By: Barrientos S.B. No. 1678
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
AN ACT
1-1 relating to certain procedures concerning landlords and tenants of
1-2 residential real property.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 92.056, Property Code, is amended to read
1-5 as follows:
1-6 Sec. 92.056. LANDLORD LIABILITY AND TENANT REMEDIES.
1-7 (a) The landlord's duty under this subsection is subject to
1-8 Section 92.052(b) regarding conditions that are caused by the
1-9 tenant and Section 92.054 regarding conditions that are insured
1-10 casualties. A landlord has a duty to repair or remedy a condition
1-11 and is liable to a tenant as provided by this subchapter if:
1-12 (1) the condition materially affects the physical
1-13 health or safety of an ordinary tenant;
1-14 (2) the tenant has given the landlord notice to repair
1-15 or remedy the condition as required by Subsection (a) of Section
1-16 92.052;
1-17 (3) the landlord has had a reasonable time to repair
1-18 or remedy the condition, considering the nature of the problem, the
1-19 time the landlord knew or should have known about the problem, and
1-20 the reasonable availability of materials, labor, and utilities from
1-21 a utility company;
2-1 (4) [judicial remedies;]
2-2 [(5)] the landlord has not made a diligent effort to
2-3 repair or remedy the condition; and
2-4 (5) [(6)] the tenant was not delinquent in the payment
2-5 of rent at the time the notice [notices] required by Subdivision
2-6 [Subdivisions] (2) was [and (4) of the subsection were] given.
2-7 [The landlord's duty under this subsection is subject to the
2-8 provisions of Subsection (b) of Section 92.052 regarding conditions
2-9 which are caused by the tenant and Section 92.054 regarding
2-10 conditions which are insured casualties.]
2-11 (b) Except as provided in Subsection (c) [of this section],
2-12 a tenant to whom a landlord is liable under Subsection (a) [of this
2-13 section] may:
2-14 (1) terminate the lease if the condition is not
2-15 repaired or remedied within seven days after the tenant's notice
2-16 given in accordance with Section 92.052(a) [of intent to
2-17 terminate];
2-18 (2) have the condition repaired or remedied according
2-19 to Section 92.0561;
2-20 (3) deduct from the tenant's rent, without necessity
2-21 of judicial action, the cost of the repair or remedy according to
2-22 Section 92.0561; or [and]
2-23 (4) obtain judicial remedies according to Section
2-24 92.0563 if the condition is not repaired or remedied within seven
2-25 days after the tenant's notice given in accordance with Section
3-1 92.052(a) [of intent to repair or remedy].
3-2 (c) A tenant who elects to terminate the lease under
3-3 Subsection (b) and vacates the premises not later than the 30th day
3-4 after the date the lease is terminated [of this section] is:
3-5 (1) released from the obligation to pay rent and is
3-6 entitled to a pro rata refund of rent from the date the tenant
3-7 gives notice in accordance with Section 92.052(a) [of termination
3-8 or the date the tenant moves out, whichever is later];
3-9 (2) entitled to [deduct the tenant's security deposit
3-10 from the tenant's rent without necessity of lawsuit or obtain] a
3-11 refund of the tenant's security deposit according to law; and
3-12 (3) not entitled to the other repair and deduct
3-13 remedies under Section 92.0561 or the judicial remedies under
3-14 Subdivisions (1) and (2) of Subsection (a) of Section 92.0563.
