case to the county court at law or asked the judge for a retrial, the plaintiff may take the steps to have the court assist him/her in collecting on the judgment.
Collecting on the Judgment
Ten days from the date of the judgment, you may get a copy or an abstract of the judgment from the small claims court and file it with the county clerk’s deed records. As long as the judgment is unpaid, the other party will generally not be able to sell real estate in the counties in which the judgment abstract is filed. The fee for recording the abstracts is subject to change. Check with your local JP court for current amounts.
You may also get a WRIT OF EXECUTION from the court after 30 days which orders the constable to seize certain kinds of property belonging to the defendant. Check with the court for fees. Most luxury items such as TVs, stereos, radios, cameras, and second cars are subject to execution. This property may be sold by the constable to satisfy an unpaid judgment. This order is generally much more effective against a business than an individual because ordinarily the majority of personal property is exempt. Therefore, it cannot be seized.
You may, through an attorney, obtain a WRIT OF GARNISHMENT from the court which attaches the defendant’s assets in the amount of the unpaid judgment. There is no garnishment of wages for debt collection in Texas.
If a defendant is bankrupt, a claim must be made in the federal bankruptcy court. Contact the clerk of the small claims court to see if he has on file the formal case (cause) number for the bankruptcy. Your next step would be to check with an attorney on rights and remedies with regard to bankruptcy claims.
If the amount of issue, exclusive of costs, exceeds $250, either party may appeal to the county court at law for a new trial. To appeal, you must post a BOND with the JP court within 10 days from the date of the judgment or order overruling a motion for new trial or file an affidavit of inability to pay costs of appeal within five days from the date of judgment or order overruling a motion for new trial. Check with the court for the cost of an appeal.
If you believe that you are entitled to a NEW TRIAL (really a retrial) in the JP court, you must request one in writing within five days of the judgment. These deadlines cannot be extended. Do not expect to be granted a new trial unless your written request states facts showing that “justice has not been done in the trial.”
If neither side appeals to the county court at law within 10 days of the judgment or order overruling a motion for new trial, it becomes final. If the judgment says that the other side owes you money and he does not pay you, follow the “COLLECTING ON THE JUDGMENT” procedures outlined above.
If your landlord stops making their mortgage payments to the bank, that bank will often begin the foreclosure process to take back the property. Often times a bank becomes the new owner or sells the property at a public sale. If the bank becomes the owner, it may hire a servicing company to handle the property.
Foreclosure can also occur if the property taxes are not paid and a governmental agency takes possession. Your landlord then loses all rights to the property.
Your rights and duties won't change when your landlord is in foreclosure. You still have to follow the terms of your lease, you have to pay rent and whoever now owns the property still has to maintain the property.
Foreclosures can be complicated. When in doubt, always consult an attorney or contact Austin Tenants Council for guidance.
1. What happens to a lease if a landlord is foreclosed on?
The Protecting Tenants at Foreclosure Act (PTFA), permanently restored on June 23, 2018, (a) guarantees all bona fide tenants, even those with month-to- month or verbal leases, at least 90 days' notice to vacate prior to an eviction filing and, (b) allows bona fide tenants with written leases to occupy a property until the end of the lease term, except that the lease can be terminated on 90 days' notice if the unit is sold to a purchaser who will occupy the property.
Under PTFA, tenants with a Section 8 Housing Choice voucher have additional protections allowing them to retain their Section 8 leases and requiring the new owners to assume the contracts associated with the leases.
Note that tenants with leases of any kind, including month-to-month, are protected as long as the tenancy is in effect before the date of title transfer after the foreclosure sale and they are considered a bona fide tenant.
2. What is a “bona fide” tenant?
To be considered a “bona fide” tenant and entitled to protections under the PTFA, all of the following must be true:
(a) the tenant is not be a child, spouse or parent of the former owner;
(b) the lease must have been a result of a written or spoken contract, not a special deal between friends or family; and
(c) the rental amount must be a rent that is not substantially less than a fair market rent for the property, i.e., it is not discounted. If it is lower, it must be due to a government program that subsidizes the rent.
The burden of proving if the tenancy is bona fide is usually placed on the tenant during eviction proceedings. Consult an attorney or the Austin Tenants Council if you are unsure if you are a bona fide tenant and protected under the PTFA.
3. How much time does the new owner have to give the tenant to move out?
The new owner must:
(a) provide tenants with month- to- month or verbal leases with at least 90 days’ notice to vacate prior to an eviction filing, unless the tenant fails to pay the rent or otherwise violates the lease; and
(b) allow tenants with written leases to occupy a property until the end of the lease term and give at least 90 days’ notice to vacate prior to the expected move-out date, unless the new owner plans to reside in the property in which case the new owner may terminate the lease by giving the tenant at least 90 days notice.
Note that if you are renting month- to- month, or your lease expired and you are now renting month- to- month, the new owner must still give you at least 90 days’ notice before beginning the eviction process, unless you fail to pay the rent or otherwise violate the lease.
NOTE: A notice of pending foreclosure is NOT a notice to vacate.
4. Who is the new owner?
If a foreclosure occurs, you will be notified of the change in ownership. You can find out if a foreclosure sale has occurred or who the new owner is by checking the Real Property Records of the county clerk for the owner of the property.
Sometimes the county clerk’s office will charge you for copies of the information. If you suspect that foreclosure has occurred and you have not been notified, you can also send a letter to the current management company and ask whether a foreclosure sale has occurred. The letter should ask that the management company respond within 7 days from the date it receives your letter. We strongly suggest sending the letter by certified mail, return receipt requested, and regular mail. You should always keep a copy of your letter.
Be aware of scammers. Before paying rent to someone claiming to be the new owner, make sure it is the actual legal owner. Request a copy of the proof of ownership or contact your county clerk’s office.
5. Is the bona fide tenant required to pay rent during the 90 days or the duration of the lease term?
Yes, you must pay rent to the new owner. The new owner should give you written notice with instructions on payment of the rent. See ¶ 6 below. If you are a bona fide tenant and you do not pay rent after notice, the new owner may evict you for nonpayment of rent.
Before the foreclosure is finalized, tenants should continue to pay rent on time and to the management company or landlord, as laid out in the lease.
6. If the tenant pays rent to the current landlord and then receives written notification of a foreclosure, does the tenant also have to pay rent to the new owner?
No, continue to pay your rent as laid out in your lease. Until the new owner gives the tenant written notice that the property was bought and a name and address where to send payments, the tenant is not responsible for rental payments to the new owner.
