It’s The Law – Giving thanks (legally speaking).

GIVING THANKS!

(Legally speaking.)

It’s the Law By HOWARD BOOKSTAFF, Hoover Slovacek LLP , HAA General Counsel

THE YEAR WAS 1621. The date was November 24. The Plymouth colonists and the Wampanoag shared an autumn harvest feast. Who would have thought that their meal would be thought of centuries into the future and celebrated by millions?

But wait! It wasn’t until the author of a well-known child’s poem bugged a U.S. president, who finally heeded to many requests to officially proclaim Thanksgiving as a national holiday.

That’s right (according to the History Channel website), Sarah Josepha Hale, the author of “Mary Had a Little Lamb,” launched a campaign to establish Thanksgiving as a national holiday. For over three decades, Ms. Hale tried to get the government to declare a national holiday. It wasn’t until 1863, during the height of the Civil War, that President Lincoln finally proclaimed Thanksgiving as our national holiday.

So, it appears that the Thanksgiving holiday, as we know it today, was born out of a time of tremendous strife in our country. If the country could give thanks during that period of time in our history, it stands to reason that we should be able to find a way to give thanks during present times, even though we are coming out of a pandemic.

Since this is the time to think about what we are thankful for, from a legal standpoint, what thanks can we give? Well, believe it or not, there are many things from a legal standpoint in the apartment industry that we can appreciate. Here’s my Top 10 list:

1. Our new Zoom culture

If you asked me in 2019 what “Zoom” was, I would probably try to think of some DC Comics superhero. No longer. Technology (not only Zoom, but also Teams, Google and others) has allowed us to have many webinars, meetings and events without leaving the confines of our home or office. Although one could argue we have lost the benefit of some personal connections, it certainly is a time saver and convenient to be able to click a button and get all the information you need. It’s also cool to be wearing shorts during business meetings!

2. Remote court proceedings

The Supreme Court of Texas has issued a number of emergency orders which provide that all courts in Texas may, without a participant’s consent, allow or require anyone involved in any hearing, deposition or other proceeding of any kind – including but not limited to a party, attorney, witness, court reporter or juror – to participate remotely, such as by teleconferencing, video conferencing or other means. The court’s orders have also given guidance to judges with respect to how to accept evidence and conduct proceedings remotely.

Remote proceedings have the advantage of allowing parties to avoid traffic and be able to attend court from their office or home. It also could have the effect of minimizing court time and attorneys’ fees. Although these orders will expire at some point, the idea of remote proceedings may very well be part of our “new normal.”

3. Speedy eviction trials

Believe it or not, Texas Law has a rule of civil procedure which requires that eviction trials must be held not less than 10 days nor more than 21 days after the petition is filed. While the rules also provide that a resident must be served at least six days before trial is held, the rules recognize that the eviction process should be a speedy one. Although the process has been somewhat elongated over the last couple of years, many courts have been able to get back to a speedy eviction process.

4. The TAA lease

The Texas Apartment Association lease offers a lot. The lease contains numerous provisions needed to hold a resident accountable for bad behavior. The new TAA lease form, section 11, has a number of provisions that would allow you to declare a default of the lease if residents act in a manner that is loud, obnoxious or dangerous, disturbing or threatening or disruptive.

Aside from the conduct provisions, the lease will answer most questions either you or the residents have regarding your respective rights and responsibilities. If you have not already done so, you should become familiar with the provisions of the lease which should allow you to minimize problems down the road.

5. Rental assistance

Many owners and residents have taken advantage of the robust rental assistance programs that were offered by the state and local jurisdictions. Although court involvement in the rental assistance programs has not been ideal (that’s where the 60-day abatement procedure comes from), the programs have allowed owners to get paid much needed delinquencies and kept residents housed during the COVID-heavy months.

6. Legal Aid

What? Why would I be thankful for legal aid? Well, look at it this way. Although legal aid tends to focus on issues independent of the actual delinquency, when a resident is represented by counsel, you need to make sure that you have dotted your “i’s” and crossed your “t’s.” This requires us to be better prepared for what might come our way in court. This gives you incentive to be better, smarter and more diligent with respect to such things as delivery of notices, preparing your petition and bringing evidence before the judge.

7. The notice to vacate period

The CARES Act has taught us that 30 days is a really long time to wait before an eviction is filed. We should be thankful for section 24.005(a) of the Texas Property Code which provides that the landlord must give a resident who defaults or holds over at least 3days’ notice to vacate before the owner can file an eviction. Although the CARES Act does not have an expiration date and still must be followed for those properties that are subject to the CARES Act, if you are not subject to the CARES Act, you can be thankful for Texas Law that requires a 3-day notice to vacate.

8. Texas source of income legislation

In 2015, the Texas Legislature adopted section 250.007 of the Local Government Code. Section 250.007(a) provides that a municipality or county may not adopt or enforce an ordinance or regulation that prohibits an owner from refusing to rent to a person because the person’s lawful source of income includes funding from a federal housing assistance program. In other words, owners cannot be required to participate in the federal Section 8 program.

The Section 8 program has allowed operators to provide much needed affordable housing to a substantial number of residents. However, there are complicated regulations which must be followed by program participants. Operating housing that participates in the Section 8 program is vastly different than operating a conventional property. Conventional operators are not equipped or trained to navigate the Section 8 regulations. While jurisdictions can adopt rules requiring an owner to participate in certain veteran assistance programs (such as the VASH program), no city or county in Texas is able to legally require that owners and operators participate in a Section 8 program.

9. The Justices of the Peace in Harris and surrounding counties

Every judge has had to deal with a variety of new COVID-related regulations over the past few years, which has led to different interpretations, court room operations and judicial policies. Nonetheless, we remain fortunate to have some of the finest judges in the state serving our area. For the most part, the JPs in Brazoria, Fort Bend, Harris and Montgomery counties are well qualified, well-educated and well prepared to handle the issues that come before them.

10. HAA training programs

If you are a member of HAA, you are a member of the largest local apartment association in the country and one that has some of the finest training programs available. I like to brag that we have the best educated members in the state. No matter what you want to learn, HAA probably has a program that fits your needs.

We can all be thankful for something. You may want to use this time of year to think about what you are thankful for, whether legally relevant or not! Happy Thanksgiving!