Your Rights When You Haven’t Paid Your Rent

REVISED September 1, 2007)
by Richard McElvaney
Associate Clinical Professor
The People's Lawyer  

YOUR RIGHTS WHEN YOU HAVEN’T PAID YOUR RENT

Texas law gives you, the tenant, certain rights, even when you are late with your rent payment.  This article answers many common tenant questions involving non-payment of rent.  The information is not meant to be an exhaustive list of your rights and remedies.  Rather it is a general overview and should not be relied on as your sole source of legal advice.  Your rights are spelled out in greater detail in the Texas Property Code.  If you are confronted with a legal problem, you should consult an attorney.

I.   I didn’t pay my rent on time. Can my landlord change my door lock?
Presently - yes.  (For leases entered into after January 1, 2008, however, it depends on your lease agreement.)  But even if your landlord has the right to change your door lock, you will be able to get back in.  Texas law allows your landlord to change the door lock if you are delinquent with rent.  (After January 1, 2008 - your landlord has the right to change the door lock to your individual unit for non-payment of rent only if your lease has a provision allowing him to do so.)  But before changing the lock, your landlord must give you notice of his intention. This notice must inform you of:

1. the earliest date the door lock will be changed,
2. the amount of rent you must pay to avoid the lock change,
3. the name and address where you may discuss or pay the rent during normal business hours, and (after January 1, 2008)
4. your right to receive a new key regardless of whether you pay the delinquent rent (this provision must be underlined or in bold print).

Your landlord must either send you this notice five days before changing your door lock or post it on the inside of your main entry door at least three days before the lock change.
Additionally, when your landlord changes your lock, he must give you written notice, posted on the door, about where you may get a key 24 hours a day or the notice must give you a phone number to call to have a key delivered to you within 2 hours.  This notice must also inform you of the amount of rent due and state that the new key will be given to you whether or not you pay the overdue rent.

The timing of the lock change is also important.  Your landlord may not change your door lock while you are inside the dwelling, may not change your lock on a day (or on the day before) a representative is not available or the apartment office is not open, and may not change your door lock more than once each rent payment period.
If your landlord doesn't meet all of the above requirements, he may be liable to you.  You may recover possession of the premises or terminate your lease.  You may also recover actual money damages, a statutory penalty of one month's rent plus $500 (increases to $1,000 for leases entered into after January 1, 2008), court costs, and attorney fees.  But your overdue rent and any other money you owe the landlord will be deducted from the amount you recover.
If your landlord refuses to give you a new key unless you pay the delinquent rent, he is also liable for an additional statutory penalty of one month's rent.
A landlord may not remove doors, windows, locking devices, or landlord supplied appliances or furniture for non-payment of rent.

II.   My landlord has changed my door lock.  What should I do now?
The first thing you should do is to contact your landlord and request a new key.  Under Texas law, he is required to give you the key.  If he refuses, you may regain possession of the premises by obtaining a writ of reentry from the justice court.

To obtain a writ of reentry, you must file a sworn complaint stating the facts of the unlawful lockout (i.e.: that the landlord gave you no notice or improper notice of the lockout or that he failed to give you a new key).  The proper place to file the sworn complaint is with the justice court in the precinct where the property is located.  In addition to the written complaint, you will have to tell the justice of the peace the facts involved in your lockout.

If you follow this procedure, and the justice of the peace reasonably believes that you were unlawfully locked out, he may issue a writ of reentry.  The writ entitles you to immediate possession of the premises, pending a final hearing on the matter.  The initial hearing may be conducted even without the landlord present.

Once you have a writ of reentry, you should have the constable or sheriff serve it on your landlord.  If the landlord fails to comply with the writ of reentry immediately or later disobeys it, the court may hold him in contempt of court.

However, your landlord may request a hearing on your sworn complaint for reentry at any time before the eighth day after being served with the writ of reentry.  If he requests a hearing, it will be held in the justice court between the first and seventh day after his request.  If he does not request a hearing, a judgment for court costs may be rendered against your landlord.
If a hearing is held and a judgment is rendered, either you or your landlord may appeal.   The procedure for appeal is the same as that in an eviction suit, described below.