Once the purchaser gives notice that it has purchased the property at a foreclosure sale and provides written notice of its name and address and requests the rent payment, the tenant has five days after receipt in which to pay the rent before it is considered late. See § 24.005(b), Tex. Prop Code. If the tenant has already paid the rent for the month to the prior owner, the tenant will first have to pay the purchaser the rent for the following month. In such a case, you should immediately notify the purchaser that payment was made to the prior owner.
While the foreclosure action is pending, a receiver or trustee may be appointed to manage rental payments. If a receiver or trustee is appointed, tenants should receive proof of appointment and information on how to submit rental payments to the receiver instead of to the landlord. Foreclosure actions and notices are filed with your county court. Tenants can request records about their specific property at their local county clerk’s office.
After the foreclosure sale is complete and title is transferred to a new owner, the new owner must provide notice to all tenants providing the new owner’s name and address and how payment can be received.
7. Is court action necessary for a property to be foreclosed on?
No court order is necessary for a lender to conduct a foreclosure sale on a defaulted home loan which is secured by a mortgage, unless the mortgage specifically provides otherwise. Typically, a 21-day notice will be sent to the mortgagor stating that the loan is in default and the property will be subject to foreclosure sale on the first Tuesday of the following month. If the landlord does not resolve the issue with the lender, the property will be offered for sale. All mortgage foreclosure sales (but not tax sales) in Texas are held on the first Tuesday of the month.
A tenant can find out whether property is posted for a foreclosure sale by contacting the local county clerk for postings. The county clerk must keep all foreclosure notices on file for examination by the public. In addition, if a county maintains an Internet website, the county must post notices of sale filed with the county on the website on a page that is publicly available for viewing without charge or registration.
(Note: Before a home equity loan, reverse mortgage, or transfer tax lien may be posted for sale with the county clerk, the lienholder must obtain a court order allowing the foreclosure sale to proceed.)
8. Who is responsible for the security deposit after a foreclosure and how does the tenant get it back?
If your deposit was not transferred to the new owner, the former landlord is responsible for refunding your deposit. As soon as this verification of foreclosure is received, the tenant should send a demand letter to the former landlord giving 10 days from the date the letter is received to return the security deposit. Sending this letter by both regular mail and certified mail, return receipt requested, is recommended. The landlord, however, may have the usual 30 days to refund the security deposit. The security deposit law does not provide a time period for refund of a deposit following a foreclosure, but it is assumed to be 30 days.
If the tenant moves out after the lease ends and then the property is foreclosed on, the landlord still has 30 days to refund the deposit.
Finally, if the landlord who holds the deposit files bankruptcy and lists the deposit as a debt, the tenant should be notified by the bankruptcy court of the bankruptcy and given notice of the right to file a proof of claim form and file it with the court. This ensures that the tenant’s claim for the deposit will be paid if there are sufficient assets to distribute to creditors.
In all cases, the tenant should make every effort to provide the holder of the security deposit with a current forwarding address.
9. Does the former landlord have the right to withhold any part of the security deposit after foreclosure?
No. This is the former owner of the property and not someone who holds the title to the premises. The former landlord does not have the right to walk through the property prior to returning deposit monies and cannot verify the condition of the premises. Therefore, the former landlord has no right to claim damages to the property and has no right to withhold any part of the deposit.
You may still have to pay the new landlord a new deposit if the new landlord enters into a new lease with you and requires a security deposit, even if the former landlord wrongfully holds your first deposit.
10. What happens if the landlord fails to return the deposit after receiving a written demand?
If 30 days have passed since you sent the prior landlord a written request for a refund and the landlord has failed to return the security deposit, Austin Tenants Council strongly urges consulting our office and/or a licensed attorney to get consultation on what your next steps should be.
11. What do I do if my home or apartment needs repairs or my utilities were shut off because the former landlord did not pay the bill?
The new owner becomes the landlord for all purposes after the foreclosure is finalized. Any repair requests or utility services (if the utilities were the landlord’s responsibility) are the new owner’s responsibility. You may be able to keep your utilities on by contacting the utility company and directly paying something to avoid shut-off even if the utilities are in the former owner’s name.
12. When is a new lease agreement created? What choices does the tenant have in entering into one?
The new owner may choose to continue the existing agreement the tenant had with the previous landlord or may ask the tenant to sign a lease with a different rental amount and other terms. In such a case, the tenant can decide to reject the offer of a new lease and to move. The tenant is not obligated to sign a new lease, but can give immediate notice and move. But the tenant is entitled to continue under the terms of the old lease for at least ninety days.
A tenancy can also be established with the new landlord through a verbal agreement or, implicitly, by payment and acceptance of rent.
13. If the tenant does not want to negotiate a new lease with the landlord, how much notice must be given to the landlord before the tenant moves out?
If a tenant has not established a new tenancy period with the new landlord through the payment of rent or by a new written agreement, then the tenant can leave. (Of course, a tenant should always notify the landlord or owner in writing that the tenant is moving and the tenant should return the key and get a receipt).
If a tenant has established a tenant-landlord relationship through the payment of rent, but has not yet signed a new lease agreement with the new owner, the tenant must give written notice to terminate this tenancy. The notice period should be based on the frequency of rental payments, for example if the tenant pays once a month, then a 30-day notice must be given. If a tenant pays every two weeks then a 14-day notice must be given, etc.
Once a tenant receives written notification that a foreclosure sale has occurred, the tenant may choose to move without fear of being held liable under the lease with the prior landlord. Of course, the tenant may be held liable for the reasonable rental value of the rental premises for the time between the foreclosure sale and the date the tenant moves out.
Always move out in a provable manner (i.e., clean the property, take pictures and turn in the keys with a witness who is over the age of 18 years, or get a receipt for the keys).
14. What do I do if the new owner offers me cash for keys?
The new owner may offer you money in exchange for vacating the premises. If you do not accept, you still have a right to finish out the lease term and receive 90 days’ notice so long as you pay the rent. The new owner cannot evict you if you do not want to leave before the 90 days is up and you pay the rent and otherwise comply with the terms of the lease. If you feel that the new owner is wrongfully evicting you, contact an attorney or the Austin Tenants Council.
15. Can I just move out?
Yes, you do not have to stay after the foreclosure sale. Again, always move out in a provable manner (i.e., clean the property, take pictures and turn in the keys with a witness who is over the age of 18 years, or get a receipt for the keys).
16. What claim does the new landlord have for damages to the property?
The new owner has no claim to any damages, except for those in which occur after the new owner acquired title. Normal wear and tear cannot be assessed to a tenant under any circumstances.
