Tuesday, February 25, 2014

Facts about Texas Landlord and Tenant Law in Residential Leases

If you are a tenant leasing residential property in Texas, or you are a landlord of residential property, you should know your rights and duties under the law.   Here is a (partial) list of what the Texas law has to say about the residential landlord/tenant relationship and some resources on where to find more information.

  1. Some leases may not be in writing: If the lease term is for one year or less, it is not required by Texas law to be in writing (however, be aware that an oral lease may lead to a swearing match of "he said, she said" in court if things go wrong. 
  2. Lease clauses are independent of each other: A tenant is not excused from paying rent if the landlord breaches the agreement. 
  3. Certain Duties of the Landlord cannot be waived by agreement: Certain things are so important under Texas law that even an agreement between landlord and tenant cannot change the requirements. For example:  a) a landlord's duty to account for the security deposit at lease termination b) installing of security devices c) disclosing ownership & management of the property d) certain restrictions limiting the right of a landlord to interrupt utility service e) certain repairs, especially relating to health and safety issues, and f) non-discrimination provisions in state and federal law
  4. Habitability of the Premises: A landlord must make a diligent effort to repair conditions that materially affect the health & safety of the tenant (including issues that arise due to landlord's failure to provide hot water)  if the tenant gives notice of the condition to the landlord.  The tenant may be required to give notice in writing (depending on what is stated in a written lease). The tenant must give two notices unless the first notice was sent by certified mail, return receipt requested or registered mail.  The landlord has a reasonable amount of time to repair but a "reasonable amount of time" is usually assumed to be 7 days. Under Texas law (Property Code Section 92.0561) the tenant can have a specific procedure to repair and deduct from rent but if this is not done properly the tenant could end up being evicted, so careful!! (this is NOT the same as deciding not to pay rent).
  5. Retaliation eviction is illegal: It is illegal for a landlord to file an eviction suit to retaliate against a tenant for asking for repairs. 
  6. Security devices are required: A landlord is required to install specific types of locks on doors and windows, and they must be at specific heights. The landlord must also re-key locks within 7 days of each tenant turnover date. 
  7. Smoke alarms:  A landlord must install a smoke alarm in rental units at the time of renting and must also accommodate a hearing impaired person by installing smoke alarms in bedrooms that would alert a hearing impaired person. 
  8. Locking out the Tenant: A landlord may be able change the lock on a tenant's door if the tenant is delinquent with some or all of the rent. (for leases entered into after January 1, 2008 that right to do so must be contained in the lease.)  The landlord must give the tenant notice of the proposed lockout 5 days before (if mailed) OR 3 days before (if notice is placed on the inside of the tenant's main door). 
  9. Eviction: A landlord cannot forcibly evict a tenant without following a specific legal process and getting a court order.  Eviction suits are filed in Justice of the Peace Courts and there are specific notice requirements and other procedures that must be followed.

Why is it so important to know your rights as a landlord or tenant?  Because misinformation and misunderstanding lead to a lot of legal problems and cost money!  A well-meaning landlord who fails to keep up with his/her duties under the law can end up with a bad situation, lost rents, court costs and/or other fines. A tenant who does not stand up for his/her legal rights could be living in a miserable situation, not knowing that it can be challenged.  On the other hand, a landlord or tenant that is too confident of the rightness of his/her position can ignore problems and make costly and even dangerous errors. 

A very valuable resource for more detailed information is Texastenant.org  

The above information relates to residential leases. Laws and procedures that relate to commercial leases are different. 

Thank you to Clinical Associate Professor Rick McElvaney of University of Houston Law Center for information about Texas Residential Landlord/Tenant law upon which this blog is based. 

Celebrating 30 years in 2014!
Family Law, Business Law, Wills/trusts/probate 

Monday, February 17, 2014

How to Choose a Lawyer

In choosing a lawyer, as in many other aspects of life, it’s all about balance. The lawyer you choose may be working closely with you for a long time on issues that affect your emotional and financial life. 

You want a lawyer that has a good personality, and one that you enjoy working with or talking to, but one who can represent you aggressively when the situation calls for it.  (You want “Nice” but not “Weak”.)

You want someone who is not afraid to stand up for you, and insist on your rights. But you don’t want someone that will argue just for the sake of argument, thereby increasing your legal fees.  (“Strong”, not “Belligerent”.)

You want an attorney and staff who are open to your ideas, but able to stand up to you and give you an honest opinion and clear direction when you need or want it. (“Open minded”, not “Easily Bullied”.)  

You want someone who will be responsive to you and will keep you up-to-date. But you don’t want someone who will put everything aside every time anyone wants to talk about anything.  (“Responsive”, not “Easily Distracted”.)

And, while you want someone who you can afford, price should not be the only criteria.  Look for a reasonable price that falls within the range of what is charged in your geographical area for your type of case, by attorneys with the particular level of experience.  An attorney who refuses to cut the price or service when it will negatively affect your case is actually doing you a favor.  Some cases may be "flat fee" cases and in some cases you should expect to pay a retainer up front which may or may not cover the entire fees in your case (depending on what happens which no one can predict).  How this is determined will depend upon the type of case (family law, business, probate, etc.), the complexity of the case, and the time limits imposed by the case (is it urgent, an emergency?), amount of work required by the attorney (research required, novelty of the case). 