3-15 (d) For purposes of Subsections (a)(3) and (4), a landlord
3-16 is presumed to have had a reasonable time and not made a diligent
3-17 effort to repair or remedy a condition if the landlord has not
3-18 responded to a tenant's written notice given in accordance with
3-19 Section 92.052(a) by mailing or otherwise delivering to the tenant
3-20 on or before the fifth day after the date the tenant's notice is
3-21 received a written notice that:
3-22 (1) denies the existence of the condition complained
3-23 of by the tenant, states the condition is one that the landlord
3-24 does not have a duty to repair or remedy as provided under Section
3-25 92.052(b), or states the condition is an insured casualty that the
4-1 landlord is not required or not yet required to repair, as
4-2 applicable, as provided under Section 92.054;
4-3 (2) denies the condition materially affects the
4-4 physical health and safety of an ordinary tenant;
4-5 (3) asserts the tenant's notice was given at a time
4-6 the tenant was delinquent in paying rent; or
4-7 (4) explains a plan of action to address the
4-8 condition, including the activities to be performed and a specific,
4-9 reasonable period for completion of each activity.
4-10 (e) If a landlord in bad faith sends a notice to a tenant
4-11 under Subsection (d), the tenant is entitled to:
4-12 (1) actual damages;
4-13 (2) additional damages not to exceed twice the actual
4-14 damages; and
4-15 (3) a civil penalty under Section 92.0563.
4-16 SECTION 2. Sections 92.0561(b)-(d), Property Code, are
4-17 amended to read as follows:
4-18 (b) The tenant's deduction for the cost of the repair or
4-19 remedy may not exceed the amount of two [one] month's rent under
4-20 the lease. However, if the tenant's rent is subsidized in whole or
4-21 in part by a governmental agency, the deduction limitation of two
4-22 [one] month's rent shall mean the fair market rent for the dwelling
4-23 and not the rent that the tenant pays. The fair market rent shall
4-24 be determined by the governmental agency subsidizing the rent, or
4-25 in the absence of such a determination, it shall be a reasonable
5-1 amount of rent under the circumstances.
5-2 (c) Repairs and deductions under this section may be made as
5-3 often as necessary so long as the total repairs and deductions in
5-4 any two-month period [one month] do not exceed two months' [one
5-5 month's] rent.
5-6 (d) Repairs under this section may be made only if all of
5-7 the following requirements are met:
5-8 (1) The landlord has a duty to repair or remedy the
5-9 condition under Section 92.052, and the duty has not been waived in
5-10 a written lease by the tenant under Subsection (e) or (f) of
5-11 Section 92.006.
5-12 (2) The tenant has given notice [notices] to the
5-13 landlord as required by Section 92.056, and a [the second or last]
5-14 notice by the tenant to the landlord states that the tenant intends
5-15 to repair or remedy the condition. On written request by the
5-16 landlord, the tenant [The notice] shall give the landlord [also
5-17 contain] a reasonable description of the intended repair or remedy.
5-18 (3) Any one of the following events has occurred:
5-19 (A) There is [The landlord has failed to remedy
5-20 the] backup or overflow of raw sewage inside the tenant's dwelling
5-21 or [the] flooding from broken pipes or natural drainage inside the
5-22 dwelling.
5-23 (B) The landlord has expressly or impliedly
5-24 agreed in the lease to furnish potable water to the tenant's
5-25 dwelling and the water service to the dwelling has totally ceased.
6-1 (C) The landlord has expressly or impliedly
6-2 agreed in the lease to furnish heating or cooling equipment and [;]
6-3 the equipment is producing inadequate heat or cooled air[; and the
6-4 landlord has been notified in writing by the appropriate local
6-5 housing, building, or health official or other official having
6-6 jurisdiction that the lack of heat or cooling materially affects
6-7 the health or safety of an ordinary tenant].
6-8 (D) A [The landlord has been notified in writing
6-9 by the appropriate local housing, building, or health official or
6-10 other official having jurisdiction that the] condition exists at
6-11 the leased premises that materially affects the health or safety of
6-12 an ordinary tenant.
6-13 SECTION 3. Subchapter B, Chapter 92, Property Code, is
6-14 amended by adding Section 92.0564 to read as follows:
6-15 Sec. 92.0564. OTHER JUDICIAL REMEDIES. (a) A governmental
6-16 entity or civic association acting on a tenant's behalf may give
6-17 notice and file suit against a landlord to enjoin a violation of
6-18 this subchapter.
