It’s The Law – Learn everything you need to know going into 2022.

WHAT’S NEW IN ’22?

Learn everything you need to know going into 2022.

WHO CAN PREDICT the future? Who would’ve thought that at the end of 2021, we would still be dealing with COVID19? Who would’ve thought that rental assistance would affect our eviction process? Who would’ve thought that rental assistance was necessary when every business needs employees? Who would’ve thought that the Texans would have a bad season? (Well, some things may actually be predictable!)

It’s always helpful to prepare for the future. As we embark on 2022, let’s take a look at some legal issues that may affect your operations this year.

Remote Judicial Proceedings

In the 45th emergency order issued by the Supreme Court of Texas, the court continues the pattern and practice of authorizing courts to allow or require anyone involved in any hearing, deposition or any other proceeding of any kind to participate remotely, such as teleconferencing, video conferencing or other means. Although the court’s order expires February 1, 2022, the remote hearing option has been fairly well received by lawyers, their clients and, to a lesser extent, judges. Chances are remote proceedings will live past the pandemic.

How can we plan for this? Before you go to an eviction proceeding, you’ll need to be prepared to know: (i) whether or not the proceeding is in person or remote; (ii) if it’s remote, that you are able to access the appropriate technology; (iii) how to present evidence and witnesses to the court; (iv) and that your witnesses are able to access the applicable technology.

The Eviction Delays

The Texas Rules of Civil Procedure provide that the trial in an eviction case must not be less than 10 days nor more than 21 days after the petition is filed. However, the 45th emergency order reiterates what has been in emergency orders throughout the pandemic that courts may, without a participant’s consent, modify or suspend certain deadlines and procedures. The current emergency order provides that a court may modify or suspend trial-related deadlines and procedures and deadlines and procedures for pre-trial hearings for a stated period ending no later than March 1, 2022.

The order states that Justice courts that have not already done so should move swiftly to return to regular pre-trial and trial proceedings as soon as reasonably feasible before March 1, 2022. What this seems to say with respect to the eviction process is that any eviction that is filed on or before March 1, 2022, should be tried no later than March 22, 2022 (21 days after March 1).

When will we get back to trial settings within 21 days from the date the petition is filed? Many courts already comply with the 21-day rule. However, courts that have not complied with this rule should be working to catch up and organize their dockets so that any eviction filed on or before March 1, 2022 can be tried by March 22, 2022.

Keep your fingers crossed!

30-Day Notices to Vacate

Probably the biggest concern apartment owners are continuing to have is the requirement to give a 30-day notice to vacate in nonpayment of rent cases if your property is subject to the CARES Act.

As you know, the CARES Act is federal legislation that went into effect March 27, 2020. Section 4024 (c) of the CARES Act provides that the owner of a dwelling covered by the CARES Act: (i) may not require the resident to vacate the dwelling before the date that is 30 days after the date on which the owner provides As we embark on 2022, let’s take a look at some legal issues that may affect your operations this year. the resident with a notice to vacate; and (ii) may not issue a notice to vacate until after the expiration of the CARES Act moratorium (which expired in July 2020).

While many portions of the CARES Act have expired, unfortunately Section 4024 (c) does not have an expiration date. While arguments can be made that this section should no longer apply, in 2022, both HUD and the Federal Housing Finance Agency (the agency that is involved with federally backed loans) made announcements requiring a 30-day notice to vacate in nonpayment of rent cases.

Until Congress, the courts or an applicable federal agency act, the 30-day notice requirement will not change. In other words, you may want to plan for this requirement extending beyond the pandemic.

Rental Assistance

Various pieces of federal legislation from the CARES Act to the American Rescue Plan have authorized billions of dollars in rental assistance to be paid to apartment communities when residents cannot pay their rent. Millions of dollars have been distributed through the Texas Rent Relief Program and the Houston Harris County Program. Various other counties have programs that HAA members have taken advantage of, however, funds are limited. The Texas Rent Relief Program stopped taking new applications in November. The Houston Harris County Program has also distributed or committed to distribute its available funds.

