I have found that landlords generally face the same set of issues and have the same set of questions pertaining to their rights, duties and obligations as landlords under Texas law. The answers to these questions depend on whether residential tenants or commercial tenants are involved. Although commercial and residential property ownership and operation have some similarities, the differences are numerous and diverse enough to justify separate treatment for each area. This article is intended to discuss issues related to commercial property with commercial tenants only. This article is my attempt to create a quick and very general reference guide on the rights, duties and obligations of commercial landlords and operators under the Texas Property Code. It is by no means complete, but hopefully is informative enough to assist the reader in asking informed questions of legal counsel and thus be more efficient and economical while consulting legal counsel.
You should not take this article as legal advice, and I strongly urge you to seek competent legal advice for your specific situation. The Texas legislature updates and passes new laws relating to landlord/tenant issues on a regular basis. In addition, Texas courts regularly interpret these laws. Thus, the laws discussed in this article are in effect as of December 2005. I have not assumed any duty or obligation to update this article beyond this date.
I. Duty to Mitigate
If a tenant abandons the leased premises in breach of the lease, the landlord has the duty to mitigate (lessen) the damages that the landlord would experience as a result of the abandonment. Thus, the landlord should not let the premises lie vacant in hopes of being able to recover lost rents from the tenant. This duty to mitigate damages may not be waived by the tenant, so any provision in the lease that tries to waive this duty or exempt the landlord from liability is void.
II. Security Deposit
A security deposit is any advance of money, other than a rental application deposit or an advance payment of rent, that is intended primarily to secure performance under a lease.
III. Retention of Security Deposit
Before returning the security deposit, the landlord may deduct from the deposit damages or charges for which the tenant is obligated under the lease or resulting from a breach of the lease. However, normal wear and tear (does not include deterioration that results from negligence, carelessness, accident or abuse) may not be withheld from the security deposit.
If the landlord retains any portion of the security deposit, the landlord must refund the balance of the security deposit and give the tenant a written description and itemized list of all deductions. However, this description and itemized list is not required if the tenant owes rent and no controversy exists concerning the amount of rent owed. The refund and written description and itemized list of all deductions is not required until the tenant gives the landlord a written statement of the tenant’s forwarding address for the purpose of refunding the security deposit. However, failure to provide a forwarding address does not cause the tenant to forfeit its right to receive a refund or a description of deductions.
IV. Refund of Security Deposit
A landlord must refund the security deposit not later than the 60th day after the date the tenant surrenders the premises and provides notice of the tenant’s forwarding address.
V. Change of Landlord/Owner and the Security Deposit
The new owner or landlord of the leased premises is liable for the return of the security deposit starting from the date title to the leased premises is acquired, except where the new owner acquired the premises by foreclosure through a real estate mortgage. However, the former landlord or owner remains liable for the security deposit received while the person was the owner or landlord until the new owner delivers to the tenant a signed statement acknowledging that the new owner has received and is responsible for the tenant’s security deposit and specifying the exact dollar amount of the deposit.
VI. Liability of Landlord for Security Deposit
A landlord who in bad faith retains a security deposit is liable for an amount equal to the sum of $100, three times the portion of the security deposit wrongfully withheld, and the tenant’s reasonable attorneys fees incurred in a suit to recover the deposit. It is presumed that a landlord who fails to return a security deposit or to provide a written description and itemized list of deductions on or before the 60th day after the date the tenant surrenders possession is acting in bad faith.
VII. Preventing Access to Leased Premises
A landlord may not intentionally prevent a tenant from entering the leased premises except with permission of the court unless such prevention results from (i) bona fide repairs, construction or an emergency, (ii) removing the contents of the leased premises abandoned by a tenant or (iii) changing the door locks of a tenant who is delinquent in paying at least a part of the rent. The lease may alter this provision.
VIII. Changing Lock Due to Delinquent Payments
If a landlord changes the door lock due to delinquent rent payments, the landlord must place a written notice on the tenant’s front door stating the name and address or telephone number of the individual or company from which the new key may be obtained. The new key is only required to be provided during the tenant’s regular business hours and only if the tenant pays the delinquent rent. The lease may alter this provision.
IX. Landlord’s Removal of Property After Abandonment by the Tenant
A landlord may remove and store any property of a tenant that remains after the premises has been abandoned. The landlord may also dispose of the stored property if the tenant does not claim the property within 60 days after the date the property is stored. The landlord must deliver by certified mail to the tenant at the tenant’s last known address a notice stating that the landlord may dispose of the tenant’s property if the tenant does not claim the property within 60 days after the date the property is stored. A lease may alter this provision.
X. Abandonment by the Tenant
A tenant is presumed to have abandoned the premises if goods, equipment or other property, in a substantial enough amount to indicate a probable intent to abandon the premises, is being or has been removed from the premises and the removal is not within the normal course of the tenant’s business. The lease may alter this provision.
XI. Interruption of Utilities
If the tenant pays for utility services directly to the utilities companies, the landlord may not interrupt or cause the interruption of such services unless the interruption results from bona fide repairs, construction or an emergency. A lease may alter this provision.
XII. Removal of Doors, Windows, Locks, Hinges, Etc.
A landlord may not remove a door, window, attic hatchway, lock, hinge, hinge pin, doorknob or other mechanism connected to a door, window or attic hatchway cover from the leased premises. Additionally, a landlord may not remove furniture, fixtures or appliances furnished by the landlord from the leased premises. However, the landlord may remove these items for a bona fide repair or replacement, which must be promptly performed. A lease may alter this provision.
