In its January 6, 2010 opinion in McDonald v. Claremore Apartment Homes, the Fourth Court of Appeals (San Antonio) upheld the Judgment of Eviction entered by Judge Paul Canales, sitting in the Bexar County Court at Law No. 5.
The Appeal involved claims by McDonald that the trial court erred in determining that she had not paid rent for several months in 2008, and that the attorneys' fees awarded to Claremeore were improper.
In overruling McDonald's claim, the Court of Appeals approved Canales' rejection of receipts from 2007 to indicate payment of rent in 2008. The Court also determined that uncontroverted testimony by Claremore's attorney concerning the number of hours spent handling the forcible entry and detainer action satisfied the Texas Property Code's requirements for awarding attorneys' fees to a prevailing landlord.
The opinion was authored by Justice Speedlin.
Attorney Trey Wilson - RL Wilson Law
Showing posts with label Landlord and Tenant San Antonio. Show all posts
Showing posts with label Landlord and Tenant San Antonio. Show all posts
10 January 2010
23 September 2008
LEASES FAQ
What is a lease or rental agreement?
When the landlord has decided to rent to the tenant and the tenant has chosen to rent from the landlord, they will enter into a lease or rental agreement. These are contracts, either written or oral, in which the landlord grants to the tenant exclusive possession of a premises in exchange for rent for a period of time.
Do all tenants have the same kind of lease?
No. Most tenants fall into one of two categories.
If the tenant rents for a fixed period of time (that is, a term) and no notice is required to terminate, the tenancy is called a tenancy for years. This tenancy is usually in writing. It must be in writing if the term of the lease is longer than one year.
If the tenancy continues indefinitely, automatically renewing from one period to the next, and if a notice is required to terminate, the tenancy is called periodic. This lease or agreement may be written or oral.
What are the advantages of an oral versus a written lease?
For tenants with an oral month-to-month agreement, the major advantage is the ability to terminate the lease and move out without further rental liability with only a short notice to the landlord. The notice usually must be the same as the term of the agreement, commonly 30 days. Tenants are very mobile (20 percent move each year) and the ease of moving can be an important consideration.
For landlords, an oral lease provides an easy way to terminate the lease and make the tenant move out with only a short notice, or to raise the rent. The landlord is usually not required to state a good reason for the termination, as must be done in other cases.
What are the disadvantages of an oral lease?
Because nothing is written down, the major disadvantage is the possibility of misunderstandings between the landlord and the tenant about the conditions of the tenancy.
What are the advantages of a written lease?
From the landlord’s standpoint, the chief advantage of a written lease is the landlord's right to hold the tenant to pay rent for the entire duration or term of the lease.
What are the disadvantages of a written lease?
The major disadvantage for the tenant is that the landlord may write in express provisions that void certain protections that the law ordinarily gives to the tenant. Also, most written leases—including most of the standard form leases—favor landlords, and the landlord's responsibilities are not very well spelled out.
Does the law regulate the provisions in a lease?
Yes. Both courts and legislative bodies have restricted the provisions in a lease. However, these laws vary by state and locality.
In one example of a law restricting a lease, state courts have struck down lease clauses which provide that the tenant accepts the apartment in "as is" condition and that the tenant must pay the rent regardless of whether the landlord maintains the property. So, if a landlord sues to evict for nonpayment of rent, tenants can defend themselves by arguing that the premises were not worth the full contract rent because of the deteriorated condition. This legal concept is called the implied warranty of habitability. It prevents the landlord from evading the responsibility to maintain the premises even if the tenant signed a lease waiving the right to maintenance.
Many states and municipalities have enacted laws that prohibit some clauses from residential leases. An example of a commonly prohibited clause is "confession of judgment." Such a clause would permit the landlord's attorney to go into any court and to represent the tenant without any prior notice, service or process. The tenant would waive a jury trial, confess judgment to whatever the landlord sues for without any defense, waive all errors or omissions made by the landlord in making the complaint, and authorize an immediate eviction or wage deduction.
