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ITINERARY
Planning Ahead to Avoid Tenant Problems 9:00 – 10:30 (Barbieri) Renting the Apartment Rental Application – Questions You
Should Ask The Lease and What Should be
Included Conditions Checklist Lease Guaranties
ITINERARYNotice to Quit & Evictions 10:45 –
Noon Termination for Non-Payment of Rent Termination for Breach of Rental
Agreement Termination for No Cause Where There is
No Renewal Agreement Termination of Rental Agreement When
Property is Sold Termination by Landlord Under the Terms
of Written Rental Agreement
ITINERARYEvictions 10:45 – Noon
Grounds for Evictions and Jurisdiction
Service of Summons and Complaint Rent Escrow Judgment and Writ of Possession Advancement Discovery and Jury Trials Default and Summary Judgment Appeals
ITINERARYEthical Considerations 1:15 –
1:45 (Barbieri) Legislative Update Legal and Ethical Issues
Surrounding Auditing of Attorney’s Bills
Conflict of Interest Commingling of Security Deposits
ITINERARYWhat Defenses Does a Tenant
Have? 1:45 – 2:30 (Cross) Payment of Rent Minor Defects, Repair and Deduct Consumer Fraud Acts Retaliatory Eviction Sale and Conversions Into
Condominiums (Barbieri) Agreements With Parties Other Than
Tenants Lack of Notice
ITINERARYDiscrimination and Americans
With Disabilities Act 2:45 – 3:00 (Barbieri) Discrimination Americans With Disabilities Act Texas Architectural Barriers Act
ITINERARYSpecial Landlord/Tenant Issues 3:00 –
4:30 Illegal Evictions – Landlord Lockouts
(Barbieri) UCC Financing Statements (Cross) Securing Tenant’s Performance Under the
Lease – Security Deposits and Landlord’s Liens (Barbieri)
Distress Warrants (Cross) Differences Between Security Deposits,
Letters of Credit and Certificates of Deposit in a Tenant Bankruptcy (Barbieri)
RENTING THE APARTMENT
Repairs Express Agreements to Repair City Codes Construction Eviction Habitability Legislation Landlord Duties
RENTING THE APARTMENT
Tenant’s Repairs Prerequisites for Tenant (“Self
Help”) Notice Rent Reasonable time for repairs Second demand by Tenant Burden of proof
RENTING THE APARTMENT
Landlord’s “Loopholes” In Repairing the Premises Severe Casualty Closing the Rental Premises
RENTING THE APARTMENT
Security Devices Locks and Other Security Measures
Necessary Security Officers Re-keying and Changing Locks Repairs of Security Devices Right of Landlord to Charge for
Repair Remedies for Noncompliance
RENTING THE APARTMENT
Smoke Detectors Generally Remedies for Noncompliance No separate damages under
common law Maybe separate damages under
DTPA
RENTING THE APARTMENT
Legislative Update HB 299 – Landlord’s duty to
mitigate damages, TPC § 91.006 HB 388 – F.E.D. Time for setting
hearing, TPC § 24.004 HB 537 - Landlord’s duty to
mitigate damages if Tenant abandons, TPC § 91.015
HB 636 - Fair Housing Practices
RENTING THE APARTMENT
Legislative Update (continued) HB 1502 – Tenant’s right summon police in
emergency, TPC § 92.015 HB 2160 – Specialty insurance license for certain
persons who rent residential property (Sec. 1. Art. 21.09, Insurance Code)
HB 2180 – Charges assessed by landlord, TPC § 93.004
HB 2187 – Notice to residential tenants re utility interruption, TPC § 92.008
HB 3190 – Refund or retention of security deposit under commercial lease, TPC § 93.005
RENTAL APPLICATIONS -QUESTIONS YOU SHOULD
ASK Identity Information Prior Residential Information Financial Status Employment History Criminal Background Miscellaneous Statement Regarding False
Information Application Deposits
THE LEASE AND WHATSHOULD BE INCLUDED
Lease Basics & Definitions “Any written or oral
agreement between a Landlord and a Tenant that establishes or modifies the terms for occupying a Premises” TPC § 92.001
THE LEASE AND WHATSHOULD BE INCLUDED
Tenancies and Licenses Distinguished Lease grants exclusive right
to possession No magic words to create Look to intent of parties
THE LEASE AND WHATSHOULD BE INCLUDED
Lease Validity Leases are blends of contract
and property law When in doubt, go with ordinary
contract doctrines Oral leases okay if less than 1
year
THE LEASE AND WHATSHOULD BE INCLUDED
Lease Term Primary term ends without
notice Watch for removal options