6-19 (b) A governmental entity or civic association that prevails
6-20 in a suit brought under Subsection (a) may recover court costs and
6-21 reasonable attorney's fees.
6-22 SECTION 4. Section 92.201, Property Code, is amended by
6-23 adding Subsections (g) and (h) to read as follows:
6-24 (g) Notwithstanding Subsection (e), a landlord who obtains
6-25 ownership of the dwelling rented by the tenant during the tenant's
7-1 lease term shall disclose in writing to the tenant the date of the
7-2 change in ownership and the information required under Subsection
7-3 (a)(1). That disclosure must be made before the first day of the
7-4 month following the date of the change in ownership but not later
7-5 than the 15th day after the date of the change in ownership.
7-6 (h) Notwithstanding Subsection (e), a landlord who begins
7-7 using or changes a management company to manage the dwelling rented
7-8 by the tenant during the tenant's lease term shall disclose in
7-9 writing to the tenant the date of the change in management and the
7-10 information required under Subsection (a)(2). That disclosure must
7-11 be made before the first day of the month following the date of the
7-12 change in management but not later than the 15th day after the date
7-13 of the change in management.
7-14 SECTION 5. Chapter 24, Property Code, is amended by adding
7-15 Sections 24.0051 and 24.0052 to read as follows:
7-16 Sec. 24.0051. RESIDENTIAL TENANT'S RIGHT TO CURE DEFAULT
7-17 BEFORE EVICTION SUIT FILED. (a) Except as provided by Subsection
7-18 (e), a residential tenant who defaults under a written or oral
7-19 lease may avoid termination of the lease by complying with the
7-20 lease terms not later than the third day after the date the notice
7-21 of default required by this section is delivered.
7-22 (b) A landlord who intends to terminate the lease of a
7-23 tenant in default must notify the tenant in writing. Delivery of
7-24 the notice is sufficient if it is:
7-25 (1) delivered by regular mail or by registered or
8-1 certified mail, return receipt requested;
8-2 (2) delivered in person to the tenant or to any person
8-3 residing at the premises who is at least 16 years of age; or
8-4 (3) affixed to the inside of the main entry door to
8-5 the premises.
8-6 (c) The notice must:
8-7 (1) state that the tenant is in default under the
8-8 lease;
8-9 (2) inform the tenant of the tenant's right to cure
8-10 the default; and
8-11 (3) specify the nature of the default, the action
8-12 required to cure the default, and the period available to cure the
8-13 default.
8-14 (d) If the tenant cures the default as required by the
8-15 notice, the landlord may not:
8-16 (1) terminate the lease;
8-17 (2) terminate the tenant's right to possession of the
8-18 premises;
8-19 (3) give the tenant notice to vacate; or
8-20 (4) file a forcible detainer suit based on the default
8-21 cured by the tenant.
8-22 (e) Unless the lease provides otherwise, a tenant does not
8-23 have a right to cure a default that resulted from violent criminal
8-24 activity or an illegal drug related activity.
8-25 Sec. 24.0052. RESIDENTIAL TENANT'S RIGHT TO CURE DEFAULT
9-1 AFTER EVICTION SUIT FILED. (a) If a landlord prevails in a
9-2 forcible detainer suit against a residential tenant and the court
9-3 enters a judgment awarding the landlord possession of the premises
9-4 based solely on nonpayment or late payment of rent, the court,
9-5 before issuing a writ of possession, shall:
9-6 (1) determine the payment amount required to cure the
9-7 default;
9-8 (2) enter the payment amount on the court docket; and
9-9 (3) notify the tenant at the hearing or, in the event
9-10 of a default judgment, by postcard notice, of:
9-11 (A) the tenant's right to cure the default;
9-12 (B) the payment amount required to cure the
9-13 default; and
9-14 (C) the period available to cure the default.
