Repossession of Apartment by Landlord after Tenant Abandonment
Full Question:
I have a resident that paid September rent, then left "to visit friends" the second week in September. Around the end of September I received "stop payment" notice of tenant's check. October remains unpaid, have not seen tenant. I gave notice for nonpayment of rent, but have no way to contact tenant. It has been over 45 days since tenant was seen. Do I have to do an eviction or can I claim abandoned and take possession of my apartment? This is a section 8 property.
10/31/2007 |
Category: Landlord Ten... ยป Residential ... |
State: Texas |
#11305
Answer:
The following are TX statutes:
§ 92.0081. REMOVAL OF PROPERTY AND EXCLUSION OF
RESIDENTIAL TENANT.
(a) A landlord may not remove a door, window,
or attic hatchway cover or a lock, latch, hinge, hinge pin,
doorknob, or other mechanism connected to a door, window, or attic
hatchway cover from premises leased to a tenant or remove
furniture, fixtures, or appliances furnished by the landlord from
premises leased to a tenant unless the landlord removes the item for
a bona fide repair or replacement. If a landlord removes any of the
items listed in this subsection for a bona fide repair or
replacement, the repair or replacement must be promptly performed.
(b) A landlord may not intentionally prevent a tenant from
entering the leased premises except by judicial process unless the
exclusion results from:
(1) bona fide repairs, construction, or an emergency;
(2) removing the contents of premises abandoned by a
tenant; or
(3) changing the door locks of a tenant who is
delinquent in paying at least part of the rent.
(c) If a landlord or a landlord's agent changes the door
lock of a tenant who is delinquent in paying rent, the landlord or
the landlord's agent must place a written notice on the tenant's
front door stating:
(1) an on-site location where the tenant may go 24
hours a day to obtain the new key or a telephone number that is
answered 24 hours a day that the tenant may call to have a key
delivered within two hours after calling the number;
(2) the fact that the landlord must provide the new key
to the tenant at any hour, regardless of whether or not the tenant
pays any of the delinquent rent; and
(3) the amount of rent and other charges for which the
tenant is delinquent.
(d) A landlord may not intentionally prevent a tenant from
entering the leased premises under Subsection (b)(3) unless:
(1) the tenant is delinquent in paying all or part of
the rent; and
(2) the landlord has locally mailed not later than the
fifth calendar day before the date on which the door locks are
changed or hand-delivered to the tenant or posted on the inside of
the main entry door of the tenant's dwelling not later than the
third calendar day before the date on which the door locks are
changed a written notice stating:
(A) the earliest date that the landlord proposes
to change the door locks;
(B) the amount of rent the tenant must pay to
prevent changing of the door locks; and
(C) the name and street address of the individual
to whom, or the location of the on-site management office at which,
the delinquent rent may be paid during the landlord's normal
business hours.
(e) A landlord may not change the locks on the door of a
tenant's dwelling under Subsection (b)(3) on a day, or on a day
immediately before a day, on which the landlord or other designated
individual is not available, or on which any on-site management
office is not open, for the tenant to tender the delinquent rent.
(f) A landlord who intentionally prevents a tenant from
entering the tenant's dwelling under Subsection (b)(3) must provide
the tenant with a key to the changed lock on the dwelling without
regard to whether the tenant pays the delinquent rent.
(g) If a landlord arrives at the dwelling in a timely manner
in response to a tenant's telephone call to the number contained in
the notice as described by Subsection (c)(1) and the tenant is not
present to receive the key to the changed lock, the landlord shall
leave a notice on the front door of the dwelling stating the time
the landlord arrived with the key and the street address to which
the tenant may go to obtain the key during the landlord's normal
office hours.
(h) If a landlord violates this section, the tenant may:
(1) either recover possession of the premises or
terminate the lease; and
(2) recover from the landlord a civil penalty of one
month's rent plus $500, actual damages, court costs, and reasonable
attorney's fees in an action to recover property damages, actual
expenses, or civil penalties , less any delinquent rent or other
sums for which the tenant is liable to the landlord.