THE LEASE AND WHATSHOULD BE INCLUDED
Covenant of Peaceable, Quite Enjoyment Unless lease says otherwise,
this is implied by law Key “proviso”
THE LEASE AND WHATSHOULD BE INCLUDED
Changing the Conditions of a Lease Be careful about
modifications to Lease
THE LEASE AND WHATSHOULD BE INCLUDED
Property Rules and Regulations Landlord should reserve the
right to modify from time to time
THE LEASE AND WHATSHOULD BE INCLUDED
Rent and Nonpayment Issues Most important part of Lease Due Date Grace Period Specify where to send rent “Additional Rent” “Lost in mail”
THE LEASE AND WHATSHOULD BE INCLUDED
Late Charges No specific limit DTPA - $35 too much for 1 day Lease is not debt transaction,
so no usury Contradiction Notice to avoid waiver
THE LEASE AND WHATSHOULD BE INCLUDED
Rent Withholding Generally, Texas Courts apply
theory of “independent contracts” to Leases
Tenant has lien on Landlord
THE LEASE AND WHATSHOULD BE INCLUDED
Subleases and Assignments Texas law differs from many
other states, so watch out for form lease
Good idea to prohibit subleases and assignments
THE LEASE AND WHATSHOULD BE INCLUDED
Waiver of Tenant’s Rights Some Tenant waivers are
enforceable, some are not Be careful with form leases
that waive invalid rights
THE LEASE AND WHATSHOULD BE INCLUDED
Exculpatory Clauses These can protect Landlord
by reducing exposure i.e., Landlord is not
responsible for Tenant’s property loss on Premises
THE LEASE AND WHATSHOULD BE INCLUDED
Termination of a Lease Generally, a Lease terminates at
end of term Can be terminated earlier for
breach Month-to-month and periodic
tenancies
THE LEASE AND WHATSHOULD BE INCLUDED
Termination of a Lease Termination of the Lease Based on
Default•Lease Provisions•Demand for Performance•Refusal to Accept Performance•Waiver of Default•Effect on Retaliation•Wrongful Eviction, Termination
THE LEASE AND WHATSHOULD BE INCLUDED
Termination of a Lease Effect on Termination
•Liability for Future Rents – difference between terminating lease and terminating Tenant’s right to possess
•Unenforceable Penalties
THE LEASE AND WHATSHOULD BE INCLUDED
Joint and Several Liability of Covenants Roommates Agreement between
roommates is not binding on Landlord
THE LEASE AND WHATSHOULD BE INCLUDED
Security Deposit Covered later, but, look at
sample language regarding balance due and replenish
THE LEASE AND WHATSHOULD BE INCLUDED
Permitted Use Living quarters for limited
number of people Pets Commercial Use
THE LEASE AND WHATSHOULD BE INCLUDED
Prohibitions Good idea to state what
Tenant cannot use Premises for
Don’t forget to reserve the right to terminate
THE LEASE AND WHATSHOULD BE INCLUDED
Utilities Lease should specify that
Tenant is responsible for all utilities
Be careful about utility accounts in Landlord’s name
No rent abatement
THE LEASE AND WHATSHOULD BE INCLUDED
Maintenance Specify who is responsible for
what maintenance Limit Tenant’s right to paint,
or make other improvements
THE LEASE AND WHATSHOULD BE INCLUDED
Abandonment of Premises In light of H.B. 537, good
idea to define abandonment Landlord should be able to
terminate if abandoned
THE LEASE AND WHATSHOULD BE INCLUDED
Notice Specify where to send, what
method (Mail, CM/RRR, Delivery, etc.), alternative methods (Fax, E-Mail)
Specify when effective
CONDITIONS CHECKLIST
Incorporate by reference into Lease
Deadline to turn inSchedule walk-through upon
terminationHelps Landlord comply with
statutes regarding return of security deposit
LEASE GUARANTEES
Should be separate agreements
Guarantor should absolutely and unconditionally guarantee
Should not grant additional rights
DISCRIMINATION
Prohibited Practices Refusal to Negotiate or Rent Differing Terms or Services Restricting Choices to Perpetuate
Segregation Discriminatory Advertising False Information on the Availability of
Dwellings Discrimination in Residential Real Estate-
Related Transactions Handicap Discrimination Familial Status
AMERICANS WITH DISABILITIES ACT
Effective since 1992Requires “reasonable
accommodations”Applies to new and
remodeled commercial properties
Title II – prohibits discrimination on the basis of disability and applies to all programs, activities and services provided by public entities.