In the 44th emergency order, the court continued with previous orders in requiring courts to ask owners whether they have a pending application for rental assistance or whether both the owner and resident are interested in participating in a rental assistance program. If either is the case, the court is required to immediately abate the eviction for 60 days and will reinstate the eviction only if a motion for reinstatement is made indicating that the application for rental assistance has been denied, cancelled or withdrawn.

If the case is not reinstated within the 60day abatement period, the court is required to dismiss the case with prejudice. This means that the eviction action (based on the same defaults) can’t be brought again.

The 44th emergency order expires January 1, 2022. In light of the evaporation of rental assistance funds, it would appear that the court would not extend this portion of its order. If the order is not extended, the justice courts may no longer be involved in rental assistance programs.

Legal Aid

The 45th emergency order provides that at the trial, the Justice of the Peace must allow, if available, representatives from legal aid organizations or volunteer legal services, to be present, in person or remotely, to provide information, advice, intake, or other assistance for eligible litigants. Although this emergency order expires January 1, 2022, this or something like it may extend beyond the pandemic.

Flood Disclosure

As you should be aware, a new law was passed in the last regular legislative session which requires owners to make certain disclosures regarding floods that have affected their property.

The new law requires owners to disclose whether the property is located in a 100-year flood plain and whether they are aware that the dwelling the resident is renting has flooded at least once within the last 5 years. The law applies to a lease entered into or renewed on or after January 1, 2022. Consequently, if you sign the lease on or after January 1, 2022, the flood disclosure notice should be given at or before the execution of the lease. If you have a lease that is renewing on a month-to-month basis, the flood disclosure notice should be given at or before the 1st renewal that occurs on or after January 1, 2022.

Be prepared to give the flood disclosure to any residents who sign or renew leases on or after the beginning of the year.

New TAA Lease

As you may be aware, the TAA is coming out with a new lease. The new lease is scheduled to available in the middle of February 2022, and it will look a little different than the old lease. The lease is a little shorter (six pages instead of eight pages) and contains most of the lease details (with the blanks that have to be filled in) on the first page.In the new lease, much of the content is the same. It still has many of our favorite paragraphs as the old lease, although they will be in different places in the new lease. You will need to be familiar with where your favorite paragraphs are located so you can answer questions from residents, point out provisions to judges and be able to identify the parties’ rights and responsibilities to resolve a particular issue or circumstance. For example, the rent paragraph is no longer paragraph 6. The rent provisions are paragraph 3. The conduct provisions are no longer in paragraph 20. They are in paragraph 11. The default paragraph is no longer paragraph 32. The default provisions are in paragraph 23.

One of the changes is that the early termination option which was previously contained in a separate addendum is now in the lease. However, keep in mind that the early termination option is not an option available to a resident who is in default of a lease. Residents who are in default of a lease would be subject to paying the reletting charge, accelerated rent and other damages associated with the default. A resident who exercises the early termination option would be required to pay the early termination fee and repay all rent concessions, credits or discounts received during the lease term.

Liability Protection When Serving Writs

A new Texas law provides that an owner is not liable for damages to the resident resulting from the execution of a writ of possession by a constable. This law applies to the execution of a writ issued in an eviction suit filed on or after September 1, 2021.

This new law could be valuable if there’s any claim by a resident after the constable has authorized you to remove the resident’s property from the unit. This also emphasizes the need to have a writ served if you have a judgment for possession and there is a question whether the resident has moved out of the unit. If there is a question if the resident has moved out, the writ should be requested (by you) and served (by the constable). This law protects you from damages that may occur from the execution of the writ.

Anticipate the Unknown!

One thing we can be sure to predict in 2022 is that we won’t be able to predict everything that happens in 2022. If we have learned anything over the past two years, we’ve learned that our policies, procedures and operations can be forced to change quickly. As we come out of the pandemic (hopefully) we need to be aware of any new issues that come up and be flexible enough to adapt to the new environment and surroundings.

Hopefully this gives you some food for thought to be able to plan at least the beginning of 2022. Happy New Year and good luck!