PLANNING AHEAD TO AVOID TENANT PROBLEMS Presented by: Anthony J. Barbieri.

PLANNING AHEAD TO

AVOID TENANT PROBLEMS

Presented by:Anthony J. Barbieri

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

ITINERARY

BREAK – 10:30 - 1045

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

ITINERARYLUNCH – Noon – 1:00

ITINERARYRecap of Morning Lecture Q&A –

1:00 – 1:15 (Cross & Barbieri)

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

ITINERARYBREAK 2:30 – 2:45

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


Tenant’s Repairs Prerequisites for Tenant (“Self

Help”) Notice Rent Reasonable time for repairs Second demand by Tenant Burden of proof


Landlord’s “Loopholes” In Repairing the Premises Severe Casualty Closing the Rental Premises


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


Disclosure of Ownership and Management Generally Remedies for Noncompliance


Smoke Detectors Generally Remedies for Noncompliance No separate damages under

common law Maybe separate damages under

DTPA


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


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


Tenancies and Licenses Distinguished Lease grants exclusive right

to possession No magic words to create Look to intent of parties


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


Lease Term Primary term ends without

notice Watch for removal options


Covenant of Peaceable, Quite Enjoyment Unless lease says otherwise,

this is implied by law Key “proviso”


Changing the Conditions of a Lease Be careful about

modifications to Lease


Property Rules and Regulations Landlord should reserve the

right to modify from time to time


Rent and Nonpayment Issues Most important part of Lease Due Date Grace Period Specify where to send rent “Additional Rent” “Lost in mail”


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


Rent Withholding Generally, Texas Courts apply

theory of “independent contracts” to Leases

Tenant has lien on Landlord

IF YOU ARE STILL AWAKE

YOU ROCK!


Subleases and Assignments Texas law differs from many

other states, so watch out for form lease

Good idea to prohibit subleases and assignments


Waiver of Tenant’s Rights Some Tenant waivers are

enforceable, some are not Be careful with form leases

that waive invalid rights


Exculpatory Clauses These can protect Landlord

by reducing exposure i.e., Landlord is not

responsible for Tenant’s property loss on Premises


Termination of a Lease Generally, a Lease terminates at

end of term Can be terminated earlier for

breach Month-to-month and periodic

tenancies


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


Termination of a Lease Effect on Termination

•Liability for Future Rents – difference between terminating lease and terminating Tenant’s right to possess

•Unenforceable Penalties


Joint and Several Liability of Covenants Roommates Agreement between

roommates is not binding on Landlord


Security Deposit Covered later, but, look at

sample language regarding balance due and replenish


Permitted Use Living quarters for limited

number of people Pets Commercial Use


Prohibitions Good idea to state what

Tenant cannot use Premises for

Don’t forget to reserve the right to terminate


Utilities Lease should specify that

Tenant is responsible for all utilities

Be careful about utility accounts in Landlord’s name

No rent abatement


Maintenance Specify who is responsible for

what maintenance Limit Tenant’s right to paint,

or make other improvements


Abandonment of Premises In light of H.B. 537, good

idea to define abandonment Landlord should be able to

terminate if abandoned


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.



Title III – extends Title II to all privately owned public accommodations, such as movie theaters, restaurants, office buildings and museums.


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


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


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.


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.


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.


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


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



LIENSSecurity Deposits - Commercial

Recent changes to Chapter 93 of Texas Property Cod make commercial similar to residential

Potential discrepancy within new code



LIENSLandlord’s Liens Overview Requirements and Procedure for

Enforcement Exempt Property Sale of Property Abandonment Penalties for Violation



LIENSSecurity Deposit vs. Letter of

Credit vs. Certificate of Deposit

PLANNING AHEAD TO AVOID TENANT PROBLEMS Presented by: Anthony J. Barbieri.

Documents

noncompliance slide

cross barbieri slide

dtpa slide

rental premises slide

itinerary evictions

itinerary notice

tenant burden of proof

itinerary discrimination