To prevent disputes, the tenant and the new owner should complete an inventory to document the current condition of the rental unit. If the owner does not provide such a form, the tenant should inventory the condition of the property anyway. Any documentation of the condition of the unit is sufficient, including pictures and/or videotape. The tenant should keep a copy and give the original to the landlord.
“We don’t rent to your kind.”
“You’re just not the kind of person we want here.”
“Only five people can rent a three-bedroom apartment under our rules.”
“Congratulations on the new baby. But since you’re in a one-bedroom apartment, you’ll need to move into a two-bedroom unit.”
“I’m sorry, but we’ll have to charge a pet deposit for your guide dog.”
“We have a separate waiting list for people in wheelchairs.”
“Families with children can only live in buildings near the back of the complex.”
The Fair Housing Program helps any person who has been discriminated against in the rental, sale, financing, or appraisal of housing. The state and federal Fair Housing Act prohibits discrimination because of a person’s race, color, national origin, religion, sex, disability (mental or physical), or familial status. For Austin residents, additional protections include marital status, sexual orientation, gender identity, age, or status as a student. FHP documents and investigates complaints; provides advice about remedies under fair housing laws; and coordinates legal services to assist victims of housing discrimination. FHP provides fair housing seminars and presentations to interested groups
What are the protected classes?
Federal and Texas laws prohibit discrimination based on the following protected classes:
Disability (meaning a “physical or mental impairment which substantially limits one or more of [a] person’s major life activities, a record of having such an impairment, or being regarded as having such an impairment.”)
*For Austin residents, additional protections include marital status, sexual orientation, gender identity, age, and status as a student.*
What happens if someone violates the Fair Housing Act?
The Fair Housing Act is enforced by a variety of means and organizations. Violators may face an administrative complaint or a civil lawsuit in which damages may be sought.
Fair Housing and Occupancy
Occupancy” policies refer to requirements that limit the number of people allowed to live in a residential space.
There is not a statewide law that places limits on how much a landlord can increase the rent when a lease is renewed. In fact, Texas law only allows cities to establish local rent control ordinances in certain cases. A state of disaster has to have been declared and the city must find that a housing emergency exists. The governor must approve the ordinance before it can go into effect.
If a landlord is trying to increase the rent by too much, the tenant can either try to negotiate or choose not to renew their lease. Please note that a landlord cannot raise the rent to punish a tenant for exercising one of their legal rights.
Section 214.902 of the Texas Local Government Code
Section 214.902, "Rent Control," sets out when a municipality may enact rent control ordinances.
Texas Property Code, Chapter 92, Subchapter H
This subchapter prohibits landlords from retaliating against a tenant for exercising a right given to them by law or by the lease. These rights might include requesting repairs, complaining to a governmental agency about building, housing code, or utility problems, or participating in a tenant organization.
City government, landlords, and tenants all have reason to seek reasonable limits on the number of people that live in a space. Often, occupancy limits are put into place by government agencies to protect tenants from health and safety concerns related to overcrowding. Landlords may wish to limit the number of occupants in order to reduce the burden on the property maintenance, utilities, or parking. Some housing providers may violate tenants’ health or safety by placing too many renters into a space to increase the rent income. Occupancy policies, when reasonably implemented, can benefit living conditions and protect tenants’ rights.
However, overly restrictive occupancy requirements may violate tenants’ rights and the law. In expensive and competitive rental markets like Austin, tenants can increase their affordable housing options when they are allowed to make their own decisions about how many people they share a space with. Additionally, unreasonable or unequally applied occupancy limits can have a discriminatory effect on families. Familial status, meaning the presence of children under the age of 18 or a pregnant female, is one of the protected classes under the federal and state Fair Housing Acts. Imposing an unreasonable occupancy limit is one way of saying to a couple or single parent with children, or a pregnant woman, that they are not welcome there.
In Austin, housing is currently subject to the following limits on the number of people that can live in a housing unit:
City land use code allows no more than 6 unrelated adults per dwelling. The Austin Land Use Code restricts the number of unrelated residents who can occupy a dwelling together. This limit does not apply to households comprised of family members. This is sometimes referred to as Austin’s “stealth dorm” ordinance. (City Code Section 25-5-511)
City property maintenance code allows two or more adults per bedroom, depending on square footage. The International Property Code, on which City Code relies, states “a bedroom occupied by more than two adults must contain at least 120 square feet, plus an additional 50 square feet for each adult in excess of three.” The City Property Maintenance Code places no restriction on children under 18 years old. A bedroom can be defined as a traditional sleeping room, but can also include certain living spaces if they meet minimum standards regarding square footage, ventilation, exits, etc. (Austin amendments to International Property Code)
State law allows no more than three times the number of adult tenants as there are bedrooms. For example, under state law, the maximum number of adults permitted in a three--bedroom dwelling is nine. A landlord may allow an exception if an adult whose occupancy causes a violation is seeking temporary shelter from family violence for a period that does not exceed one month. The State law does not restrict the number of children in addition to the number of adults. The State law also does not require that the adults be distributed three per bedroom; rather, the total number of bedrooms is used to calculate the total number of adults. (Texas Property Code Section 92.010)
Federal guidance indicates that two people per bedroom is reasonable as a general rule, but that the specific circumstances must be taken into account. HUD’s Keating Memorandum states that “an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act.” However, HUD also states that other factors may be considered to determine what is a reasonable occupancy policy. including: size of the bedrooms and unit; age of the children; configuration of the unit; physical limitations of the housing; state or local government occupancy standards; and other relevant factors. When these other factors are considered, two people per bedroom may be unreasonably restrictive. (Fair housing advocates generally assert that children under the age of two years of age cannot be counted as a person in determining occupancy.)
These various codes, statutes, and guidance were passed by different governing bodies, at different times, and for different intents. As a result, under some circumstances they conflict.
If you have additional questions about the specifics of your circumstance, or if you believe you have been discriminated against in housing, contact the Austin Tenants Council at 512-474-7006.
Tenants have a responsibility to pay rent to their landlord as stipulated in the lease whether the lease is oral or written. Either type of lease is a contract binding on both parties. The information in this brochure is provided in an effort to clarify the obligation of tenants to follow the terms of their lease in relation to paying rent.
HOW TO PAY RENT
Tenants should be clear about the terms of how the landlord will accept the rent payments. Is it permissible to mail the money? Should rent be hand-delivered? Can you drop your payment in the landlord’s mailbox or on-site management drop slot?
