The Burton Law Firm, P.C. has over 14 years of experience in this area
of the law. If you have questions about this subject please call us
at 713-222-6262; or email Randy Burton at randy@burton-lawfirm.com
or David Torok at david@burton-lawfirm.com or Hannah Heinz at hannah@burton-lawfirm.com.
Landlord-Tenant Disputes
- Can both an oral and written lease be valid?
Yes, but if a lease is for more than one (1) year, it
must be written and signed to be enforceable.
- What should be in a lease?
A lease should contain: (a) a clear, definite description of the property
to be leased; (b) a definite term; and (c) a definite statement of amount, time and manner of paying
rent.
- Can the usual 3-day notice to vacate requirement be changed by the parties' agreement?
Yes.
- Can a landlord and tenant agree that the landlord may breach the peace in locking out the tenant?
No.
- Can a landlord and tenant agree to waive the landlord's duty to mitigate after abandonment?
No.
- Can a landlord's liability for unlawfully locking out a tenant be waived?
No.
- Can a tenant be delinquent for rent but not yet in default?
Yes. Make sure to check any cure
periods and notice requirements in the lease. If the landlord has not yet complied with them, the
tenant can be delinquent in payments but not yet in default under the lease.
- What are some typical non-monetary defaults?
These can include abandonment, bankruptcy,
insolvency, certain changes in control, and numerous other actions specific to the requirements of
the tenant and the landlord. Non-monetary defaults can include any number of alleged violations
of the lease terms, including operating an unapproved business from the premises, using unapproved
signs, health code or environmental violations, unapproved transfer of the tenant's business, and
violations of financial covenants.
- What does a landlord's lien attach to?
Typically, a landlord's lien only attaches to property of
the tenant. Tenants will often try to obtain property stored in the premises after a lockout by
claiming it is owned by a third party and not the tenant. Disputes over this issue can be costly and
subject the landlord to potential conversion claims.
- Can a landlord include a clause accelerating the rent without providing for some form of
reduction so that the total damages approximate an amount of just compensation for the landlord?
No.
- In general, what do most leases give the landlord the option to do?
The landlord can (a)
Terminate the lease; (b) Terminate the tenant's right of possession; O Repossess the leased premises
and evict the tenant; (d) Sue for rent and any damages; and (e) Enforce the landlord's lien rights.
- If the tenant has abandoned the premises, or the tenant has anticipatorily repudiated the lease,
should the landlord should seek to recover rent as it comes due?
Probably not; in that any later
action could be barred by res judicata.
- Will a lease provide for other types of damages?
Yes, sometimes. These could include late
charges, interest and attorneys fees. Other damage provisions may require payment of brokers' fees
for any new tenant and any amounts payed by landlord for build-out of the premises by the new
tenant.
- Upon eviction, should the landlord should take reasonable efforts to re-lease the premises?
Yes.
The landlord is not required to take extraordinary actions or to lease to an unsuitable tenant.
However, the landlord should treat the space left by the evicted tenant like any other space the
landlord wishes to lease. If the landlord customarily notifies brokers about the vacancy, posts a sign,
or advertises, the landlord should do so with the vacated space. In addition, the landlord should keep
a log of each inquiry about the premises, each time the premises was shown, and all efforts to lease
the premises.
- If the landlord pursues an eviction action based on a requirement of the lease that the landlord
has waived, can a successful tenant be entitled to recover its attorneys' fees?
Yes.
- Is a nonwaiver clause bulletproof?
No, because the nonwaiver clause itself can be waived.
- When should the landlord change the locks?
In changing the locks, the landlord should be
careful not to lock anyone in the premises. It is usually advisable for the landlord to change the locks
at a time the tenant will not be present to avoid breaching the peace.
- When can a landlord evict a tenant?
Before a landlord may evict a tenant, the tenant must be
in default under the lease. The default can be a monetary or non-monetary default, as long as the
landlord has the contractual right to terminate possession.
- How can the landlord get attorney's fees?
If the landlord wants to request attorneys' fees, the
landlord is required to give 11 days' notice to vacate and state that, if the tenant fails to vacate, the
tenant may be held responsible for attorneys' fees. However, if the landlord provides this notice, and
if the tenant prevails in the action, the tenant is entitled to its attorneys' fees. This notice must be
sent by registered mail, or by certified mail, return receipt requested, at least 10 days before the date
the suit is filed.
- Should the landlord include damages in the eviction lawsuit?
If the amount of rent is likely to
exceed $5,000.00 by any significant amount, the landlord may be better off filing a suit seeking
damages in a district or county court. The forcible detainer suit will not bar a second suit for
damages, waste, rent, or mesne profits.
- Are there automatic liens?
Yes. Any commercial landlord has a statutory landlord's lien created
automatically by the Texas Property Code.
- Is there a time period for the statutory lien?
Yes. The statutory lien is unenforceable for rent that
is more than 6 months past due unless the landlord has filed a lien statement with the county clerk
of the county in which the building is located. The lien exists while the tenant occupies the building
and until one month after the date that the tenant abandons the building.
|
|
