IT’S OVER

Let’s figure out how the 2023 Legislative Session might affect the apartment industry.

By Howard Bookstaff, Hoover Slovacek LLP, HAA General Counsel

Please note, the printed edition of the July issue of ABODE includes verbiage outlining SB 2493 relating to a resident’s repair and deduct remedies and security deposits. However, the Governor vetoed SB 2493 after the magazine was printed. Consequently, SB 2493 did not become law.

FOR 140 DAYS every odd-numbered year, the Texas Legislature meets to discuss adopting new laws. The 88th regular legislative session began January 10, 2023 and ended May 29, 2023. There were 8,345 bills and resolutions filed and 491 bills were sent to the Governor to be new laws. The Governor has veto power within a certain number of days. However, if the Governor doesn’t veto the bill, the bill becomes law whether or not the Governor signs the bill.

What we could have been talking about …

Although there were a number of bills filed that did not pass, the fact that they were proposed may tell us something about what may come in the future and the environment in which we do business. Consider these concepts that were part of failed bills:

• Requiring a statewide 10-day notice and opportunity to cure before giving a notice to vacate.

• Requiring a statewide 14-day notice to vacate after giving a notice to cure.

• Requiring a statewide right to cure before a writ of possession is executed.

• Requiring owners to include any charges for a mandatory service in the rent and prohibiting owners from charging residents a separate fee for mandatory service.

• Capping what is considered to be a reasonable late fee at $75.

• Prohibiting owners from considering a criminal conviction older than three years before the date a conditional offer is made.

• Allowing owners to withdraw a conditional offer if an applicant’s criminal history involves a conviction that occurred less than three years before the date of the conditional offer only if the owner determines that the withdrawal achieves a substantial, legitimate, nondiscriminatory interest.

What we are talking about …

Eviction Process

Adds Section 1.004 to the Property Code

Effective September 1, 2023 (HB 2127)

1. Background:

This legislation is known as the Texas Regulatory Consistency Act and provides that a number of state codes preempt municipal or county ordinance, orders or rules. According to the Bill Analysis, the purpose of the Act is to provide statewide consistency by returning sovereign regulatory powers to the state where those powers belong in accordance with the Texas Constitution.

2. The Change:

A section is added to the Property Code stating that, unless expressly authorized by another statute, a municipality may not adopt, enforce, or maintain an ordinance, order, or rule regulating conduct in a field of regulation that is occupied by a provision of the Property Code. An ordinance, order or rule that violates this section is void, unenforceable and inconsistent with the Property Code.

For the purposes of this section, a field occupied by a provision of the Property Code includes an ordinance, order or rule regulating evictions or otherwise prohibiting, restricting, or delaying delivery of a notice to vacate or filing a suit to recover possession of the premises under Chapter 24 of the Property Code.

There have been various municipalities that have adopted rules that would delay the eviction process by requiring a notice of proposed eviction prior to giving a notice to vacate.

Austin, Dallas and San Marcos currently have ordinances that require owners to give a notice to a defaulting resident before a notice to vacate can be given. In theory, this law would render those ordinances void and unenforce- able because they would regulate evictions by delaying the delivery of a notice to vacate or filing a suit to recover possession.

Jurisdictional Limit of Repair and Deduct Remedy

Amends Section 92.05063(e) of Property Code (Applies to a cause of action that occurs on or after September 1, 2023) (SB 1259)

1. Background:

According to the Bill Analysis, justice courts provide a more informal setting than district or county courts, so parties will often represent themselves to save money by avoiding hiring an attorney. Justice courts allow citizens to sue for amounts up to $20,000 and also allow owners and residents to resolve disputes that involve repairs. However, under current law, repair disputes can only be subject to a maximum judgment of $10,000. This bill would increase the maximum amount a justice court may award for repair disputes to $20,000.

2. Change:

If the owner is liable for failing to repair or remedy a condition under existing procedures under the Property Code, the resident has certain judicial remedies including an order from the court directing the owner to take reasonable actions to repair or remedy the condition and a judgment against the owner for the amount of the resident’s actual damages.

The change in the law provides that a justice court may not award a judgment under this section, including an order of repair, that exceeds $20,000, excluding interest and costs of court (the only change made to the law is that the court’s jurisdiction is raised from $10,000 to $20,000).

Race Discrimination

Adds Section 301.0045 to the Property Code (Applies to a discriminatory housing practice that occurs on or after September 1, 2023)

(HB 567)

1. Background:

The bill amends current law relating to discrimination on the basis of hair texture or protective hairstyle associated with race.

2. Change:

Under the state’s Fair Housing Act, a provision referring to discrimination because of race or on the basis of race includes discrimination because of or on the basis of a per- son’s hair texture or protective hair style commonly or historically associated with race. A “protective hairstyle” includes braids, locks, and twists.

It is important to note that this new law does not create an additional protected class. However, a clarification is made that if someone is discriminated against because of the person’s “protective hairstyle,” the person may have a case that they have been discriminated against because of their race.

Our legislative session is over. It may be a good time to review policies. Fortunately, much of the legislation adverse to the apartment industry did not pass. However, the issues relating to evictions, remedies, security deposits and discrimination should be considered whenever reviewing and updating your policies.