If a lease allows rent to be mailed to the landlord and the lease does not state that rent must be received within a grace period, rent is considered paid on the date of the postmark (that is, rent is paid if it is postmarked on the last day it is due). With Texas Apartment Association and Texas Association of Realtors leases, the postmark is not considered timely payment. The TAA and TAR leases state that rent must be received within the grace period (not after).
The same rule applies if the lease does not say whether rent can be mailed or not and a pattern of mailing is established. Under these circumstances, the tenant is permitted to mail the rent unless a written notice is received from the landlord indicating that the payment arrangements will change in some way.
The risk of placing any payment in the drop box or mailbox is that it could be lost, misplaced, or stolen. The burden of proof would be on the tenant to show how or when the rent was paid. Therefore, the tenant should bring a witness when the money is deposited. For example, two neighbors could witness each other’s rent payment.
If a tenant uses cash or a money order for the rent payment, a receipt should be obtained from the landlord at the time rent is paid. In fact, the landlord is required by Section 92.011 of the Texas Property Code to provide a written receipt for a cash rental payment. If the landlord violates this law, the tenant can recover $500 or one month’s rent, whichever is greater, plus court costs and attorney’s fees.
If a tenant pays with a money order, the money order should include the tenant’s name, address, and the month of the rent payment. If payment is made through the mail or drop box, the tenant should get a written acknowledgment as soon as possible that the landlord received the money so that there is never a question about whether rent was paid by the due date.
IF RENT IS LATE
The landlord has the option to follow legal means for eviction for nonpayment of rent or late payment of rent if not paid on or before the due date. Though it may be difficult for the landlord to evict a tenant for paying rent on the second day of the month, the best policy for a tenant is to be in the habit of paying rent by the date due.
If the rent is going to be late, the tenant should contact the landlord and attempt to reach an agreement with the landlord to get the rent current. It is best for the tenant to get a clear agreement in writing that the landlord will accept the late rent on a certain date and, in exchange, will allow the tenant to continue under the original lease agreement. This is a protection for the tenant because if rent is paid late and accepted, the landlord can still proceed with the eviction process for breach of lease due to late payment of rent. There is no requirement that a landlord give a tenant a grace period to pay delinquent rent.
If the landlord accepts late rent before giving the tenant written notice to vacate for failing to pay rent on time, the landlord gives up the right to evict for late payment of rent.
The landlord may be prevented from evicting a tenant if a pattern is established of accepting late payments from the tenant. The tenant’s proof would be the dated rent receipts. For the landlord to require the tenant to begin paying on the due date, the landlord should clearly inform the tenant that the landlord will not accept future late payments. Thereafter, if rent is paid late, the landlord could follow the eviction process for breach of lease due to late payment of rent. The exception to this would be if there is a “no waiver” clause in the lease agreement which would explain that the landlord can accept rent after due date. But in accepting it, the landlord would not waive his right to evict for breach of lease for late payment of rent even though the tenant may have had a pattern of paying late rent.
Most lease agreements state that rent is due on a specific date. Sometimes, the actual due date and the date when late fees will begin to be charged is different. The Texas Property Code, Section 92.019, states that a landlord may not charge a tenant a late fee for failing to pay rent unless:
Notice of the fee is included in a written lease;
The late fee is a reasonable estimate of damages to the landlord as a result of the late payment of rent; and
The rent has remained unpaid one full day after the date the rent was originally due. This means that if the lease states that rent is due on the first, the landlord could not charge a late fee until the third.
If the landlord violates this law, the tenant can recover $100, three times the amount of the late fee wrongfully charged, and reasonable attorney’s fees.
Any provision in the rental lease that purports to waive a right or exempt a party from liability or duty of the late fee requirements is void.
IF LANDLORD REFUSES TO ACCEPT RENT
If the landlord refuses to accept rent, the tenant should make a second attempt to pay. The second attempt should be on the same day if possible. The tenant should be accompanied by a witness if there was not one present the first time. After second refusal, the tenant should mail the rent payment by certified mail, return receipt requested. Should the landlord attempt to evict for nonpayment, at the time of the court hearing, the witness and the return receipt from the post office could serve as proof the tenant made a second and/or third attempt to pay rent.
PROOF OF RENT PAYMENT(S)
Keep a file of all your rent receipts as documentation that your rent is always paid and current. If the landlord will not provide you with receipt(s) for rent payments, write the receipt(s) yourself and obtain the landlord’s signature on those receipts for your records.
Repairs: The Tenant’s Right and the Landlord’s Duty
Tenants have the right to have any condition that threatens their health or safety repaired by the landlord. Subchapter B of Chapter 92 of the Texas Property Code (§92.051 – §92.061) describes the process a tenant must follow to enforce repair rights and provides specific remedies for a tenant if the landlord fails to make the repairs. By giving the proper notices, a tenant can obtain repair remedies as soon as legally possible. Those remedies, described below, depend on the repair problem.
One important exception to the landlord’s duty to repair exists in the law. The landlord does not have a duty to repair a condition caused by the tenant, household members, or the tenant’s guests, unless the condition was caused by normal wear and tear.
Conditions requiring repair fall into two categories: those that threaten the health or safety of an ordinary tenant and those that do not. An example of a condition that is not a threat to health or safety would be a non-working dishwasher or garbage disposal. Examples of conditions that are a threat to health or safety are plumbing stoppages, lack of hot water, electrical shorts, leaking roofs or ceilings, and rodent or bedbug infestations.
Can my landlord require renters' insurance in Texas?
Yes, landlords can require tenants to have a renters insurance policy. Can a landlord require renters' insurance in Texas? It can pay for damage from a fire or flood, as well as cover personal belongings. It's a contractual issue and what a landlord says usually goes. And they can ask tenants to have a minimum amount of insurance coverage.
For tenants living anywhere in Texas, the landlord must provide:
A dwelling that is decent, safe, and sanitary;
Repairs of conditions that threaten the health or safety of a tenant;
Hot water at a minimum temperature of 110° Fahrenheit;
Smoke detectors; and
Secure locks on all doors and windows, including a keyless bolting device. See ATC’s brochure, Locks and Other Security Devices, for a complete list of security devices required by law.
The City of Austin Housing Code specifically requires that all residential dwellings in the City of Austin have:
Heating facilities capable of maintaining a room temperature of 68° Fahrenheit;
Hot water supplied to plumbing fixtures at a temperature of not less than 110° Fahrenheit; and
A kitchen sink, a shower or bathtub, a toilet, and hot and cold water.