XIII. Landlord May Terminate Lease Due to Public Indecency Conviction of Tenant
A landlord may terminate a lease signed or renewed after June 15, 1981 if the tenant or occupant uses the property for an activity for which the tenant, occupant or any of their agent or employee is convicted of public indecency (prostitution, promotion of prostitution, display or distribution of obscene materials, sexual acts with persons under the age of 18, etc.) and such person has exhausted or abandoned all avenues of direct appeal from the conviction. Notice of termination must be by written notice within six months after the right to terminate arises. The landlord obtains the right to possess the property on the 10th day after the date of notice is given.
XIV. Notice Requirement Prior to Eviction
The landlord must give a tenant who defaults or holds over beyond the end of the term at least three day’s written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties contracted for a shorter or longer period of time in a written lease or agreement.
The notice to vacate must be given in person or by mail at the premises in question. If notice is delivered in person, it may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail, by registered mail or by certified mail, return receipt requested, to the premises in question. The notice period starts from the day on which the notice is delivered.
Copyright 2005, Tri Nguyen
By: Tri Nguyen
Posts Tagged ‘Provision’
Texas Real Property Law for Commercial Landlords
March 16th, 2010If Congress Shall Make Any Law?
August 24th, 2009Congresswoman Michele Bachmann is rocketing up the Obama Administration’s enemies list because she is asking questions no liberal wants asked and making points they certainly do not want made. Yes indeed she is. For while asking questions of Timothy, smartest man in the room, America cannot survive without him at Treasury, Geithner about past actions and current plans to allow the federal government more power to seize and manage the assets and contracts of businesses it deems, “too big to fail,” Ms. Bachmann no doubt caught the ear of Big Brother himself over in the White House. For you see, Ms. Bachmann did something that always catches the ears of liberals and lefty politicos busily scribbling words on to paper in order to secure themselves more and more power.
What is this thing she did? Why, she cited the Constitution of these United States. And for yet another brief moment in a growing long line of brief moments it became clear once again that Timothy Geithner was indeed not the smartest man in the room.
You could hear the uneasiness in Geithner’s voice as he was forced to attempt to answer an actual question of substance. You could also imagine at how at the same time as he was trolling for an answer in that vast, empty sea of a brain of his that he was making mental notes about who he would have to contact to make sure no such substantive questions would ever be raised again.
Here is how it went down and how Geithner struggled:
BACHMANN: “What provision in the Constitution could you point to … to give authority for the actions that have been taken by the Treasury since March of ‘08?”
GEITHNER: “Oh, well, the — the Congress legislated in the Emergency Economic Stabilization Act a range of very important new authorities.”
BACHMANN: “Sir, in the Constitution. What — what in the Constitution could you point to to — to give authority to the Treasury for the extraordinary actions that have been taken?”
GEITHNER: “Every action that the Treasury and the Fed and the FDIC is — is — has been using authority granted by this body — by this body, the Congress.”
BACHMANN: “And by — in the Constitution, what could you point to?”
GEITHNER: “Under the laws of the land, of course.”
Note that not once did Mr. Geithner ever actually answer the simple question posed to him. When asked to cite the Constitutional authority for any of the actions taken by the Treasury since early last year he simply responded that Congress had given the Treasury certain powers and that they are “under the laws of the land.” But his response is a non-response. The smartest man in the room was flabbergasted and unable to answer a question that he knew that if he answered truthfully would doom all the current, past and future plans of he and his fellow travelers. Perhaps he should have borrowed President Obama’s teleprompter and had his remarks prepared for him by a speech writer.
But let’s explore his non-answer answer further. Is citing Congress doing something good enough of an excuse? Is Congress’s power to make law absolute under the Constitution? Of course we all know that it is not. If it were then what powers would be reserved to the states and the people under the Tenth Amendment exactly?
Geithner’s response, had it been truthful, would have been that there was no such authority for the vast, vast, vast majority of what the Treasury has done in the last year. But to answer truthfully it would mean that he would have to admit that he and his fellow liberals, both Democratic Party socialists and Republican Party socialist-lites, had violated the Supreme Law of the Land. So truthful answers to these sorts of serious questions are never things you will get from the blowhards inside the beltway.
We all know that just because Congress makes a law that the law is not de facto Constitutional. If it were, no law would ever be stricken as being unconstitutional. But since many laws have been it puts the lie to any notion that just because Congress decrees from on high that the order should be accepted and obeyed. We can even go very absurd to prove this point if you like. If Congress were to, for example, pass a bill that stated all people who have blond hair and blue eyes were inferior and not subject to the same rights as people with other combinations of hair and eye colors would it be a Constitutional law? Even if everyone accepted the law would it still be Constitutional? No.
Now say that we do not have to worry about Congress being so absurd all you like. That is not the point. And besides we all know that many absurd laws have indeed come out of Congress. Add to that the fact that liberals throughout time and all over the world have espoused the same sort of social and economic philosophies and have indeed sought to treat people very differently based on how they looked . The point is that if Congress did make a law stating such it would not be Constitutional just because Congress made such a law.
But Mr. Geithner and the liberals in charge of our government probably have little to fear from the American public recognizing this fact. Because they know that most Americans do not have a clue what our Constitution says and that they will not understand the importance of this exchange between Geithner and Congresswoman Bachmann. Instead they will carry on in blissful ignorance as the nation burns and President Obama fiddles.
By: J.J. Jackson