AMERICANS WITH DISABILITIES ACT
AMERICANS WITH DISABILITIES ACT
Title III – extends Title II to all privately owned public accommodations, such as movie theaters, restaurants, office buildings and museums.
AMERICANS WITH DISABILITIES ACT
ADA’s prohibitions against discrimination apply to “any person who owns, leases (or leases to), or operates a place of public accommodation,” that a landlord can be, and often is liable for noncompliance.
Under the ADA, an individual with a disability is a person who: Has a physical or mental
impairment that substantially limits one or more major life activities
Has a record of such an impairment; or
Is regarded as having such an impairment
AMERICANS WITH DISABILITIES ACT
TEXAS ACCESSIBILITY STATUTES
In 1991, the Texas Architectural Barriers Act (“TABA”) created the Texas Department of Licensing & Regulations (“TDLR”).
In 1993, the TDLR adopted the Texas Accessibility Standards (“TAS”)
The TAS program provides three basic functions: Licensing Plan Reviews and inspections Enforcement of all new building
and facilities construction and renovations
TEXAS ACCESSIBILITY STATUTES
Buildings and facilities with construction, renovation or alteration costs of $50,000 or more, are required by statute to be submitted for review to either the Elimination of Architectural Barriers Department of TDLR, or to an Independent Contract Provider (ICP) under contract with the State.
TEXAS ACCESSIBILITY STATUTES
The TDLR and ICPs review construction documents and conduct inspections for compliance with the TABA and the TAS. When there is non conformity, you must ask for a variance.
TEXAS ACCESSIBILITY STATUTES
Three common reasons for rejecting a variance: Lack of information supporting reason for the
variance Nothing to support the fact that the variance is
“structurally inpracticable” In variances for projects involving alterations,
there is no reason given why the variance is “technically infeasible.”
“Structurally impracticable” and “technically infeasible” are very technical terms that are often applied capriciously.
TEXAS ACCESSIBILITY STATUTES
The TDLR is concerned with providing access to many public areas – Parking and passenger loadings Stairs, ramps, elevators Drinking fountains Lavatories Signs Telephones, ATM’s Fitting Rooms Fire alarms Medical care facilities Transportation facilities
TEXAS ACCESSIBILITY STATUTES
SECURING TENANT’S PERFORMANCE UNDER THE
LEASE – SECURITY DEPOSITS AND LANDLORD’S
LIENSSecurity Deposits - Residential Definitions and Overview Procedure to Refund Penalties for Non-Compliance Non-Refundable “Deposits” and
Fees Changes in Ownership Other Issues
SECURING TENANT’S PERFORMANCE UNDER THE
LEASE – SECURITY DEPOSITS AND LANDLORD’S
LIENSSecurity Deposits - Commercial
Recent changes to Chapter 93 of Texas Property Cod make commercial similar to residential
Potential discrepancy within new code
SECURING TENANT’S PERFORMANCE UNDER THE
LEASE – SECURITY DEPOSITS AND LANDLORD’S
LIENSLandlord’s Liens Overview Requirements and Procedure for
Enforcement Exempt Property Sale of Property Abandonment Penalties for Violation
Recommended