If the rental unit does not meet state/city standards or other conditions exist which threaten the health or safety of a tenant, the procedure described below must be used to obtain repairs if the landlord has not responded to less formal requests for repairs, such as an email, text, or telephone call. Following the proper process of requesting repairs is essential to obtaining the repairs or to exercising your lawful remedies if the landlord fails to make them. You should read these instructions carefully before requesting repairs.
Procedure for Requesting Health and Safety Repairs
All rent must be paid.
A tenant who is behind in rent or withholds rent because repairs have not been made may be evicted and forfeits all rights to have repairs made until the rent is paid. The only time a tenant may withhold rent is when the tenant has given the required notices and is exercising the right to repair and deduct. See the section, “Repair and Deduct.”
If a landlord does not respond to telephone or oral repair requests, the tenant should send a letter by certified mail, return receipt requested, by registered mail, or by a private delivery service that allows tracking of the delivery. The letter should include the following:
The tenant’s name and address;
A description of the repair problem;
A statement that the problem is a threat to health or safety;
A request that the repairs begin in a reasonable amount of time (seven days is presumed to be a reasonable amount of time for most repairs. If there is an emergency, then as little as 24 hours notice can be given);
A request for a written response if the work cannot be completed within seven days; and
The Austin Tenants’ Council recommends that you also send the notice by regular first class mail in case the landlord chooses not to claim certified mail.
If the landlord has not made a diligent effort to make the repairs within seven days after receipt of the written repair request, a tenant should write a second and final notice that is the same as the first.
DELIVERY OF REPAIR REQUESTS
Certified Mail, Registered Mail or Trackable Method via Private Carrier
For a repair that is a threat to the health and safety of a tenant, the law only requires a tenant to send one repair request, explicitly provided that it is delivered by certified mail, by registered mail, or by a private delivery service that allows tracking of the delivery.
Nevertheless, it is strongly recommended that a tenant send a second letter as described in STEP 3.
If the letter is delivered in person or by regular first class mail, the law requires that the tenant give the landlord a second notice after a reasonable amount of time (seven days) has expired. When delivering a repair notice by hand, the tenant should always take a witness who is 18 years of age or older and can attest to the fact that the letter was delivered. Try to get a written receipt that is dated and signed by a property agent to prove the landlord received the repair request.
Notice by Email
Email is not necessarily considered written notice and may not satisfy the requirement for giving a repair request. Many problems can arise using email to communicate a repair problem to your landlord. For example, it is difficult to prove that the intended recipient received your email, especially if the person does not reply. Sending a written letter is always the best way to request a repair. If, however, the landlord requires or mandates that the tenant send repair requests by email, the landlord has likely waived the right to receipt of repair notices in writing.
Proof of Delivery
Having proof that you sent the repair request and that it was received is critical. Always keep copies of your repair request notices and any receipts from the post office and/or from the landlord.
After the landlord has been notified of the needed repair and failed to make a diligent effort to remedy the problem within seven days, the tenant may file a lawsuit in justice court without an attorney and seek an order for the repair, reduction in the rent, civil penalty of $500 plus one month’s rent, actual damages, and reasonable attorney’s fees if an attorney is hired.
Always consult an attorney if you have legal concerns.
The Austin Tenants' Council provides this Self-Help Repair Packet, which includes form letters that may be used to write proper repair requests. You should carefully read the instructions.
YOUR REMEDIES IF THE LANDLORD DOES NOT MAKE THE REPAIRS
If the required notices have been sent, and the landlord has not made a diligent effort to make health and safety repairs within a reasonable amount of time (seven days), then the tenant may, according to the Texas Property Code:
1. Terminate the lease and move.
The tenant should give the landlord a written notice that the tenant is terminating the lease. The notice should give a date by which the tenant will move out. The tenant will be entitled to a refund of the security deposit in accordance with the law and to a refund of the rent for the remainder of the month after the tenant leaves. The tenant may also deduct the security deposit from the prorated rent. A tenant who moves is also entitled to the other remedies listed below, except the court order directing repairs and the court-ordered partial rent reduction when taking the landlord to court.
2.Take the landlord to justice, county, or district court where an order may be issued:
Directing the landlord to make repairs;
Granting partial rent reduction back to the date of the first request for repair;
Awarding the tenant one month’s rent plus $500;
Awarding the tenant money for actual damages, reasonable attorney’s fees and court costs.
3. Repair and deduct as outlined below.
The repair and deduct law is complicated, and ATC strongly recommends that a tenant get further assistance before exercising this remedy. A tenant should contact either the Austin Tenants’ Council or an attorney.
To exercise the right to repair and deduct, two things must be done:
The tenant must have a local housing, building, or health official or other official having jurisdiction notify the landlord in writing that the conditions affect the material health or safety of the tenant (but see exceptions described below); and
The tenant must deliver the required notices requesting the repair as outlined above. However, the final notice given to the landlord must state the tenant's intent to exercise the right to repair and deduct and include a reasonable description of the intended repairs. (NOTE: If the tenant sends the first request for repair by certified, registered or trackable private mail carrier, then a second notice is not required.) The first notice sent via certified, registered or trackable private mail carrier is also the final notice and must state the tenant's intent to exercise the right to repair and deduct and include a reasonable description of the intended repairs.
In Austin, the official having jurisdiction is usually a building inspector from the City of Austin’s Building Inspection Department. (See below: “For Assistance in Enforcing Repair Rights.”) If these conditions are met and the landlord still fails to make the repair or remedy within a reasonable time, a tenant may have the repairs made and deduct the costs from the monthly rent by using the following procedure.
The tenant’s deduction for the cost of the repair or remedy may not exceed the amount of one month’s rent or $500, whichever is greater. If the tenant’s rent is subsidized in whole or in part by a governmental agency, the deduction limitation of one month’s rent shall mean the fair market rent of the dwelling and not the actual amount the tenant pays.
In two situations a tenant may exercise the right to repair and deduct without having an official send the landlord notice that the condition is a threat to health or safety:
If the landlord has failed to remedy the backup or overflow of raw sewage inside the tenant’s dwelling or the flooding from broken pipes or natural drainage inside the dwelling; or
If the landlord has agreed to supply potable (drinking) water to the tenant’s dwelling and the water service to the dwelling has totally ceased.
If the condition involves sewage or flooding, the tenant may repair and deduct immediately after giving notice of intent to repair and deduct. If the condition involves a lack of water, the tenant may repair and deduct if the landlord fails to repair the condition within three days following delivery of the tenant’s notice of intent to repair.
