I have found that landlords generally confront the same set of issues and have the same set of questions pertaining to their rights, duties and obligations as landlords under Texas law. The answers to these questions depend on whether residential tenants or commercial tenants are involved. Although commercial and residential character ownership and operation have some similarities, the differences are numerous and different enough to justify separate treatment for each area. This article is intended to discuss issues related to commercial character with commercial tenants only. This article is my attempt to create a quick and very general reference guide on the rights, duties and obligations of commercial landlords and operators under the Texas character Code. It is by no method complete, but hopefully is informative enough to assist the reader in asking informed questions of legal counsel and consequently be more efficient and economical while consulting legal counsel.
You should not take this article as legal advice, and I strongly urge you to seek competent legal advice for your specific situation. The Texas legislature updates and passes new laws relating to landlord/tenant issues on a regular basis. In addition, Texas courts regularly interpret these laws. consequently, the laws discussed in this article are in effect as of December 2005. I have not assumed any duty or obligation to update this article beyond this date.
I. Duty to Mitigate
If a tenant abandons the leased premises in breach of the lease, the landlord has the duty to mitigate (lessen) the damages that the landlord would experience as a consequence of the abandonment. consequently, the landlord should not let the premises lie vacant in hopes of being able to retrieve lost rents from the tenant. This duty to mitigate damages may not be waived by the tenant, so any provision in the lease that tries to waive this duty or exempt the landlord from liability is void.
II. Security place
A security place is any improvement of money, other than a rental application place or an improvement payment of rent, that is intended chiefly to obtain performance under a lease.
III. Retention of Security place
Before returning the security place, the landlord may deduct from the place damages or charges for which the tenant is obligated under the lease or resulting from a breach of the lease. However, normal use and tear (does not include decline that results from negligence, carelessness, accident or abuse) may not be withheld from the security place.
If the landlord retains any portion of the security place, the landlord must refund the balance of the security place and give the tenant a written description and itemized list of all deductions. However, this description and itemized list is not required if the tenant owes rent and no controversy exists concerning the amount of rent owed. The refund and written description and itemized list of all deductions is not required until the tenant gives the landlord a written statement of the tenant’s forwarding address for the purpose of refunding the security place. However, failure to provide a forwarding address does not cause the tenant to relinquish its right to receive a refund or a description of deductions.
IV. Refund of Security place
A landlord must refund the security place not later than the 60th day after the date the tenant surrenders the premises and provides notice of the tenant’s forwarding address.
V. Change of Landlord/Owner and the Security place
The new owner or landlord of the leased premises is liable for the return of the security place starting from the date title to the leased premises is acquired, except where the new owner acquired the premises by foreclosure by a real estate mortgage. However, the former landlord or owner remains liable for the security place received while the person was the owner or landlord until the new owner delivers to the tenant a signed statement acknowledging that the new owner has received and is responsible for the tenant’s security place and specifying the exact dollar amount of the place.
VI. Liability of Landlord for Security place
A landlord who in bad faith retains a security place is liable for an amount equal to the sum of $100, three times the portion of the security place wrongfully withheld, and the tenant’s reasonable attorneys fees incurred in a suit to retrieve the place. It is presumed that a landlord who fails to return a security place or to provide a written description and itemized list of deductions on or before the 60th day after the date the tenant surrenders possession is acting in bad faith.
VII. Preventing Access to Leased Premises
A landlord may not deliberately prevent a tenant from entering the leased premises except with permission of the court unless such prevention results from (i) bona fide repairs, construction or an emergency, (ii) removing the contents of the leased premises abandoned by a tenant or (iii) changing the door locks of a tenant who is delinquent in paying at the minimum a part of the rent. The lease may alter this provision.
VIII. Changing Lock Due to Delinquent Payments
If a landlord changes the door lock due to delinquent rent payments, the landlord must place a written notice on the tenant’s front door stating the name and address or telephone number of the individual or company from which the new meaningful may be obtained. The new meaningful is only required to be provided during the tenant’s regular business hours and only if the tenant pays the delinquent rent. The lease may alter this provision.
IX. Landlord’s Removal of character After Abandonment by the Tenant
A landlord may remove and store any character of a tenant that remains after the premises has been abandoned. The landlord may also dispose of the stored character if the tenant does not claim the character within 60 days after the date the character is stored. The landlord must deliver by certified mail to the tenant at the tenant’s last known address a notice stating that the landlord may dispose of the tenant’s character if the tenant does not claim the character within 60 days after the date the character is stored. A lease may alter this provision.
X. Abandonment by the Tenant
A tenant is presumed to have abandoned the premises if goods, equipment or other character, in a substantial enough amount to indicate a probable intent to abandon the premises, is being or has been removed from the premises and the removal is not within the normal course of the tenant’s business. The lease may alter this provision.
XI. Interruption of Utilities
If the tenant pays for utility sets directly to the utilities companies, the landlord may not interrupt or cause the interruption of such sets unless the interruption results from bona fide repairs, construction or an emergency. A lease may alter this provision.
XII. Removal of Doors, Windows, Locks, Hinges, Etc.
A landlord may not remove a door, window, attic hatchway, lock, hinge, hinge pin, doorknob or other mechanism connected to a door, window or attic hatchway cover from the leased premises. Additionally, a landlord may not remove furniture, fixtures or appliances furnished by the landlord from the leased premises. However, the landlord may remove these items for a bona fide repair or substitute, which must be promptly performed. A lease may alter this provision.
XIII. Landlord May Terminate Lease Due to Public Indecency Conviction of Tenant
A landlord may terminate a lease signed or renewed after June 15, 1981 if the tenant or occupant uses the character for an activity for which the tenant, occupant or any of their agent or employee is convicted of public indecency (prostitution, promotion of prostitution, characterize or dispensing of obscene materials, sexual acts with persons under the age of 18, etc.) and such person has depleted or abandoned all avenues of direct popularity from the conviction. Notice of termination must be by written notice within six months after the right to terminate arises. The landlord obtains the right to possess the character on the 10th day after the date of notice is given.
XIV. Notice Requirement Prior to Eviction
The landlord must give a tenant who defaults or holds over beyond the end of the term at the minimum three day’s written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties contracted for a shorter or longer period of time in a written lease or agreement.
The notice to vacate must be given in person or by mail at the premises in question. If notice is delivered in person, it may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail, by registered mail or by certified mail, return receipt requested, to the premises in question. The notice period starts from the day on which the notice is delivered.
Copyright 2005, Tri Nguyen