Law pg 11,12,69.qxp_Layout 1 5/18/22 8:13 AM Page 1
It’s the Law
By HOWARD BOOKSTAFF, Hoover Slovacek LLP , HAA General Counsel
SO YOU WANT TO EXERCISE SELF-HELP REMEDIES? Be careful!
SINCE MARCH 22, the apartment industry has seen unprecedented restrictions on an owner’s ability to enforce a resident’s obligation to pay rent and recover possession of an apartment. Eviction moratoria, restrictions, complications and delays have resulted in substantial delinquencies and prevented owners from being able to efficiently recover possession of an apartment from a defaulting resident. This environment has caused owners to think about alternatives to the eviction process to collect rent, recover possession and mitigate damages. The self-help remedies (those remedies that do not require judicial permission) most often asked about our lockouts and liens. Self-help remedies such as lockouts and liens are fraught with danger and may not get you what you want. If you attempt to exercise these remedies, but do not do them correctly by following a multitude of requirements, you run the risk of fairly substantial penalties. Even if you perform these remedies correctly, you run the risk of being sued. Knowing the purpose, requirements and pitfalls of these remedies will help you determine whether you want to take the risk associated with exercising these remedies.
Requirements: • An owner may not intentionally prevent a resident from entering the apartment except by judicial process, unless the decision results from: m bona fide repairs, construction or an emergency; m emoving the contents of an apartment abandoned by a resident; m changing the door locks to the apartment of a resident who is delinquent in paying at least part of the rent.
Lockouts (Governed by Section 92.0081 of the Texas Property Code)
• An owner may not intentionally prevent a resident from entering an apartment unless: m the owner’s right to change the locks because of a resident’s failure to timely pay rent is placed in the lease; m the resident is delinquent in paying all or part of the rent; m the owner has locally mailed, not later than the fifth calendar day before the date on which the door locks are changed, or handdelivered to the resident or posted on the inside of the main entry door of the apartment not later than the third calendar day before
Purpose: • To cause confrontation with the resident who has been unresponsive and unavailable. • This remedy is not designed to collect rent since a key is required to be provided whether or not rent is paid. • Note: Pursuant to Section 2306.6738 of the Texas Government Code, the lockout remedy is not available to an owner of a property supported with a housing tax credit allocation. www.haaonline.org
• If an owner changes the door lock of a resident who is delinquent in paying rent, the owner must give the resident a notice stating: m an on-site location where the resident may go 24 hours a day to obtain the new key or a telephone number that is answered 24 hours a day that the resident may call to have the key delivered within two hours after calling the number; m the fact the owner must provide the new key to the resident at any hour, regardless of whether or not the resident pays any of the delinquent rent; and m the amount of rent and other charges for which the resident is delinquent.
the date on which the door locks are changed, a written notice stating: • the earliest date the owner proposes to change the door locks; • the amount of rent the resident must pay to prevent changing of the locks; • the name and street address of the individual to whom, or the location of the onsite management office at which, the delinquent rent may be discussed or paid during the owner’s normal business hours; and • in underlined or bold print, the resident’s right to receive a key to the new lock at any hour, regardless of whether the resident pays the delinquent rent. • An owner may not change the door locks on a day, or on a day immediately before a day, on which the owner is not available or on which any on-site management office is not open, for the resident to tender the delinquent rent. • An owner who changes the locks or otherwise prevents a resident from entering the apartment may not change the locks or otherwise prevent a resident from entering a common area in the community. • An owner who intentionally prevents a resident from entering the apartment must provide the resident with a key to the changed lock without regard to whether the resident pays the delinquent rent; and • If an owner arrives at an apartment in a timely manner in response to a resident’s telephone call and the resident is not present to receive the key, the owner is required to leave a notice on the front door of the apartment stating the time the owner arrived with the key and the street address to which the resident may go June 2022
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