If the condition involves inadequate heat or cooled air, the tenant may repair and deduct three days after giving notice of intent to repair and deduct (provided that an official has also sent the landlord notice that the condition is a threat to health or safety). The tenant may give only one notice provided the notice is sent by certified, registered or trackable private mail carrier. The notice must inform the landlord of the tenant’s intent to repair and deduct.
Repairs must be made by a company, contractor, or repairman listed in the yellow pages or business pages of the telephone directory or in the classified advertising section of a local newspaper. Repairs may not be made by the tenant, the tenant’s immediate family, the tenant’s employer or employees, or a company in which the tenant has an interest.
Repairs must also be made in compliance with applicable building codes, including obtaining a building permit when required. When deducting the cost of repairs from the rent payment, the tenant shall furnish the landlord, along with the balance of the rent, a copy of the repair bill and the receipt for its payment.
If a landlord has filed an insurance claim with an insurer because the needed repairs are as a result of an insured casualty loss, such as fire, smoke, hail, explosion, or something similar, the landlord does not have to make the repair until the landlord receives the insurance proceeds.
If the casualty loss is not caused by the negligence or fault of the tenant or a guest of the tenant and the rental property is totally unusable for residential purposes, either the tenant or the landlord may terminate the lease by giving written notice any time before repairs are completed. Casualty loss situations can be complicated. If you are considering terminating your lease under Casualty Loss, it is strongly advised that that you schedule a walk-in appointment with Austin Tenants’ Council or seek the advice of an attorney.
A Landlord May Not Retaliate
Subchapter H of Chapter 92 of the Texas Property Code (§92.331 – §92.335) prohibits a landlord from retaliating against a tenant by filing an eviction proceeding, depriving the tenant of the use of the premises, decreasing services to the tenant, increasing the tenant's rent, terminating the tenant's lease, or in bad faith, interfering with the tenant's rights under the lease for six months from the time the tenant, in good faith, takes any of the following actions:
Gives a landlord a notice to repair or exercises a remedy under Chapter 92 of the Texas Property Code;
Attempts to exercise against a landlord some right or remedy granted to the tenant by lease, municipal ordinance, or federal or state statute;
Complains to a government entity, a public utility, or a civic or nonprofit agency about a building or housing code violation or utility problem; or
Establishes, attempts to establish or participates in a tenant organization.
Retaliation by the landlord is a defense to an eviction. However, the landlord may evict the tenant if the landlord can prove that the eviction is not in retaliation (e.g. if the tenant does not pay full rent or has damaged the property). Also, the landlord may increase the rent or decrease services if it is part of a regular pattern of rent increases or service reductions for all units in a multi-dwelling project.
If a court finds that a landlord retaliated against a tenant, the tenant may recover one month’s rent plus $500; actual damages including moving costs if the tenant has moved; and court costs and reasonable attorney’s fees less any rent or other sums the tenant owes the landlord.
In Austin, a landlord who retaliates against a tenant for calling the building inspection department may also face criminal penalties under the City’s housing code.
For Assistance in Enforcing Repair Rights
If the landlord does not respond to repair requests, a tenant may want to call the local building inspection department for an inspection of the rental unit. A building inspector will be sent to investigate complaints. The inspector will then send an assessment of conditions to the owner. The tenant should request a copy of this report from the building inspector. In Austin, call the inspection department at 311 or 512-974-CODE or 512-974-2633, and an inspection will be performed free of charge. The local health department inspector and/or fire marshal may also be contacted, if appropriate.
The Austin Tenants’ Council has two programs which assist tenants who live in Austin in obtaining repairs:
The Telephone Counseling Program advises tenants and landlords about their rights in Texas. The telephone number for the counseling line is 512-474-1961.
The Repair Mediation is a mediation program for low- to moderate-income tenants. Repair Mediation provides assistance to tenants who need repairs which are a threat to their health or safety. To qualify for Repair Mediation, a tenant must be income eligible and current on rent. Through this program, a tenant will be assisted in enforcing repair rights under the Texas Property Code repair law. The telephone number for this program is 512-474-7006.
The Texas Property Code, §92.101 – §92.109, protects the right of renters regarding their security deposit. Unfortunately, many tenants are unaware of this law and do not receive a proper refund of their deposit. The law states that the landlord has 30 days after the tenant surrenders the premises to refund the security deposit. If the tenant fulfills the lease contract and leaves the unit in good condition except for normal wear and tear, the security deposit is always refundable; a tenant can never waive their right to a refund of the security deposit. However, the landlord can keep part of the deposit but only if the non-refundable portion has a different name, such as a “redecorating fee” or a “make-ready fee.” If the landlord retains all or part of a security deposit, the landlord is required to give to the tenant a written description and itemized list of all deductions providing the tenant meets certain conditions. These conditions are:
1. Rent Owed? A landlord is not required to give the tenant a description and itemized list of deductions if the tenant owes rent when the tenant moves out and there is no controversy over the amount of rent owed. If the landlord claims the tenant owes rent and the tenant disputes the claim, the tenant should make a written request for the deposit which states the tenant’s position about the rent.
2. Forwarding Address. The landlord is not required to return a deposit until 30 days after the tenant moves out and only if the tenant gives the landlord the tenant’s forwarding address in writing. However, the tenant does not forfeit the right to a refund of the security deposit or to receive a description of damages just because the tenant forgot to turn in a written forwarding address. Send the forwarding address certified mail, return receipt requested.
Preventative Steps to Take to Ensure a Deposit Return
A tenant must meet all of the above conditions to ensure a refund of the deposit, but meeting those conditions is not all the tenant should do. The chances of receiving return of the deposit will be increased if the following suggestions are also followed:
Move-In Inventory Inspection. Arguments often arise over what condition the rental unit was in when the tenant moved in, so preventative measures should be taken. The tenant should make a list of everything that is broken, stained, defective, or damaged when moving in. The tenant should sign the list and ask the landlord to sign it, too. If the landlord will not cooperate, taking pictures, video and/or getting an impartial witness to view the apartment during the move-in is an alternative. The tenant should send a copy of the list to the landlord and keep a copy.
Move-Out Notice. A lease may require that the tenant give the landlord 30 or 60 days' written notice prior to move-out to get the security deposit back. The Texas Property Code says that advance notice of move-out can be a condition for return of the deposit if the requirement for advance notice is written into a lease and is underlined or in conspicuous bold print. Even if the lease does not require it, giving the landlord notice prior to moving is always a good idea. Tenants should carefully review their leases three months before they intend to move since many landlords require 60 days' notice.