Trey Wilson is a lawyer in San Antonio, who frequently represents landlords and tenants in lease negotiations, possession disputes and evictions. He was recently voted by his peers as one of San Antonio's best real estate litigation attorneys. He may be reached at 210/223-4100 or www.sa-law.com
When the landlord has decided to rent to the tenant and the tenant has chosen to rent from the landlord, they will enter into a lease or rental agreement. These are contracts, either written or oral, in which the landlord grants to the tenant exclusive possession of a premises in exchange for rent for a period of time.
Do all tenants have the same kind of lease?
No. Most tenants fall into one of two categories.
If the tenant rents for a fixed period of time (that is, a term) and no notice is required to terminate, the tenancy is called a tenancy for years. This tenancy is usually in writing. It must be in writing if the term of the lease is longer than one year.
If the tenancy continues indefinitely, automatically renewing from one period to the next, and if a notice is required to terminate, the tenancy is called periodic. This lease or agreement may be written or oral.
What are the advantages of an oral versus a written lease?
For tenants with an oral month-to-month agreement, the major advantage is the ability to terminate the lease and move out without further rental liability with only a short notice to the landlord. The notice usually must be the same as the term of the agreement, commonly 30 days. Tenants are very mobile (20 percent move each year) and the ease of moving can be an important consideration.
For landlords, an oral lease provides an easy way to terminate the lease and make the tenant move out with only a short notice, or to raise the rent. The landlord is usually not required to state a good reason for the termination, as must be done in other cases.
What are the disadvantages of an oral lease?
Because nothing is written down, the major disadvantage is the possibility of misunderstandings between the landlord and the tenant about the conditions of the tenancy.
What are the advantages of a written lease?
From the landlord’s standpoint, the chief advantage of a written lease is the landlord's right to hold the tenant to pay rent for the entire duration or term of the lease.
What are the disadvantages of a written lease?
The major disadvantage for the tenant is that the landlord may write in express provisions that void certain protections that the law ordinarily gives to the tenant. Also, most written leases—including most of the standard form leases—favor landlords, and the landlord's responsibilities are not very well spelled out.
Does the law regulate the provisions in a lease?
Yes. Both courts and legislative bodies have restricted the provisions in a lease. However, these laws vary by state and locality.
In one example of a law restricting a lease, state courts have struck down lease clauses which provide that the tenant accepts the apartment in "as is" condition and that the tenant must pay the rent regardless of whether the landlord maintains the property. So, if a landlord sues to evict for nonpayment of rent, tenants can defend themselves by arguing that the premises were not worth the full contract rent because of the deteriorated condition. This legal concept is called the implied warranty of habitability. It prevents the landlord from evading the responsibility to maintain the premises even if the tenant signed a lease waiving the right to maintenance.
Many states and municipalities have enacted laws that prohibit some clauses from residential leases. An example of a commonly prohibited clause is "confession of judgment." Such a clause would permit the landlord's attorney to go into any court and to represent the tenant without any prior notice, service or process. The tenant would waive a jury trial, confess judgment to whatever the landlord sues for without any defense, waive all errors or omissions made by the landlord in making the complaint, and authorize an immediate eviction or wage deduction.
Trey Wilson is a lawyer in San Antonio, who frequently represents landlords and tenants in lease negotiations, possession disputes and evictions. He was recently voted by his peers as one of San Antonio's best real estate litigation attorneys. He may be reached at 210/223-4100 or www.sa-law.com
22 September 2008
NORTH TEXAS CITY FACES FEDERAL LAWSUIT OVER RENTAL RULES --
Latino advocates and a civil liberties group have filed a federal lawsuit against a Dallas suburb whose officials are trying to drive out illegal immigrants. The groups say the plan by the City of Farmers Branch to ask house and apartment renters to obtain a license is unconstitutional. Rental applicants would be run through a federal database to check their immigration status.
The lawsuit filed by the groups, the Mexican American Legal Defense and Educational Fund and the American Civil Liberties Union Immigrants’ Rights Project, is the latest facing Farmers Branch. The suburb faces several other lawsuits in a nearly two-year battle over measures trying to prevent illegal immigrants from living there.
