Tuesday, April 26, 2011
The following is from the Austin Tenants' Council brochure covering Myths of Renting.
Tenants and landlords often make decisions based on long-standing assumptions which often turn out to be inaccurate. The results can be costly. The following information is provided to demonstrate the importance of getting accurate information before making decisions about rental housing in Austin and in Texas. The information is general in nature and should not be considered complete or a substitute for legal advice.
For tenants to protect their rights as much as possible, the Austin Tenants’ Council recommends the following procedures in making decisions concerning leases and rental properties:
1. Before signing a lease always READ THE LEASE CAREFULLY and assume that you are liable for all terms of the lease unless you agree otherwise IN WRITING. Verbal agreements are usually not enforceable, and most leases say that verbal agreements will not change the written lease. Get all agreements in writing and have both parties sign it. Someone who won’t sign a written agreement possibly has no intention of keeping it.
2. To clarify specific points and procedures that may be covered in the Texas Property Code, call the Austin Tenants’ Council or seek legal advice before taking any action.
Myths About Leasing
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.
Myths About Repairs
Myth: A tenant may withhold rent if the landlord fails to make repairs.
Truth: A tenant’s withholding of rent is seen as retaliation, and the tenant risks eviction and may forfeit certain rights under the law.
Myth: A tenant may simply break the lease without liability if the landlord fails to make any repair within the time specified in the lease.
Truth: State law outlines specific procedures that must be followed by a tenant requesting repairs before the tenant is able to terminate a lease for the landlord’s failure to make the repairs. Failure to follow these procedures may result in the tenant being liable to the landlord for damages.
Myth: The landlord must provide air conditioning equipment for the tenant.
Truth: If such equipment is not in the property when the tenant takes possession, the landlord is not required to provide it unless it is agreed between the parties beforehand, preferably in writing.
Myths About Eviction
Myth: The eviction process takes at least a month.
Truth: A tenant can be evicted in as little as two weeks.
Myth: A landlord may simply remove the tenant’s belongings in the event the tenant fails to vacate by the date specified by the landlord in the notice to vacate.
Truth: Landlords are not permitted by law to remove belongings from an apartment except in the case of abandonment or when exercising a landlord’s lien. Otherwise, a landlord may remove belongings only after an eviction judgment rendered by the justice of the peace court and then only under the supervision of the sheriff or constable.
Myth: The landlord must always give a 30-day notice to vacate the property before evicting the tenant.
Truth: The law requires 72 hours notice for eviction for breach of the lease, prior to the filing of an eviction lawsuit, unless the lease waives that right and provides for a different notice period such as 24 hours.
Myth: If the tenant has been late paying the rent, then the landlord cannot evict the tenant if the tenant later pays the rent in full.
Truth: In many cases, the landlord can proceed with eviction even if the rent is paid in full after the tenant falls behind in rent.
Myth: A landlord must evict noisy neighbors under a clause in the lease.
Truth: Although most leases include such a clause, it gives the landlord the right to evict but does not require eviction.
Myths About Terminating a Lease
Myth: The landlord must have a reason for not renewing a lease.
Truth: Either the landlord or tenant may terminate a lease at the end of the term without any reason, except in low-income housing tax credit properties. In these properties, the landlord must have good cause to terminate the lease. The landlord may not refuse to renew a lease in retaliation for the tenant having requested repairs within the previous six months or for reasons grounded in illegal discrimination. In the case of termination at the end of the lease, notice is for the same length of time as the rental payment period.
Myth: If a tenant breaks a lease, the tenant will only lose the deposit.
Truth: Whether it’s mentioned in the lease or not and unless the landlord agrees otherwise in writing, the tenant will be liable for any damages incurred by the landlord because of the tenant’s breach and for all the monthly payments during the term of the lease as long as the property is not re-rented.
Myth: A tenant may move out and break a lease if the tenant suffers losses or anguish due to lack of security, robberies, or break-ins.
Truth: Breaking a lease under these circumstances can be risky. The law requires landlords to provide locks for windows and doors. Although a tenant may terminate a lease if the landlord commits a substantial breach of the lease, the tenant runs the risk of a court holding that the breach was not so substantial as to justify termination by the tenant.
A tenant would also have grounds to move early if the landlord misrepresented security or crime and the tenant relied on the landlord’s representations in deciding to rent the unit. However, if the landlord sued the tenant for the breach of the lease, the tenant would have to prove that the landlord had misrepresented the property. If a court decided that the landlord had properly represented the property, the landlord might prevail.
Myths About Deposits
Myth: The landlord must put a security deposit into an escrow account which is transferred to a new owner if the property is sold.
Truth: No Texas law requires landlords to put deposit money into an escrow account, and there is no automatic transfer of security deposits to new owners. However, the landlord who purchases a property is still responsible for the return of the deposits to the tenants.
Myth: The tenant will automatically receive three times the security deposit amount plus $100 if the landlord fails to return the deposit exactly within 30 days.
Truth: While the law states a tenant may recover those amounts, a tenant will only receive more than the amount of the security deposit if a court finds the landlord acted in bad faith.
Myth: The landlord is responsible for repair or replacement of the tenant’s belongings in the event of damage by water, fire, smoke, tornado, etc.
Truth: Unless the landlord can be proven negligent in the situation or the lease says otherwise, the landlord is not responsible for costs related to repair or replacement of damaged items. Tenants may want to purchase renters’ insurance for personal belongings.
Myth: If a tenant is behind in rent, the landlord may not confiscate items in the tenant’s apartment until the landlord files for an eviction or goes to court.
Truth: If the tenant’s lease includes a provision for a landlord’s lien or a contractual lien and the provision is either underlined or in conspicuous bold print, then the landlord has the right to enter the tenant’s residence (unless the tenant refuses entry) and remove nonexempt items (for example TV, stereo, VCR) that the tenant owns at any time after the tenant falls behind in rent.
The landlord of an apartment complex that receives housing tax credits is prohibited from liening a tenant’s property except by judicial process unless the tenant has abandoned the premises.
Myth: A landlord can lock a tenant out of an apartment until the tenant pays delinquent rent.
Truth: The landlord may change the lock on a tenant’s door if 1) the lease includes a written lockout provision and 2) after giving advance written notice. The landlord must give advance written notice at least three days prior to the lockout if the notice is hand-delivered or at least five days prior if the notice is sent by regular mail. After the lockout, the landlord must leave a note stating in either underlined or conspicuous bold print where and from whom the tenant may obtain a key at any hour and that the tenant is entitled to a new key regardless of whether the delinquent rent is paid or not.
The landlord of an apartment complex that receives housing tax credits is prohibited from locking out or threatening to lock out a tenant.
Myth: The landlord has no right to enter the tenant’s apartment at any time without the tenant’s permission.
Truth: Most leases make provision for the landlord to enter an apartment without express permission of the tenant. The landlord may enter, however, only in accordance with the terms of the lease.
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.