Hay Legal Group PLLC

Locking Down Your Lease

With rent prices skyrocketing in Austin and its surrounding communities, more and more homeowners are becoming landlords to accommodate the hundreds of new arrivals to Central Texas each day. Conversely, more and more new residents in Austin are turning to websites such as Craigslist and other similar resources to find rental homes.

And while it may seem like we’ve entered into an age of tear down and build up condominiums, there are plenty of older homes available for rent that have traditionally been used for owner occupied purposes. With the leases often being signed without the aid of agents, it is important for both Landlords and Tenants to know how to protect themselves, each in their own way.

What this means is that a home is not necessarily a rentable home under the Texas Property Code. As a landlord you (or your LLC if you’ve ventured into landlordship correctly to limit your liability) have certain obligations to those who rent from you.

First and foremost is that the home you’re providing is safe. What does this mean? Section 92.153 of the Texas Property Codeline items certain security devices that must be installed on every property, without the requirement of a tenant request. While certain loopholes do exist (don’t they always when we’re talking about the law) the necessary items for a basic rental is:

  1. (1) a window latch on each exterior window of the dwelling;
  2. (2) a doorknob lock or keyed dead bolt on each exterior door;
  3. (3) a sliding door pin lock on each exterior sliding glass door of the dwelling;
  4. (4) a sliding door handle latch or a sliding door security bar on each exterior sliding glass door of the dwelling; &
  5. (5) a keyless bolting device and a door viewer on each exterior door of the dwelling.

While locks are almost assumed to be part of the rental house the law demands more than a simple keyed lock. The list is simple in its language, but demanding in its requirements—older homes often have no latches on each exterior window or door viewers on each exterior door of the dwelling. The same could be said for a keyless bolting device that can only be unlocked from someone inside the house. While newer builds regularly meet these requirements by default in order to be up to code older homes too often slip through the cracks on these requirements.

What does this all mean? It means if you’re a landlord whose property doesn’t meet these requirements, you’re in violation of the law. More importantly, you’re holding onto a lease that is a mere three days from being a toast. What does it mean if you’re a tenant? It means that you have a black and white termination of your lease should these requirements fulfilled.

Section 92.164 explicitly deals with deficiencies relating to section 153’s requirements and 92.164(a)(2) is the most important. It states that if a landlord does not comply with the re-keying or installation of a security device, then a Tenant may serve a written request for compliance on the landlord. If the landlord fails to comply within three days of receiving notice, then the tenant may “unilaterally terminate the lease without court proceedings.” Texas Property Code § 92.164(a)(2). That timeline may be extended to seven days, depending on the notice requirements included in the lease.

In most situations the exceptions do not apply, but the devil is always in the details. Assuming, however, that this is a common lease, with no notices, and no special needs of the tenant, then a properly noticed request can terminate a tenant’s obligations remarkably fast.

Pitfalls to avoid as a tenant include demonstrating that notice was given and actually received—this can be accomplished via email if agreed to in the lease, but many Leases require notices to be delivered to a specific address designated in the Lease. Sending an uncertified letter also opens the doors to questions of delivery.

To ensure proof of delivery, delivering the notice via certified mail, return receipt requested and actually receiving the return green card is the best practice before terminating the lease. A follow up notice stating the termination, and grounds for it, is also recommended upon surrender of the property. Be sure to include your forwarding address for your security deposit!

For the Landlord, this expedited timeline can come as quite a surprise and cause quite a circus to unfold quickly. Failing to immediately address the situation can only exacerbate the problem. Door viewers and latches on all windows aren’t the easiest and cheapest additions, but they are the cost of doing business as a Landlord.

Should the unthinkable happen, and notice is received with no time to react, there are savings clauses, however they all require the documented demonstration of diligence in attempting to rectify the problem. In other words, a Tenant cannot demand the installation, and then refuse entry into the property (but it is on the landlord to have that correspondence showing that they tried).

Like all laws, rules, and leases, the right to do something is countered by the right to disagree with doing it. The pitfalls in using this unilateral termination are numerous, and even the most by the book termination can still result in a breach of contract claim. Landlords be wary though! A retention of a security deposit in the face of a permitted termination can expose you to three times the deposit as damages!

For more answers and guidance on these issues, contacting an attorney is always recommended. An ounce of prevention-whether it be in compliance, corrections, or terminations, can go a long way to prevent undue headache and distress.

Written by Colin Newberry and John A. Hay III, Attorneys at Law

©Copyright 2016 The Hay Legal Group PLLC