Move-Out Inventory Inspection. When the tenant prepares to move, the apartment should be cleaned and the landlord asked to appear for an inspection. The tenant should fill out another inventory form, similar to the move-in inventory. If the landlord has any disputes, the tenant should negotiate them on the spot. If the landlord is unwilling or unable to perform a walk-through, it is still important for the tenant to make an inventory list. The tenant should have a friend act as a witness to the condition of the premises if the landlord is not present or if the landlord does not sign the inventory list. The tenant can also take pictures or video to have further proof of the condition of the premises. These inventory lists are important evidence if the tenant and landlord end up in a dispute or in court.
Turn in the Keys. The keys should be turned in on the exact day the tenant vacates the premises. If the keys are turned in later, the landlord may be able to charge the tenant additional rent or other charges under the lease. A tenant’s actual move-out date is often considered to be when the keys are turned in.
What Can the Landlord Deduct From the Security Deposit?
A landlord cannot legally deduct for normal wear and tear. This refers to deterioration which occurs during regular, daily, intended use of the rental unit, for example nail holes in the walls from pictures or paintings. Damages caused by negligence, carelessness, accidents, or abuse of the premises by the tenant or the tenant’s guests are not normal wear and tear.
If the tenant moves out of an apartment leaving Kool-Aid stains on the carpet, a three-inch hole in the bathroom wall, and sacks of garbage in the carport (which were not there when the tenant moved in), these could be considered damages and the landlord is entitled to use all or part of the deposit to make these repairs. However, if the tenant moves out of an apartment leaving it in the same condition as when the tenant moved in, except for normal wear and tear, and no money is owed the landlord, the tenant should get all of the deposit back.
Sometimes landlords will take deductions which are questionable. For example, if a tenant lived in a house for two years and left a cigarette burn in the 15-year-old living room carpet, the landlord should not charge the tenant the full cost for replacing the carpet throughout the house. The tenant could challenge this deduction for several reasons: the carpet was not new when the tenant moved in and the tenant damaged only the carpet in one room, not the whole house.
Deductions From the Deposit
If the landlord makes any deductions from the deposit, a written, itemized accounting of how much is being charged for each item must be sent to the tenant. If the landlord fails to provide such an accounting within 30 days after the tenant moves out, the landlord may forfeit the right to withhold any part of the deposit. Furthermore, the deductions taken from the deposit must be for actual damages suffered by the landlord.
How to Dispute Deposit Deductions
If a tenant receives a list of deductions, it is possible to dispute items on that list. The tenant should address the deductions in a letter sent to the landlord. The demand letter should include a response to each of the deductions, explaining which charges are being disputed and why. The tenant should keep a copy of the letter and send the original by certified mail, return receipt requested.
If the tenant receives a partial refund along with the list of deductions and wants to dispute some or all of the deductions, the tenant may want to refrain from cashing the check. If the tenant must cash the check then the tenant should tell the landlord in the letter that even though the check has been cashed, it does not mean the tenant agrees with the amount of the check
What if the Tenant Breaks the Lease or Does Not Move in After Paying a Deposit?
A tenant does not automatically forfeit the deposit for breaking a lease, but the deposit can be used to cover costs for which the tenant is liable. If a tenant must break a lease, doing everything possible to help the landlord re-rent the premises will reduce the tenant’s liability.
The landlord may have grounds to keep some or all of a deposit given to take a rental unit off the market, based on losses the landlord suffered. If a tenant has entered into a lease with a landlord and paid a security deposit or prepaid rent and does not move into the unit, the tenant is entitled to a full refund if the tenant finds a replacement tenant satisfactory to the landlord who moves in by the date the lease was to begin. On the other hand, if the landlord secures the replacement tenant, the landlord may deduct from the security deposit or rent prepayment any amount agreed to in the lease as a lease cancellation fee OR actual expenses incurred by the landlord, including a reasonable amount for the landlord’s time in finding a replacement tenant.
Once the property is rented to someone else, the tenant is not liable for additional rent unless the unit is sublet. If the property stands vacant for several days, weeks, or months, the landlord will be able to deduct from the deposit the actual amount of rent the landlord lost until a new tenant starts paying. If the property remains vacant for a period that is longer than is covered by the security deposit, then the landlord can hold the tenant liable for the lost rent covering the lease term until someone does move in so long as the landlord makes reasonable efforts to lease the property. The landlord can also charge for re-renting costs such as advertising.
Some leases have a reletting fee written into the contract. This fee can be as much as one month’s rent. A tenant may successfully challenge his landlord about this arbitrary amount based on the fact that security deposits are meant to be used to cover actual financial losses. If a landlord spends the equivalent of the reletting fee to re-rent the apartment, then that is a legitimate charge. However, if a landlord runs a $50 ad, re-rents the place quickly, and loses no rent but tries to charge the tenant the whole reletting fee, that may be considered a penalty and unenforceable under Texas law.
Some leases state that the tenant “forfeits” or loses the security deposit if the lease is breached or broken. Just because something is written in a lease does not mean that it is enforceable under Texas property law. If the tenant must break a lease and wants advice, call the Austin Tenants’ Council (ATC) or consult an attorney for more information.
Can the Deposit Be Used in Place of the Last Month’s Rent?
The security deposit law also contains a protection for landlords. Normally, the tenant cannot deduct the security deposit from the last month’s rent without the landlord’s written permission. If the tenant withholds part of the rent and claims that the security deposit makes up the balance, that action will be in violation of the law. The landlord can sue the tenant for three times the amount wrongfully withheld plus court costs and reasonable attorney’s fees. However, the court must find that the tenant acted in bad faith to award the landlord these damages.
The only time a tenant may use the security deposit in place of the last month’s rent is when the tenant terminates the lease under the repair law. See ATC’s brochure, Repairs: The Tenant’s Rights and the Landlord’s Responsibilities, for more information.
In the event of foreclosure or bankruptcy of the landlord, a tenant’s claim to the security deposit takes priority over any creditor or trustee claim to the landlord’s assets. See ATC’s brochure, Foreclosures for more information.
What if Rental Unit Changes Ownership?
If a new owner buys a house or apartment and it is tenant-occupied at the time, all lease agreements and deposits should be transferred from the previous owner to the new owner. This means the new owner will be responsible for the return of the security deposit. However, the old owner remains liable for a security deposit until the new owner gives the tenant a statement acknowledging receipt of the deposit. Unless there are records of the move-in inventory, the new owner will probably not be able to establish the condition of the unit when the tenant moved in. Therefore, it may be difficult for a new owner to deduct damages from the tenant’s security deposit. The new owner should not keep any part of the deposit for damages unless the new owner can prove that the tenant damaged the unit.
