In this forcible-detainer action, a commercial landlord sought to oust a long-term tenant by refusing to accept the tenant’s option to renew based on the tenant’s failure to timely pay rent. Although the tenant frequently defaulted on the lease’s rental-payment terms, the landlord regularly accepted the tenant’s rental payments when tendered and without protest. The lease between the parties contained a non-waiver clause, stating that the landlord’s “acceptance of late installment of Rent shall not be a waiver and shall not estop Landlord from enforcing that provision or any other provision of [the] lease in the future”; “all waivers” must be “in writing and signed by the waiving party”; and any forbearance of enforcement shall not be construed to constitute a waiver. The tenant argued, nevertheless, that by its own conduct, the Landlord intentionally waived this provision.
The Texas Supreme Court, in a 5-4 decision, recently held enforceable a provision in a Texas Apartment Association approved lease that requires a tenant to reimburse a landlord for damage or cost of repairs that were not due to any negligence of the tenant. Philadelphia Indem. Ins. Co. v. White, No. 14-0086, 2016 WL 2848487 (Tex. May 13, 2016).
This case arose out of a fire that started in the tenant’s dryer and caused damage to several units in the apartment complex. The jury found the damage was not caused by the negligence of the tenant, but did find that she breached Section 12 of the Contract and thus would be responsible for the cost of repairs.
The provision in the lease stated in pertinent part:
In Texas, the difference between challenges to title and challenges to possession is not always clear. However, keep in mind that only possession can be determined in an eviction lawsuit. Tex. R. Civ. P. 746. A justice court has exclusive jurisdiction to determine the rights to immediate possession. Tex. Govt Code Ann 27.031(a)(2).
This recent case highlights the importance of making sure all exhibits are actually admitted into evidence during the trial. Here, the record on appeal did not contain the substitute trustee’s deed evidencing the landlord’s ownership of the property in an eviction proceeding. However, because both parties referred to the document during the course of the trial, the court held “for all practical purposes,” it was admitted into evidence. See Martin v. Federal Nat. Mortg. Ass’n 2014 WL 3057389, 4 (Tex.App.-Dallas) (Tex.App.-Dallas,2014).
Landlords and property managers take note of this recent case which holds that a landlord’s “Notice of Proposed Termination of Occupancy” given to a HUD tenant does not meet the statutory requirement of a Notice to Vacate under Tex. Property Code Section 24.005. Briones v. Brazos Bend Villa Apartments, 14-12-01125-CV, 2014 WL 2945979 (Tex. App. July 1, 2014).
If you want to learn more about the basics of evictions and the challenges in managing rental properties, I will be hosting two seminars for property managers, landlords, and real estate professionals on these topics.
Houston, Texas – August 18, 2014 “Eviction Basics” 3 hours MCE credit available.
Austin, Texas – August, 27, 2014 “Stuff Happens – How to handle unexpected challenges in managing rental properties.” (non-MCE)
Please contact me for more information if you are interested in attending either of these seminars.
Make repairs to keep property safe and free of safety hazards
The law in Texas provides that in general, a landlord does not have a duty to tenants or their guests for dangerous conditions on the leased premises. This rule stems from the theory that the landlord relinquished possession of the premises to the tenant. However, THERE ARE EXCEPTIONS to this rule. First, a landlord may be liable for injuries caused by a defect on any portion of the premises that remains under the landlord’s control, such as common areas or public stairs. Second, if the landlord is aware of concealed defects within the leased premises and fails to warn the tenant or make them safe, the landlord may be liable for injuries caused by the concealed defects. Finally, if the landlord agrees to make repairs, the landlord then owes a duty to exercise ordinary care in making those repairs.
The Austin Court of Appeals has recently upheld two evictions where the tenant claimed wrongful foreclosure. In Resendez v. FV REO I, LLC, 2014 WL 411720 (Jan. 31, 2014), and Wilder v. Citicorp Trust Bank, 2014 WL 1207979 (March 18, 2014), the Plaintiffs purchased their respective properties at a foreclosure sale. The Defendants filed wrongful foreclosures and claimed the court could not adjudicate the eviction because of the title dispute. In both cases, the deed of trust contained a provision creating a landlord tenant relationship with the defendants. In both cases, the court confirmed that attacks on the validity of the foreclosure sale are not a bar to the court’s authority to adjudicate the Plaintiff’s right to immediate possession.