The lawsuit filed by the groups, the Mexican American Legal Defense and Educational Fund and the American Civil Liberties Union Immigrants’ Rights Project, is the latest facing Farmers Branch. The suburb faces several other lawsuits in a nearly two-year battle over measures trying to prevent illegal immigrants from living there.
16 September 2008
WRONGFUL EVICTION ACTIONS AND INSURANCE COVERAGE
In certain circumstances, a landlord may become liable to a tenant for "wrongful eviction". A case for damages for wrongful eviction may include any of a number of different claims that arise under Texas law, and liability for wrongful eviction may be based upon intentional misconduct, or even accidental or innocent failure to comply with complicated eviction procedures set-forth in the Texas Property Code. Such liability may be premised upon the mere service upon the tenant of a Notice to Vacate which does not comply with applicable law. It some instances, liability for multiple and punitive damages may even be based upon an oral threat or statement made by the landlord to the tenant. For this reason, it is recommended that landlords seek advice from competent and experienced legal counsel before communicating with their tenants in any way that may be construed as an eviction threat.
Some landlords maintain wrongful eviction insurance coverage to insure agsinst such claims. This type of coverage is often available under commercial rental property insurance policies, but not under a typical Texas homeowner's policy. However, there are some limitations to wrongful eviction insurance coverages.
In the recent New York case of Mamaroneck Avenue Corp. v. Hartford Fire Ins. Co. (N.Y.App., 2nd Dept., April 22, 2008), a New York Appellate court held that invasion of an organization’s leasehold interest is not a covered risk under the “personal and advertising injury” provisions of a Commercial General Liability policy. The underlying complaint against the insured landlord alleged that such landlord “embarked on a plan of harassment and coercion with the intention of causing [claimant] to terminate its leasehold,” which included allegations of “[t]respassing upon [claimant's] premises and interfering with [claimant’s] business by appearing, unannounced, accompanied by Fire Department personnel and the City Building Inspector . . . to solicit or elicit non-existent fire code violations.” The liability policy’s definition of “personal and advertising injury” included “wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” Noting that other "personal and advertising injury" offenses distinguish between "persons" and "organizations," the court held that wrongful eviction claims apply only to natural "persons." In reaching its conclusion, the court relied on cases from other jurisdictions, including Stonelight Tile v. California Ins. Guar. Assn., 150 Cal App 4th 19; Mirpad, LLC v. California Ins. Guar. Assn., 132 Cal App 4th 1058; and Supreme Laundry Servs. v. Hartford Cas. Ins. Co., 2007 US Dist LEXIS 18134 (ND Ill. 2007).
Some landlords maintain wrongful eviction insurance coverage to insure agsinst such claims. This type of coverage is often available under commercial rental property insurance policies, but not under a typical Texas homeowner's policy. However, there are some limitations to wrongful eviction insurance coverages.
In the recent New York case of Mamaroneck Avenue Corp. v. Hartford Fire Ins. Co. (N.Y.App., 2nd Dept., April 22, 2008), a New York Appellate court held that invasion of an organization’s leasehold interest is not a covered risk under the “personal and advertising injury” provisions of a Commercial General Liability policy. The underlying complaint against the insured landlord alleged that such landlord “embarked on a plan of harassment and coercion with the intention of causing [claimant] to terminate its leasehold,” which included allegations of “[t]respassing upon [claimant's] premises and interfering with [claimant’s] business by appearing, unannounced, accompanied by Fire Department personnel and the City Building Inspector . . . to solicit or elicit non-existent fire code violations.” The liability policy’s definition of “personal and advertising injury” included “wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” Noting that other "personal and advertising injury" offenses distinguish between "persons" and "organizations," the court held that wrongful eviction claims apply only to natural "persons." In reaching its conclusion, the court relied on cases from other jurisdictions, including Stonelight Tile v. California Ins. Guar. Assn., 150 Cal App 4th 19; Mirpad, LLC v. California Ins. Guar. Assn., 132 Cal App 4th 1058; and Supreme Laundry Servs. v. Hartford Cas. Ins. Co., 2007 US Dist LEXIS 18134 (ND Ill. 2007).