9-15 (b) The tenant may cure the default on or before the fifth
9-16 day after the date the judgment of the court is signed by
9-17 depositing the payment amount in the registry of the court. If the
9-18 court is closed on the last day available for the tenant to cure
9-19 the default, the period to cure is extended to the next day the
9-20 court is open for business.
9-21 (c) If a tenant complies with Subsection (b), the court:
9-22 (1) shall release the judgment, reinstate the tenant
9-23 under the lease, and transfer the deposited funds to the landlord;
9-24 and
9-25 (2) may not issue a writ of possession in favor of the
10-1 landlord.
10-2 (d) The payment amount necessary to cure the default is the
10-3 sum of:
10-4 (1) the delinquent rent, excluding any amount
10-5 accelerated because of the default;
10-6 (2) reasonable late fees owed to the landlord; and
10-7 (3) any court costs assessed against the tenant by the
10-8 court.
10-9 SECTION 6. Section 24.0061, Property Code, is amended to
10-10 read as follows:
10-11 Sec. 24.0061. Writ of Possession. (a) A landlord who
10-12 prevails in a forcible entry and detainer or a forcible detainer
10-13 action is entitled to a judgment for possession of the premises and
10-14 a writ of possession. In this chapter, "premises" means the unit
10-15 that is occupied or rented and any outside area or facility that
10-16 the tenant is entitled to use under a written lease or oral rental
10-17 agreement, or that is held out for the use of tenants generally.
10-18 (b) A writ of possession may not be issued before the sixth
10-19 day after the date on which the judgment for possession is rendered
10-20 unless a possession bond has been filed and approved under the
10-21 Texas Rules of Civil Procedure and judgment for possession is
10-22 thereafter granted by default.
10-23 (c) The court shall notify a tenant in writing of a default
10-24 judgment for possession by sending a copy of the judgment to the
10-25 premises by first class mail not later than 24 hours after the
11-1 entry of the judgment.
11-2 (d) The writ of possession shall order the officer executing
11-3 the writ to [deliver possession of the premises to the landlord and
11-4 to]:
11-5 (1) Post a written notice printed on brightly colored
11-6 poster board of at least 8-1/2 by 11 inches on the exterior of the
11-7 front door of the rental unit notifying the tenant that the writ
11-8 has been issued and that the writ will be executed on or after a
11-9 specific date and hour stated in the warning, but not sooner than
11-10 24 hours after the warning is posted; and
11-11 (2) When the writ is executed:
11-12 (A) deliver possession of the premises to the
11-13 landlord;
11-14 (B) [(1)] instruct the tenant and all persons
11-15 claiming under the tenant to leave the premises immediately, and,
11-16 if the person fail to comply, physically remove them;
11-17 (C) [(2)] instruct the tenant to remove or to
11-18 allow the landlord, the landlord's representatives, or other
11-19 persons acting under the officer's supervision to remove all
11-20 personal property from the rental unit other than personal property
11-21 claimed to be owned by the landlord; and
11-22 (D) [(3)] place, or have an authorized person
11-23 place, the removed personal property outside the rental unit at a
11-24 nearby location, but not blocking a public sidewalk, passageway, or
11-25 street and not while it is raining, sleeting, or snowing.
12-1 (e) [(d)] The writ of possession shall authorize the
12-2 officer, at the officer's discretion, to[:]
12-3 [(1) post a written warning on the exterior of the
12-4 front door of the rental unit, notifying the tenant that the writ
12-5 has been issued and that it will be executed on or after a specific
12-6 date and time stated in the warning; and]
12-7 [(2)] engage the services of a bonded or insured
12-8 warehouseman to remove and store, subject to applicable law, part
12-9 or all of the property at no cost to the landlord or the officer
12-10 executing the writ.
12-11 (f) [(e)] The officer may not require the landlord to store
12-12 the property.
12-13 (g) [(f)] The writ of possession shall contain notice to the
12-14 officer that under Section 7.003, Civil Practice and Remedies Code,
12-15 the officer is not liable for damages resulting from the execution
12-16 of the writ if the officer executes the writ in good faith and with
12-17 reasonable diligence.