This is why the initial consultation is so important. It allows the attorney and potential client to meet each other, exchange information, discuss the facts and options, and decide whether or not to proceed in working together. 

When you have a consultation appointment, it is a good idea to organize your paperwork, thoughts, and questions in advance. This will help you make the most of your time with the lawyer. 
Celebrating 30 years in 2014!
Family Law, Business Law, Wills/trusts/probate 

Tuesday, February 11, 2014

Served with a Lawsuit or Hearing Notice? Act Now!

If you have been served with a lawsuit or hearing notice from a Texas Court you should not wait to act.   Procrastinating can cause you to lose the case and have a judgment entered against you.

Here are some reasons that people put off answering the suit, and what can happen as a result:

  1. "This suit is unjustified, unfair, or inaccurate."  Maybe so, but if you don't bother to answer it, you may lose a suit that you could have won if only you had chosen to participate. Frustrating but true. 
  2. "I have time to answer, I'll get around to it".   Are you sure? How many days does the citation say that you have?  Are  you sure you are calculating the days correctly? What about a holiday, or a weekend? What about a holiday that not everyone celebrates?   Read the citation thoroughly, it will tell you how long you have to answer, then make sure you know exactly how to calculate the answer time.   In many cases you will have until 10:00 A.M of the Monday that comes after 20 days have passed.  Justice Court gives you less time to answer than most cases in district or county court. Some probate actions may allow you only 10 days to answer. In a business case, guardianship or family law case where someone is claiming "irreparable harm" or an issue with "safety to health and welfare of children", there may be a need for an immediate, emergency hearing.  Long story short-  depending on the type of case, the type of court, the way that Sundays and holidays fall, and the urgency of the issue, you may have 3 -27 days to act.  Make sure you know. 
  3. "I'll let an attorney handle it. I have an appointment in a couple weeks."  Do not wait until the last minute to see a lawyer.   Your attorney may need to do research before preparing your answer.  You may have a counterclaim against the person suing you and your attorney may need time to get it ready. Your lawyer's office may have time to draft your answer today, but if you wait another week or two there could be other emergencies that came in ahead of  yours.   Your attorney needs time to prepare the filing and may need to have you sign an affidavit or other documents prior to filing your answer.  You may need to meet with the lawyer more than once prior to the answer being filed.  Waiting until the last minute creates an emergency situation that can cost you more in legal fees. 
  4. "We already dealt with this issue, this suit must be a mistake." Occasionally, lawsuits get filed accidentally but not often. So if you are getting sued now by a creditor that you thought you settled with, a former business partner that you thought you split with, or a former spouse that you thought you completed mediation with, you need to take notice. It could be that this suit should not have been filed, but you still need to get it dismissed. The legal issue may be "close", but not identical. It is better to get an erroneous or frivolous suit dismissed early on than it is to go back and try to undo a judgment against you. 
  5. "They didn't serve me properly".  Texas Rules of Civil procedure allow different types of service. Don't assume that it won't count just because a uniformed constable didn't come to your door and shout "you've been served!"  The subject of whether someone has been properly served or not leads to some heated courtroom debate between lawyers.   It can be a technical legal issue, so always get a lawyer's opinion on this.   BUT be aware that if you really have not been properly served, it may be best NOT to answer the lawsuit (depending on the facts of your case). Again, get legal advice a.s.a.p.
This advice relates to Texas courts.  Similar advice can be applied to Federal court, administrative court, or a complaint against you with an administrative agency.  The time periods and methods of service may vary, but the main rules are these 1) read everything thoroughly 2) understand when you are supposed to answer 3) get legal advice 4) do not wait!

Monday, February 3, 2014

Is Collaborative Law for You?

If you are thinking of getting a divorce you should be aware of all your options. In Texas, you do have the option of entering into a collaborative law agreement at the beginning of your divorce process.

Here are some facts about Texas collaborative divorce law:

  1. Each party has his or her own attorney.
  2. There may be a collaborative “team” that includes a mental health professional (perhaps one who works specifically with children), and a neutral financial professional or advisor.  Not all cases require a team approach.
  3. Instead of court hearings, there are meetings that include the parties and their attorneys (and when indicated, other members of the team).  Agreements are reached. Financial information, documents and other information that is necessary to settle the case is freely shared between the parties This means that the parties do not have to go through "formal discovery " (depositions, interrogatories and such) in order to get information. 
  4. At the beginning of the process, a collaborative law agreement is signed. That agreement provides that if judicial intervention is sought or if one or both parties decide not to proceed further, the collaborative attorneys are disqualified from continuing in the case. 
  5. Both parties must find new attorneys if the divorce becomes contested.

Just like in traditional divorce, the cost of a collaborative divorce varies, depending on the complexity of the situation and whether or not other professionals need to be involved in the team. 

Collaborative divorce emphasizes respect for each other, practicality, and lack of "posturing".  If you are considering a divorce, you may want to check out this possibility to see if it may be right for you. 

You can see more information, including videos and information from some real people who have been through the process on the website for the Collaborative Law Institute of Texas. 

Celebrating 30 years in 2014!