TENANT's PERSONAL PROPERTY -- ADEQUATE COLLATERAL FOR UNPAID RENTS?
Is the landlord ever justified in seizing a Tenant's property?
Yes, but only if the Tenant is delinquent on the rent and the lease gives the landlord a lien on the Tenant's property. Such a provision must be underlined or in bold print in the lease.
In seizing the property under a landlord's lien, the landlord may not take exempt property, but may remove non-essential items (TVs, stereos, VCRs, CD players), provided s/he can enter the apartment peacefully. But s/he must do the following:
The landlord must leave a notice of entry along with a written inventory of the items removed.
The notice must state the name, address, telephone number of the person whom the tenant may contact about the amount owed.
The notice must show the amount of delinquent rent and state that the items will be promptly returned when the full amount of delinquent rent is paid.
The landlord cannot collect or charge for parking, removing, or storing items unless authorized previously in a written lease.
In addition, a landlord may remove property if a tenant abandons the unit. If a landlord obtains a court order of eviction, the landlord may also remove the tenant's property, but this must be done under the supervision of a law officer.
Can the landlord sell a Tenant's possessions in order to recover back rent?
Unless otherwise permitted in the written lease, any property seized by a landlord under a landlord's lien cannot be sold or disposed of. If the lease permits such a sale, the landlord must give the tenant 30 days written notice before the date of the sale. This notice must be sent to the tenant by both first class and certified mail, or Return Receipt Requested at the tenant's last known address.
Yes, but only if the Tenant is delinquent on the rent and the lease gives the landlord a lien on the Tenant's property. Such a provision must be underlined or in bold print in the lease.
In seizing the property under a landlord's lien, the landlord may not take exempt property, but may remove non-essential items (TVs, stereos, VCRs, CD players), provided s/he can enter the apartment peacefully. But s/he must do the following:
The landlord must leave a notice of entry along with a written inventory of the items removed.
The notice must state the name, address, telephone number of the person whom the tenant may contact about the amount owed.
The notice must show the amount of delinquent rent and state that the items will be promptly returned when the full amount of delinquent rent is paid.
The landlord cannot collect or charge for parking, removing, or storing items unless authorized previously in a written lease.
In addition, a landlord may remove property if a tenant abandons the unit. If a landlord obtains a court order of eviction, the landlord may also remove the tenant's property, but this must be done under the supervision of a law officer.
Can the landlord sell a Tenant's possessions in order to recover back rent?
Unless otherwise permitted in the written lease, any property seized by a landlord under a landlord's lien cannot be sold or disposed of. If the lease permits such a sale, the landlord must give the tenant 30 days written notice before the date of the sale. This notice must be sent to the tenant by both first class and certified mail, or Return Receipt Requested at the tenant's last known address.
FAQ -- SECURITY DEPOSITS
What is the purpose of a security deposit?
The security deposit law serves as a protection for the landlord. The deposit can be used to cover costs for which the tenant is liable by providing some sort of collateral to protect a landlord's property against abuse by the tenant and by recapturing actual financial losses as a result of the tenant's breach of a lease. Texas law protects the right of renters to get their deposit back.
Can I assume that my security deposit will automatically cover the last month's rent?
No, not automatically. Normally, the tenant cannot deduct the security deposit from the last month's rent without permission from the landlord. Assuming that the security deposit will cover the rent / balance of the rent and therefore withholding payment, constitutes a lease violation for which the tenant may be evicted. In addition, a tenant who withholds the last month's rent may be liable for an amount equal to three times the amount of the rent wrongfully withheld and the landlord's reasonable attorney's fees.
I've just moved out of my rental unit. When can I expect to receive my security deposit?
According to the Texas Property Code, a tenant has the right to receive his / her security deposit (or the balance of the security deposit with a list of itemized deductions) on / before the 30th day after leaving a dwelling, provided the tenant has given the landlord written notice of her forwarding address for the return of her deposit. For more information, see Procedure to Refund.