12-18 (h) [(g)] An officer may, if necessary, use reasonable force
12-19 in executing a writ under this section.
12-20 SECTION 7. Chapter 92, Property Code, is amended by adding
12-21 Subchapter I, to read as follows:
12-22 SUBCHAPTER I. TENANT REPORTING. Sec. 92.350. TENANT
12-23 REPORTING SERVICES. As used in this Subchapter "tenant reporting
12-24 service" means a person or organization engaging in the practice of
12-25 assembling or reporting information regarding individual
13-1 residential tenants, for the purpose of furnishing such tenant
13-2 information to third parties.
13-3 Sec. 92.351. PROHIBITION AGAINST SUBMITTING FALSE OR
13-4 DISPUTED MATTERS. (a) A person who knowingly furnishes false
13-5 tenant information regarding another person to a tenant reporting
13-6 service is liable to the tenant for actual damages, plus a civil
13-7 penalty of $500, court costs and reasonable and necessary
13-8 attorney's fees.
13-9 (b) If a tenant has exercised a right to unilaterally
13-10 terminate the lease, withhold rent, use the security deposit for
13-11 rent, or repair and deduct, according to this Chapter, the landlord
13-12 and management company may not issue statements to a tenant
13-13 reporting service regarding any claim the landlord or management
13-14 company may have against the tenant based upon an alleged improper
13-15 exercise unless such a claim has been judicially determined.
13-16 Sec. 92.352. RIGHT TO NOTICE OF REPORT USED. If a landlord
13-17 or management company rejects a prospective tenant based in whole
13-18 or in part on information provided by a tenant reporting service,
13-19 the landlord or management company must inform the tenant, upon
13-20 request within five days, of the name, address and telephone number
13-21 of the tenant reporting service and the information obtained from
13-22 the tenant reporting service, and give a copy of any written report
13-23 without charge to the tenant.
13-24 Sec. 92.353. REMEDIES FOR VIOLATION. (a) In addition to
13-25 other remedies provided by law, a landlord or management company
14-1 who violates any provision of this Subchapter is liable to the
14-2 tenant for actual damages, plus a civil penalty of $500, court
14-3 costs and reasonable and necessary attorney's fees.
14-4 (b) In addition to the remedies provided in Subsection (a)
14-5 of this Section, if a landlord or management company is notified of
14-6 a violation of any provision of this Subchapter in writing, and
14-7 fails to withdraw or otherwise correct the information given to the
14-8 tenant reporting service within 10 days, then the tenant is further
14-9 entitled to injunctive relief, and an additional civil penalty of
14-10 $1,000.
14-11 SECTION 8. (a) This Act takes effect September 1, 1997.
14-12 (b) The changes in law made by Sections 1, 2, 3 and 4 of
14-13 this Act apply only to residential leases entered into or renewed
14-14 on or after September 1, 1997. Residential leases entered into or
14-15 renewed before that date are covered by the law as it existed at
14-16 the time the lease was entered into or renewed, and the former law
14-17 is continued in effect for that purpose.
14-18 (c) The change in law made by Section 5 of this Act applies
14-19 only to a tenant who defaults on or after the effective date of
14-20 this Act.
14-21 (d) The change in law made by Section 6 of this Act applies
14-22 only to a judgment for possession that is rendered on or after the
14-23 effective date of this Act. A judgment for possession that was
14-24 rendered before the effective date of this Act is governed by the
14-25 law in effect when the judgment was rendered, and the former law is
15-1 continued in effect for that purpose.
15-2 SECTION 9. The importance of this legislation and the
15-3 crowded condition of the calendars in both houses create an
15-4 emergency and an imperative public necessity that the
15-5 constitutional rule requiring bills to be read on three several
15-6 days in each house be suspended, and this rule is hereby suspended.