Tenant Abandonment of Rental Property

Texas Laws on Tenant Rights and Landlord Rights for Abandonment
(When to consider abandoment…more information)

In some circumstances the landlord may remove the tenant’s property.

Lien for unpaid rent enforceable if in lease.

When a tenant fails to pay rent, the landlord has a lien (a right to possess) all of the tenant’s “non-exempt” property that is found in the tenant’s apartment or house. According to the statute authorizing this action, the property the landlord can take must be found inside the residence or storage room. If it is outside in the yard, for example, it cannot be taken.

The landlord’s lien gives the landlord the right to peacefully take the tenant’s property, and to sell it after a proper time period and notice to satisfy the rent outstanding. The landlord’s lien can be enforced by the landlord without taking any formal action in court ONLY if it is spelled out specifically in the lease, and the lease provision is underlined or printed in conspicuous bold print. The landlord cannot sell or dispose of the property unless this also is written in the lease.

(However, the landlord is allowed to remove all the contents of an apartment or house, without a specific lease provision, when the tenant has abandoned the premises.)

There is no specific limit on the amount of non-exempt property the landlord can take. Generally, if the landlord takes property (valued at market prices) worth more than three times the rent owed, the tenant may have a wrongful seizure suit. The landlord cannot lien property for any other charge. In other words, the landlord cannot deduct late fees or something else from a rent payment and still claim the tenant is behind on rent, and then attempt to lien property. (While the landlord may claim their lease says the can assign money they receive to any account they wish, the Texas Property Code would consider such a provision void.)

Exempt property

The following types of property are exempt and cannot be taken by the landlord under any circumstance, unless the property was abandoned:
1. Clothing.
2. Tools, equipment, and books of the tenant’s trade.
3. School books.
4. One automobile and one truck.
5. Family portraits and pictures, and the family library.
6. One couch, two living room chairs, one dining table and chairs.
7. All beds and bedding.
8. All kitchen furniture and utensils, including a tenant’s deep freeze and microwave.
9. Food and food stuffs.
10. Medicine and medical supplies.
11. Anything the landlord knows belongs to someone else not living in the leased premises.
12. Anything the landlord knows was purchased on a recorded credit arrangement that has not yet been paid for.
13. All agricultural implements.
14. Children’s toys not used by adults.

Essentially, the landlord can never take property that you do not own, or property you need to live, learn, work, or property that is very valuable to your family but not valuable to anyone else (like toys, pictures).

The Texas Apartment Association (TAA) has a lot of commentary in their Redbook (which is not the law) on landlord liens. Surprisingly, TAA says that the clothing exemption includes rings and jewelry. TAA also correctly states that the following are probably ok to take: televisions, stereo equipment, computers, cameras. Of course, if these are not owned by the tenant or are used in the tenant’s business then even these items are exempt. These are also the standard items landlords take because they are easy to take, valuable and easy to sell.

Entering the Property

If the landlord wants to take tenant property because the tenant has not paid the rent, the landlord must follow the letter of the law. The lease provision better allow the landlord to do this, and the provison better be in underlined or bold print. The tenant had better be behind on rent (and not some other fee). The property taken had better not be exempt. If the landlord makes a mistake, make them pay.

The landlord is entitled to enter the tenant’s place to take property only if it can be done “without a breach of the peace.” In other words, a tenant might resist a landlord trying to enter. A landlord is not entitled to use any force or cause a disturbance even if the tenant is a contributing cause of the disturbance. Thus, many landlords opt to enter the property when the tenant is not at home.

In addition the landlord must leave a notice that it went inside the tenant’s place and specifically list every item it took. The notice must be left within a conspicuous place inside the tenant’s place. The notice must also state the amount of the delinquent rent and the name, address and telephone number of the person the tenant can contact. The notice must also state that the property will be returned upon paying the delinquent rent.

Is it improper seizure or Landlord rights?

Warning If the landlord willfully violates the law on liens, the tenant may recover the greater of one month’s rent or $500, return of any property not sold and proceeds from the sale, plus actual damages, plus reasonable attorney’s fees, less any past due rent. We have provided a lawsuit petition and advice on how to sue the landlord.

Landlord Rights: In some circumstances a landlord may consider a dwelling abandoned. If a tenant has abandoned the premises, the landlord is entitled to enter the premises, change the locks and remove all personal belongings left behind.

Whether a dwelling has been abandoned is a difficult issue to resolve because there is no clear definition. This principle is based upon the tenant’s intent — not on landlord’s desires. If a tenant has clearly expressed an intent to return to the premises then clearly the tenant has not abandoned the premises. If a tenant has paid the rent for the month, then a landlord cannot consider the premises to be abandoned even if the tenant never occupies the dwelling at all. While this may be a correct interpretation, a tenant would be wise to make contact with the landlord (preferably in writing) to explain the situation so as to avoid any difficulties. If a tenant is behind on rent, and the tenant has not occupied the premises for five days consecutively and most of the personal belongings of the tenant have been removed, many leases state that the landlord can consider the premises to be abandoned. (What does your lease say?) Again, this may or may not be correct, however, a tenant would be wise to make contact with a landlord to remove any doubt about whether a tenant has left the premises. This situation often arises when a tenant is in the process of moving. Notice the 5 day rule. However, if the tenant owes rent, the property could be subject to a landlord’s lien, this situation may result in the landlord seizing the property until the rent is paid.

If the tenant did not intend to abandon the premises and the landlord took control and disposed of the tenants property, the tenant can send the landlord a demand letter and sue for the return of the property or its value.

Sale of property

If it is in the lease agreement, the landlord can also sell the property. (If not, the landlord can only store the property.) The landlord must give the tenant at least 30 days’ advance notice of the sale by certified and regular mail to the tenant’s last known mailing address, indicate the time, date, and place of the sale, and provide an itemized account of the rent owed and the name of the person to contact for information. The tenant is allowed to redeem the property prior to the sale if the tenant pays the rent owed, and the reasonable packing, moving and storage charges (if these charges are also specified in the lease). Once the landlord sends a notice of sale they can get these other charges too (so redeem earlier to avoid these charges if you can).

At the sale, the property is sold to the highest cash bidder. It is usually a good idea to go to the sale to make sure it is done properly (sometimes landlords sell things to their friends for a few cents). The tenant is allowed to go to the sale and purchase his own property. The landlord must take the money he receives from the sale of the tenant’s property and apply it to the rental account. The tenant is entitled to any remainder. The landlord must give the tenant an accounting within 30 days of the tenant’s request.

The Tenant Getting Back Their Property

Paying the landlord the owed rent should get the property back. (If the property was improperly taken the tenant should send the landlord a demand letter requesting it return the property or be sued.) A landlord is not entitled to keep the tenant’s property for charges other than rent. To get back any property the tenant only needs offer the rent — until there has been a notice of sale, the landlord is not entitled to charge for packing, moving, and storage expenses

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