Are there any qualifications to my receiving my security deposit?
Yes. You should receive your security deposit provided you have met the following conditions:
Your lease term has ended
You have given thirty days written notice prior to leaving the dwelling
You do not owe any back rent or other charges
You have not damaged the apartment in excess of normal wear and tear
Is it true that if I do not provide my forwarding address, I lose my deposit?
No, but the landlord is not required to return a deposit until 30 days after the tenant
moves out or 30 days after the landlord receives the tenant's forwarding address in writing.
I've received my security deposit, but not the full amount. Is my landlord required to provide an itemized account of deductions?
Yes, unless the tenant owes rent and there is no dispute over the amount owed. Otherwise, the landlord must provide an itemized list of deductions within 30 days. If the landlord doesn't include an account of itemized deductions within 30 days, s/he may forfeit the right to withhold any part of the deposit and may be liable for court costs, statutory penalties and attorney's fees. If the deposit is not returned in full within 30 days, and the court finds that the landlord acted in bad faith, the landlord can be held liable for $100 and three times the amount of the deposit wrongfully withheld, plus attorney's fees and court costs.
Can the landlord deduct from my security deposit for normal wear and tear on the unit?
No. Landlords cannot charge for normal wear and tear on the apartment. For example, the landlord should not charge for such routine procedures as shampooing the carpet or painting the unit, unless there are egregious stains, damages, etc.
If my landlord fails to return my deposit within 30 days, can I receive more than the amount of the security deposit?
Not necessarily. A tenant will receive more than the amount of the security deposit only if it can be proven in court that the landlord acted in bad faith.
My rental unit is about to be sold. Will I lose my security deposit?No. Under Texas law, there is no requirement that the landlord put the security deposit into an escrow account to be transferred to the new owner. Nor is there an automatic transfer of security deposits to new owners. The old landlord is still responsible for returning all security deposits to tenants until the new owner gives the tenant a signed statement that s/he has received and is responsible for the security deposits.
I've decided not to take an apartment, after all, despite signing the lease. Can I get my security deposit back?
Texas does not have a Buyer's Remorse Law, so the lease becomes binding as soon as it is signed. Many rental application forms allow the landlord to keep the entire deposit if the tenant is approved and then decides not to sign the lease. Even if there is no written agreement about the deposit, the landlord is entitled to recover out-of-pocket expenses (including advertising and lost rent) after taking the property off the market.
However, if the tenant secures a replacement tenant, approved by the landlord, the landlord may not keep the deposit if the replacement tenant occupies the unit by the date the lease was to begin. On the other hand, if the landlord secures the replacement tenant, s/he may keep a sum agreed to in the lease as a cancellation fee or the actual expenses incurred by the landlord.
The security deposit law serves as a protection for the landlord. The deposit can be used to cover costs for which the tenant is liable by providing some sort of collateral to protect a landlord's property against abuse by the tenant and by recapturing actual financial losses as a result of the tenant's breach of a lease. Texas law protects the right of renters to get their deposit back.
Can I assume that my security deposit will automatically cover the last month's rent?
No, not automatically. Normally, the tenant cannot deduct the security deposit from the last month's rent without permission from the landlord. Assuming that the security deposit will cover the rent / balance of the rent and therefore withholding payment, constitutes a lease violation for which the tenant may be evicted. In addition, a tenant who withholds the last month's rent may be liable for an amount equal to three times the amount of the rent wrongfully withheld and the landlord's reasonable attorney's fees.
I've just moved out of my rental unit. When can I expect to receive my security deposit?
According to the Texas Property Code, a tenant has the right to receive his / her security deposit (or the balance of the security deposit with a list of itemized deductions) on / before the 30th day after leaving a dwelling, provided the tenant has given the landlord written notice of her forwarding address for the return of her deposit. For more information, see Procedure to Refund.
Are there any qualifications to my receiving my security deposit?