You should be aware that filing a sworn complaint for reentry doesn't affect your right to pursue a separate cause of action for being unlawfully locked out.  It also does not affect your landlord's right to pursue an eviction action against you.  Therefore, if you desire to stay, you should consider negotiating with your landlord to pay your rent in return for him allowing you to stay.  Make sure to get any agreement you enter into in writing.

Your sworn complaint for reentry must be filed in good faith.  Otherwise you may be held liable for actual damages, a statutory penalty of one month's rent or $500 (whichever is greater), court costs, and attorney fees, less any money owed you by your landlord.

III.   Can my landlord disconnect my utilities if I don’t pay my rent?
A landlord may shut off any utility (electricity, water, wastewater, and gas) to carry out repairs or construction or in an emergency. A landlord may never shut off electricity, water, wastewater, or gas because the tenant is delinquent with a rent or utility payment. Any provision of a lease that purports to waive any of the tenant’s rights, liabilities, or duties under the utility shut-off law is void. If a landlord or a landlord’s agent violates any of the rules for shutting off electrical service, the tenant may:

• Either recover possession of the premises or terminate the lease; and
• Recover from the landlord actual damages; the greater of one month’s rent or $500; reasonable attorney’s fees; and court costs, less any delinquent rent or other sums for which the tenant is liable to the landlord.

IV.    Can my landlord take my property if I don’t pay my rent?
If you don't pay your rent, your landlord may take some of your property, but only under certain conditions.  Texas law does not directly authorize your landlord to enter your home and take your property.  But if you have a clause in your lease permitting your landlord to enforce a lien on your non-exempt property and if that clause is underlined or in conspicuous bold print, the landlord is then allowed to enforce the lien.

If your landlord meets the above requirements, he may take any of your non-exempt property when you don't pay rent.  Non-exempt property in this situation is any property other than your clothing, tools of a trade or profession, schoolbooks, family library, family pictures, one couch, two living room chairs, a dining table and chairs, beds and bedding, kitchen furniture and utensils, one automobile, agricultural tools, children's toys, and goods that your landlord knows are not owned by you.  A landlord can legally take things like stereos, televisions and videocassette recorders.  Of course, your landlord may not breach the peace to take your property.

When your landlord takes your property, he must leave a conspicuous notice of entry and an itemized list of the items he took.  In this notice, he must state the amount of rent you owe and list the name, address and telephone number of the person to whom you may pay your rent to redeem your property.  The landlord is not allowed to add packing, storage, or moving fees unless your lease authorizes these additional charges.

Your landlord may not sell or dispose of your property unless he is authorized to do so by your lease.  In that case, he must give you at least 30 days written notice before selling your things.  The written notice must include:

1. the date, time and place of sale;
2. an itemized account of the amount you owe; and
3. the name, address, and telephone number of the person you should contact regarding the sale and regarding payment to redeem your property.

You have the right, anytime before the sale, to redeem your things by paying the money you owe the landlord.

If your property is sold, it must be sold to the highest cash bidder.   From the proceeds, your landlord is entitled to keep the amount you owe him, but he must refund you any surplus at your last known address within 30 days after the sale.

If your landlord fails to meet these requirements, he may be liable to you.  You may be entitled to recover actual money damages, the return of your unsold property, the proceeds from the sale of your property, a statutory penalty of one month's rent or $500 (whichever is greater), court costs, and attorney fees.  Any overdue rent or other money you owe your landlord will be deducted from the amount you recover.

If there is a clause in your lease that attempts to limit your rights, or to exempt or limit your landlord's liability, regarding his lien on your property, such a clause is void to the extent stated in the Texas Property Code.

V.    My landlord is evicting me.  What should I expect?
An eviction suit (also called a "forcible detainer") is the process by which a landlord tries to regain possession of the premises.  It begins with a notice to vacate.  A notice to vacate is the landlord's written request that you move.  However, it may also be a request that you either pay the overdue rent within a specified time or move out.  If you receive this pay or move type notice and desire to stay, you should tender your rent to the landlord within the time specified in the notice.  Remember that the initial notice to vacate is only the landlord's request that you move.  Your landlord may not lawfully resort to self-help measures such as putting your property out on the street if you don’t move within the time specified in this notice to vacate.
If you don't leave by the date stated in the notice to vacate, your landlord will have to take the second step: filing an eviction suit in justice court.  The eviction suit may add a claim for delinquent rent as long as the amount owed is less than $10,000.  However, if you have any other causes of action against your landlord, you must file them in a separate lawsuit.  Eviction suits must be filed in justice court in the precinct where the property is located.  In Harris County, for example, there are 8 precincts.  Each precinct has 2 justice courts. The landlord will have the option of filing in either of the justice courts in the precinct.