(i) If a landlord violates Subsection (f), the tenant may
recover, in addition to the remedies provided by Subsection (h), an
additional civil penalty of one month's rent.
(j) A provision of a lease that purports to waive a right or
to exempt a party from a liability or duty under this section is
void.
§ 91.001. NOTICE FOR TERMINATING CERTAIN TENANCIES.
(a)
A monthly tenancy or a tenancy from month to month may be terminated
by the tenant or the landlord giving notice of termination to the
other.
(b) If a notice of termination is given under Subsection (a)
and if the rent-paying period is at least one month, the tenancy
terminates on whichever of the following days is the later:
(1) the day given in the notice for termination; or
(2) one month after the day on which the notice is
given.
(c) If a notice of termination is given under Subsection (a)
and if the rent-paying period is less than a month, the tenancy
terminates on whichever of the following days is the later:
(1) the day given in the notice for termination; or
(2) the day following the expiration of the period
beginning on the day on which notice is given and extending for a
number of days equal to the number of days in the rent-paying
period.
(d) If a tenancy terminates on a day that does not
correspond to the beginning or end of a rent-paying period, the
tenant is liable for rent only up to the date of termination.
(e) Subsections (a), (b), (c), and (d) do not apply if:
(1) a landlord and a tenant have agreed in an
instrument signed by both parties on a different period of notice to
terminate the tenancy or that no notice is required; or
(2) there is a breach of contract recognized by law.
Acts 1983, 68th Leg., p. 3625, ch. 576, § 1, eff. Jan. 1, 1984.
Amended by Acts 1985, 69th Leg., ch. 200, § 3, eff. Aug. 26,
1985.
§ 91.003. TERMINATION OF LEASE BECAUSE OF PUBLIC
INDECENCY CONVICTION.
(a) A landlord may terminate a lease
executed or renewed after June 15, 1981, if:
(1) the tenant or occupant of the leasehold uses the
property for an activity for which the tenant or occupant or for
which an agent or employee of the tenant or occupant is convicted
under Chapter 43, Penal Code, as amended; and
(2) the convicted person has exhausted or abandoned[0]
all avenues of direct appeal from the conviction.
(b) The fee owner or an intermediate lessor terminates the
lease by giving written notice of termination to the tenant or
occupant within six months after the right to terminate arises
under this section. The right to possess the property reverts to
the landlord on the 10th day after the date the notice is given.
(c) This section applies regardless of a term of the lease
to the contrary.
Acts 1983, 68th Leg., p. 3627, ch. 576, § 1, eff. Jan. 1, 1984.
§ 91.004. LANDLORD'S BREACH OF LEASE; LIEN.
(a) If the
landlord of a tenant who is not in default under a lease fails to
comply in any respect with the lease agreement, the landlord is
liable to the tenant for damages resulting from the failure.
(b) To secure payment of the damages, the tenant has a lien
on the landlord's nonexempt property in the tenant's possession and
on the rent due to the landlord under the lease.
Acts 1983, 68th Leg., p. 3627, ch. 576, § 1, eff. Jan. 1, 1984.
§ 91.005. SUBLETTING PROHIBITED. During the term of a
lease, the tenant may not rent the leasehold to any other person
without the prior consent of the landlord.
Acts 1983, 68th Leg., p. 3627, ch. 576, § 1, eff. Jan. 1, 1984.
§ 91.006. LANDLORD'S DUTY TO MITIGATE DAMAGES.
(a) A
landlord has a duty to mitigate damages if a tenant abandons the
leased premises in violation of the lease.
(b) A provision of a lease that purports to waive a right or
to exempt a landlord from a liability or duty under this section is
void.
Added by Acts 1997, 75th Leg., ch. 1205, § 8, eff. Sept. 1, 1997.