Yes. You should receive your security deposit provided you have met the following conditions:
Your lease term has ended
You have given thirty days written notice prior to leaving the dwelling
You do not owe any back rent or other charges
You have not damaged the apartment in excess of normal wear and tear
Is it true that if I do not provide my forwarding address, I lose my deposit?
No, but the landlord is not required to return a deposit until 30 days after the tenant
moves out or 30 days after the landlord receives the tenant's forwarding address in writing.
I've received my security deposit, but not the full amount. Is my landlord required to provide an itemized account of deductions?
Yes, unless the tenant owes rent and there is no dispute over the amount owed. Otherwise, the landlord must provide an itemized list of deductions within 30 days. If the landlord doesn't include an account of itemized deductions within 30 days, s/he may forfeit the right to withhold any part of the deposit and may be liable for court costs, statutory penalties and attorney's fees. If the deposit is not returned in full within 30 days, and the court finds that the landlord acted in bad faith, the landlord can be held liable for $100 and three times the amount of the deposit wrongfully withheld, plus attorney's fees and court costs.
Can the landlord deduct from my security deposit for normal wear and tear on the unit?
No. Landlords cannot charge for normal wear and tear on the apartment. For example, the landlord should not charge for such routine procedures as shampooing the carpet or painting the unit, unless there are egregious stains, damages, etc.
If my landlord fails to return my deposit within 30 days, can I receive more than the amount of the security deposit?
Not necessarily. A tenant will receive more than the amount of the security deposit only if it can be proven in court that the landlord acted in bad faith.
My rental unit is about to be sold. Will I lose my security deposit?No. Under Texas law, there is no requirement that the landlord put the security deposit into an escrow account to be transferred to the new owner. Nor is there an automatic transfer of security deposits to new owners. The old landlord is still responsible for returning all security deposits to tenants until the new owner gives the tenant a signed statement that s/he has received and is responsible for the security deposits.
I've decided not to take an apartment, after all, despite signing the lease. Can I get my security deposit back?
Texas does not have a Buyer's Remorse Law, so the lease becomes binding as soon as it is signed. Many rental application forms allow the landlord to keep the entire deposit if the tenant is approved and then decides not to sign the lease. Even if there is no written agreement about the deposit, the landlord is entitled to recover out-of-pocket expenses (including advertising and lost rent) after taking the property off the market.
However, if the tenant secures a replacement tenant, approved by the landlord, the landlord may not keep the deposit if the replacement tenant occupies the unit by the date the lease was to begin. On the other hand, if the landlord secures the replacement tenant, s/he may keep a sum agreed to in the lease as a cancellation fee or the actual expenses incurred by the landlord.
25 August 2008
Tenant Lock Out Rights in Texas. Is a Lockout the Same As An Eviction?
A Lockout Is Not An Eviction - It's a mechanism used to get the attention of the Tenant and to force them to contact management and make arrangements to pay any past due rent.
A landlord can lock out a Tenant for non-payment of rent for no more than two hours after the Tenant requests re-entry. There are multiple rules from the Texas property code that Landlords must follow:
1) They must give you written notice in your lease either in bold or underlined print that they reserve the right to lock you out for non-payment of rent or other fees. If you are late with your payment they then must again give written notice of past due rent and late fees and of their intent to lock you out.
2) They can not lock you out or change the locks while you or any or guest occupies the rental unit.
3) If your are locked out the landlord must return full access with 2 Hours of your request and can not require your to pay any rent amount or late fees before allowing you re-entry. If they do not allow access they are subject to prosecution on an criminal misdemeanor charges as well as civil fines and court cost. Under no circumstances tamper with or remove the landlords lockout device because they can fill criminal charges against you. If the property management company does not let you in and provide you with a new key within 2 hrs call 911 and ask them to send an officer to assist you to gain access and be sure to get an Incident number so you can be can not be prosecuted. This will also help with your case for cash damages of up to 1 months rent, plus $500 and Attorneys fees - minus any past due rent..