The Texas Property Code does not address pet deposits but it is assumed the same rules apply. One difference between a security deposit and a pet deposit is that the landlord can legally withhold all or part of the pet deposit if agreed in the lease contract that the pet deposit is non-refundable
If the security deposit or itemized list is not mailed within 30 days after the tenant vacates the premises and turns in a forwarding address, the tenant has several options. The tenant can attempt to recover the deposit through mediation or the tenant can sue the landlord. A landlord can be held liable for $100, three times the amount of the deposit which is wrongfully withheld, reasonable attorney’s fees, and court costs if the tenant can show the landlord acted in bad faith. However, we suggest that the tenant first give the landlord an opportunity to pay the money owed by sending a demand letter by certified mail.
ATC has form letters or they can write their own letter. The letter should include the tenant’s current and previous addresses, the date the premises were vacated, the amount of the security deposit, and a statement that if the deposit is not returned within 10 days from the day the landlord receives the letter the tenant will pursue legal remedies.
Which Court Is the Best?
When less than $10,000 is involved, the tenant can sue without a lawyer by going to the local justice of the peace office. One cannot waive part of an amount due to get within the jurisdiction of a particular court.
Within the justice of the peace office are two courts: justice court and small claims court. The jurisdiction of these two courts overlap. The major difference is that small claims court is less formal and the rules of procedure and evidence are relaxed. Justice court is governed by the Texas Rules of Civil Procedure and Texas Rules of Evidence; it is much more formal.
Do not be intimidated by the prospect of going to court. The forms that must be filled out are self-explanatory. The staff of the justice of peace office can give you the proper forms, but they will not offer any legal advice. Soon after the suit is filed and the landlord is served with a copy, a hearing will be set. The hearing will take about an hour or so, but plan on several hours in case there is a delay. A tenant may also pick up ATC’s brochure, Filing Suit in Small Claims Court, for more useful information.
In Travis County, the filing fee is $92 ($27 filing fee and $65 service fee). For an extra $5, a jury trial can be requested, and for $65, a witness can be subpoenaed. (These costs may vary from court to court.)
In court, the major problem the judge faces is determining which side is right based on the evidence presented in court. The tenant should bring copies of the lease, deposit receipts, cancelled checks, the move-in and move-out inventories, the letter given to the landlord with the forwarding address, the demand letter, and any other materials that will be helpful in providing evidence in the case. In addition, any witnesses that are important to the case must be present.
Is an Attorney Necessary?
Although it is not necessary to have an attorney in justice court, the tenant will be at a disadvantage if the landlord has an attorney. It is not impossible for the tenant to win, though, if the tenant has evidence and witnesses as indicated above. If the tenant decides to hire an attorney and wins the suit, the court can also award attorney’s fees if the landlord acted in bad faith or the lease provides for attorney’s fees to the prevailing party. If unsure, the tenant can always obtain legal advice from an attorney before pursuing the matter. Keep in mind that the judge will not treat a case differently because someone is or is not represented by an attorney.
All rental units including apartments, duplexes, condos, and single-family homes must have smoke detectors as required by the Texas Property Code §92.251 – §92.262, Subchapter F.
How Many Smoke Detectors Are Required?
At least one smoke detector must be installed outside of each bedroom. However, if bedrooms are off of the same corridor, the landlord may install instead at least one smoke detector in that corridor in the immediate vicinity of the bedrooms. If at least one bedroom is located on a level above the living and cooking area, the smoke detector for the bedrooms must be placed in the center of the ceiling directly above the top of the stairway. Efficiency apartments must have one smoke detector inside the unit.
How Can a Tenant Get a Smoke Detector?
The smoke detectors should be in place before the tenant moves in. If they are not, a landlord must install one when a tenant makes a request for the landlord to do so. A written lease can require that the request be in writing. Because verbal requests are difficult to document, it is usually best to make requests in writing whether or not the lease requires it.
The Landlord Must Inspect or Repair
The landlord is supposed to inspect and test any smoke detector when a tenant first moves in. After that, the landlord must inspect or test the smoke detector whenever the tenant requests it or gives notice of a problem. The lease may require that the request or notice be in writing, but as stated before, it is usually best to put all requests in writing.
There are also limitations on the obligation of a landlord to inspect or repair a smoke detector. If damage or malfunction to the smoke detector is caused by the tenant, friends, or guests, the landlord is not required to repair or replace the damaged smoke detector unless the tenant pays in advance for reasonable cost of repair or replacement.
What if the Landlord Refuses to Install One?
If the landlord does not install, inspect, or repair the required smoke detector within seven days of receiving a written request and notification that the tenant may exercise rights under the Smoke Detector Subchapter of the Texas Property Code, the tenant may exercise certain legal remedies.
What Are the Remedies for the Tenant?
If the landlord does not install, inspect, or repair within seven days of receiving the written request, a tenant can go to court and the court can order the landlord to install, inspect, or repair the requested smoke detector. The court can also order the landlord to pay the tenant any damages suffered as a result of the landlord’s violation, a civil penalty of one month’s rent, plus $100, and court costs and attorney’s fees;
A tenant can terminate the lease and move out.
A tenant can be held liable for resulting damages if the tenant removes a battery from a smoke detector without immediately replacing it with a working battery or knowingly disconnects or intentionally damages a smoke detector, causing it to malfunction. Additionally, a lease between the landlord and tenant may allow the landlord to seek a court order directing the tenant to comply with the notice and to pursue civil penalties of one month’s rent, plus $100, plus attorney’s fees and court costs. This lease clause must be in underlined or bold print, and the landlord must give the tenant a separate seven-day written notice to correct the situation before the landlord can go to court.
What Else Does the Law Say?
The tenant must have the rent paid in full when requesting installation or inspection of a smoke detector to hold the landlord liable if the landlord does not act on the request.
If either the tenant or the landlord files suit in court to harass the other party, they can be held liable for a civil penalty of one month’s rent plus $100, plus attorney’s fees and court costs.
The tenant cannot waive (give up) the right to have a smoke detector, even in a written lease.
The tenant is responsible for replacing batteries if the smoke detector was in good working order when the tenant took possession.
If requested by a tenant as an accommodation for a person with a hearing-impairment or as required by law as a reasonable accommodation for a person with a hearing-impairment, a smoke detector must, in addition to complying with all other requirements, be capable of alerting a hearing-impaired person in the bedrooms it serves.