10 minute read
It’s The Law – The good, the bad and the ugly of the 2021 legislative session.
from ABODE July 2021
2021 LEGISLATIVE SESSION
The good, the bad and the ugly! (Part 1)
FROM JANUARY 12, 2021, through May 31, 2021, the Texas legislators went to work in Austin. There were 6,927 bills filed. Of those, 1,070 bills were sent to the governor. The governor can sign a bill, veto a bill or allow a bill to become law without his signature. For bills sent to the governor at the end of the session, the governor has until June 20, 2021 to act. If the governor does not act, the bill will become law.
In an effort to provide you with as timely information as possible, this article is being written prior to the June 20 deadline. The bills discussed below that have been passed by the House of Representatives and Senate will become law unless the governor vetoes them.
This is part one of a two-part series of articles addressing legislation that has passed.
Right to Vacate and Avoid Liability Following Certain Sex Offenses or Stalking
Modifies Section 92.0161 of the Property Code
Effective September 1, 2021 (HB 375)
1. Background:
According to the bill analysis:
The prevalence of sexual abuse of persons with disabilities is deeply problematic. According to the federal Bureau of Justice Statistics, the rate of sexual assault against persons with disabilities is three and a half times higher compared to persons without disabilities and more than seven times higher against persons with intellectual disabilities. Current protections from continuous sexual assault in place for children also are appropriate for adults who are unable to consent. The offense of continuous sexual abuse of a child is a firstdegree felony punishable by imprisonment for life or for a minimum of 25 years or maximum of 99 years.
2. The Change:
Pursuant to Section 92.0161 of the Property Code, a resident has certain rights to terminate a lease if the resident was the victim of certain sex offenses or stalking. Section 92.0161(c) was modified to change the reference to one of the types of offenses that could trigger a resident’s rights under this statute. If the resident was the victim of continuous sexual abuse of a young child or disabled individual under Section 21.02 of the Penal Code, the resident would have rights under this Property Code section. This change reflects a corresponding change in the Penal Code regarding this offense.
Notice for a Dwelling Located in a Floodplain
Adds Section 92.0135 to the Property Code
Effective for leases entered into or renewed on or after January 1, 2022 (HB 531) 1. Background:
According to the bill analysis:
There are concerns that renters in areas susceptible to flooding may be unaware of that risk. Although state law requires a person selling real property to disclose to prospective homeowners whether the property is located in a floodplain, there is no similar requirement with respect to notice of the potential for flooding by an apartment owner to their renters. This bill seeks to ensure that apartment residents are equipped with the information necessary to make informed decisions regarding the safest place for them to rent by requiring an apartment owner to provide to a renter a written notice indicating whether the owner is aware that the leased dwelling is located in a 100-year floodplain and whether the
In an effort to provide you with as timely information as possible, this article is being written prior to the June 20 deadline. The bills discussed below that have been passed by the House of Representatives and Senate will become law unless the governor vetoes them. dwelling has sustained flood damage in the proceeding five-year period.
2. The Change:
An apartment owner is required to provide a renter a written notice substantially equivalent to the following: The landlord (___) is or The landlord (___) is not aware that the dwelling you are renting is located in a 100-year floodplain. If neither box is checked, you should assume the dwelling is in a 100-year floodplain. Even if the dwelling is not in a 100-year floodplain, the dwelling may still be susceptible to flooding. The Federal Emergency Management Agency (FEMA) maintains a flood map on its internet website that is searchable by address, at no cost, to determine if a dwelling is located in a flood hazard area. Most tenant insurance policies do not cover damages or loss incurred in a flood. You should seek insurance coverage that would cover losses caused by a flood. Exception: An apartment owner is not required to disclose on the notice that the owner is aware that a dwelling is located in a 100-year floodplain if the elevation of the dwelling is raised above the 100-year floodplain flood levels in accordance with federal regulations. If an apartment owner knows that flooding has damaged any portion of a dwelling at least once during the five-year period immediately preceding the effective date of the lease, the owner shall provide a written notice to a resident that is substantially equivalent to the following:
The notice required by this statute must be included in a separate written document given to the resident at or before execution of the lease.
• A “100-year floodplain” means any area of land designated as a flood hazard area with 1% or greater chance of flooding each year by FEMA under the National Flood Insurance Act of 1968. • “Flooding” means a general or temporary condition of partial or complete inundation of dwelling caused by: a. the overflow of inland or tidal waters; b. the unusual and rapid accumulation of runoff or surface waters from any established water source such as a river, stream, or drainage ditch; or c. excessive rainfall.