4) Your management company can not use "off duty" Police or Law enforcement officers to try to force you to allow them to change the locks or allow them to remove property that is subject to "A landlords Lien." If a police officer who is being paid or receiving compensation such as free or discounted rent cannot " Use The Color Of their Badge" to do the landlords bidding in relation to your nonpayment of rent, lockout or landlords liens. It is must certainly a conflict of interest and is subject to criminal prosecution for "Official Oppression" - Texas Penal Code - Section 39.03 for the Law Enforcement Officer. Both the landlord or the landlord's agent who instigates such action is also subject to civil and criminal prosecution.
If this happens do not step outside you door or allow the officer working as a security officer for the complex inside your apartment. They may try to arrest you " for disorderly conduct" or some other trumped up change that judges tend to give them the benefit of the doubt for.
In a non-treating voice inform them that their actions appear to be a "Conflict Of Interest" and are verging on "Official Oppression" and you want another police agency to intervene. Close the door and then you should then call 911 and ask them to send another law enforcement agency to send a supervisor and make a complaint for "Official Oppression" which is a federal and state civil rights violation. When the other agencies officer arrives allow him and him only into your residence and state your case, call the local Justice of the peace and ask him to speak to the officer. Always ask for an Incident report number for your compliant.
If you feel that you have been improperly locked-out, or that your landlord will not abide by the law without your resorting to Court attention, call a lawyer experienced with evictions, such as San Antonio attorney Trey Wilson of R L Wilson, P.C. Law Firm.
A landlord can lock out a Tenant for non-payment of rent for no more than two hours after the Tenant requests re-entry. There are multiple rules from the Texas property code that Landlords must follow:
1) They must give you written notice in your lease either in bold or underlined print that they reserve the right to lock you out for non-payment of rent or other fees. If you are late with your payment they then must again give written notice of past due rent and late fees and of their intent to lock you out.
2) They can not lock you out or change the locks while you or any or guest occupies the rental unit.
3) If your are locked out the landlord must return full access with 2 Hours of your request and can not require your to pay any rent amount or late fees before allowing you re-entry. If they do not allow access they are subject to prosecution on an criminal misdemeanor charges as well as civil fines and court cost. Under no circumstances tamper with or remove the landlords lockout device because they can fill criminal charges against you. If the property management company does not let you in and provide you with a new key within 2 hrs call 911 and ask them to send an officer to assist you to gain access and be sure to get an Incident number so you can be can not be prosecuted. This will also help with your case for cash damages of up to 1 months rent, plus $500 and Attorneys fees - minus any past due rent..
4) Your management company can not use "off duty" Police or Law enforcement officers to try to force you to allow them to change the locks or allow them to remove property that is subject to "A landlords Lien." If a police officer who is being paid or receiving compensation such as free or discounted rent cannot " Use The Color Of their Badge" to do the landlords bidding in relation to your nonpayment of rent, lockout or landlords liens. It is must certainly a conflict of interest and is subject to criminal prosecution for "Official Oppression" - Texas Penal Code - Section 39.03 for the Law Enforcement Officer. Both the landlord or the landlord's agent who instigates such action is also subject to civil and criminal prosecution.
If this happens do not step outside you door or allow the officer working as a security officer for the complex inside your apartment. They may try to arrest you " for disorderly conduct" or some other trumped up change that judges tend to give them the benefit of the doubt for.
In a non-treating voice inform them that their actions appear to be a "Conflict Of Interest" and are verging on "Official Oppression" and you want another police agency to intervene. Close the door and then you should then call 911 and ask them to send another law enforcement agency to send a supervisor and make a complaint for "Official Oppression" which is a federal and state civil rights violation. When the other agencies officer arrives allow him and him only into your residence and state your case, call the local Justice of the peace and ask him to speak to the officer. Always ask for an Incident report number for your compliant.
If you feel that you have been improperly locked-out, or that your landlord will not abide by the law without your resorting to Court attention, call a lawyer experienced with evictions, such as San Antonio attorney Trey Wilson of R L Wilson, P.C. Law Firm.
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Trey Wilson --Named By Scene in SA Magazine As One of San Antonio's Best Real Estate Litigation Attorneys -- September 2008 -- As voted on by peers