Penalty: If an apartment owner violates this section and a renter suffers a substantial loss or damage to their personal property as a result of flooding, the renter may terminate the lease by giving a written notice of termination to the owner not later than the 30th day after the date the loss or damage occurred. For the purposes of this subsection, a renter suffers a substantial loss or damage to personal property if the total cost of repairs to or replacement of the personal property is 50% or more of the personal property’s market value on the date the flooding occurred. Termination of the lease under this subsection is effective when the resident surrenders possession of the dwelling.
No later than the 30th day after the effective date of the termination of a lease under this statute, the owner shall refund to the resident all rent or other amounts paid in advance under the lease for any period after the effective date of the termination of the lease.
This section does not affect a renter’s liability for delinquent, unpaid rent or other sums owed
Access to a Residence or Former Residence to Retrieve Certain Personal Property
Modifies Section 24A.002 of the Property Code
Effective September 1, 2021 (HB 1012)
1. Background:
According to the bill analysis:
Justice courts have broad jurisdiction to issue decrees granting persons access to a residence or former residence to retrieve personal property. When the person seeking such a decree, however, is a party in an ongoing divorce proceeding, a justice court is not the appropriate venue. The court in which a suit relating to the marriage relationship is pending or the court having jurisdiction of a divorce or annulment action should have the authority to grant an individual access to a residence to retrieve specific items of personal property while accompanied by a peace officer. H.B. 1012 would grant courts hearing a dissolution of marriage case exclusive jurisdiction to grant a party in the case access to a residence or former residence to retrieve personal property.
2. The Change:
The change in the law relates to the court that can issue the writ and the type of personal property that can be retrieved.
The current law provides that the application is made to, and the writ is issued by, a justice court. The new law specifies that if the person and the current occupant are parties to a pending suit under the family code, the application would be made to the court in which the suit is pending. If the person’s right of possession is subject to a divorce decree or annulment action, the application should be made to the court having jurisdiction over the divorce or annulment. An application made for any other persons are still required to be made to the justice court.
The personal items that can be retrieved have been extended to: (i) assistance animals; (ii) wireless communication devices; and (iii) tools, equipment, books, and apparatuses used by the applicant in the applicant’s trade or profession.
If you are served with a writ authorizing a resident or former resident to enter into a unit accompanied by a peace officer, no matter what court issued the writ, you should comply with it and allow the peace officer to accompany the resident to retrieve the items of personal property authorized by the writ.
Trespass on Apartment Properties Amends Article 14.06(d) of the Code of Criminal Procedure Effective September 1, 2021 (SB 237)
1. Background:
According to the bill analysis: The court system is overburdened with hearings and other proceedings regarding certain minor criminal offenses that would be better resolved outside the court system.
SB 237 will provide a peace officer the discretion of issuing a citation to a person charged with committing a Class B misdemeanor offense of criminal trespass instead of taking the person before a magistrate. It will allow the peace officer discretion as to how to handle criminal trespassing calls more effectively and more efficiently. It will allow a responding peace officer to make a decision as to when an arrest is appropriate. In domestic dispute situations, for example, peace officers maintain the authority to arrest the offender.
The point of the bill is to help speed up the process of dealing with those relatively minor offenses to free up the officer’s time so that they can deal with more serious public safety concerns. SB 237 gives officers another “tool in their toolbelts” to deal with low-level crime.
2. The Change:
Article 14.06(a) of the Code of Criminal Procedure provides that a person arrested under this article must be taken before a magistrate. Article 14.06(c) provides that if the person resides
in the county where the offense occurred, a peace officer who is charging a person with committing an offense that is a Class A or Class B misdemeanor may, instead of taking the person in front of a magistrate, issue a citation to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.
The new law revises Article 14.06(d), which lists the types of offenses that allow the peace officer to issue a citation, rather than taking the person before a magistrate. The new law adds to this list an offense under Section 30.05 of the Penal Code if the offense is punishable under Subsection (d)(1) of that section. Section 30.05 of the Penal Code provides that a person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle parked, a building, or an aircraft or other vehicle, without the effective consent and the person had noticed that the entry was forbidden and received notice to depart but failed to do so.
The result of this new law is that the person trespassing an apartment property can be cited by the police, rather than being arrested by the police. The desired consequence of the new law is that police will be more likely to confront a trespasser because they only have to give a citation rather than take the time to arrest and take custody of the person.
Hopefully, this gives you a head start on some of the new laws that will affect the operation of your apartment communities. I look forward to presenting part two of this series in next month’s ABODE magazine.