In the third step, a constable or other process server will serve you with a citation and a copy of the eviction suit.  The citation will inform you when and where you must appear to contest the eviction.  The court date must be between 6 and 10 days after the date on which you were served.  It is usually set one week from the day you receive the citation to appear.  You may have a jury trial by requesting a jury and paying $5.00 within 5 days of when you were served with the citation.  Read the citation carefully to determine when and where you must appear in court.

The fourth step of an eviction suit is a trial to determine the right to possession of the premises.  If you don't appear at trial, the court will grant a default judgment against you.  If your landlord doesn't show up, the case will usually be dismissed.  If the eviction suit is because you didn't pay rent or because you held over after your lease expired, your landlord may be represented at trial by an authorized agent, such as an apartment manager.  However, if the case involves other claims against you, your landlord must represent himself or hire an attorney, unless you default by not appearing at court.

If you are representing yourself at trial, make sure the landlord has followed the above process.  You should also take all witnesses, documents and other evidence with you to court on the trial date.  At the eviction trial, you are allowed to use a claim of retaliation as a defense.  However, an eviction for actual non-payment of rent is not retaliation.  Some other defenses available to you in non-payment of rent evictions include: no notice or improper notice to vacate; payment of all rents owed; and the fact that rent was offered but refused.

VI.    What if I lose in the Justice Court?
If you lose an eviction suit at justice court, you have two options: move out or appeal.  You may appeal by filing an appeal bond or by filing a pauper’s affidavit if you cannot afford to post a bond.  The bond or pauper’s affidavit must be filed within 5 days after the date of the judgment.  Do not count the day of the judgment as the first day, but do count weekends and holidays.  However, if the fifth day falls on a Saturday, Sunday, or legal holiday, you will have until the next day the court is open to file your appeal.  Additionally, if your case involves non-payment of rent and you file a pauper’s affidavit instead of a bond, you must deposit one month’s rent into the justice court within 5 days of filing the affidavit to stay in possession of the premises while the appeal is pending.

Your landlord or the court has 5 days in which to contest your pauper’s affidavit.  If they don’t contest your affidavit, your case will be transferred to the county court for a new trial.  If they do contest your affidavit, a hearing will be held to decide if you may appeal without posting a bond.  At the hearing, you have the burden of proving your inability to post bond.  Therefore, you should take to the hearing all documents which show that you receive food stamps, housing assistance, or any other government assistance payment.  If the justice of the peace approves your affidavit, your case will be transferred to the county court for a new trial.  If he denies the affidavit, you have 5 days to bring the affidavit issue to the county court judge for final determination.  If the county court judge also denies your affidavit, you will have 5 days to post a bond.  If the county court approves your affidavit, your case will be transferred to the county court for a new trial.

You are allowed to remain in the premises during this process and during the new trial at county court.  However, if the eviction was for not paying the rent and you appealed by filing an affidavit, you must pay your rent directly to the County Court each month as it becomes due to remain in possession while appealing the case.

VII.    What if I don’t appeal my case within 5 days?
You should move!  At this point the eviction case is over, and you have lost your right to the premises.  Your main focus now should be on saving your personal property.  It is one thing to lose your right to stay in the rented premise.  It is another thing to lose all of your personal property!  

VIII.   What will happen if I don’t move?
You could lose your personal property.  If you neither move out nor appeal your case, your landlord can get a writ entitling him to possession of the premises.  This is called a writ of possession.  A constable must leave a notice on your door stating that the writ of possession has been issued and that it will be executed at any time after 24 hours.  If you don’t move out within that time, the constable may return with a warehouseman to remove all your property to a warehouse.

If you arrive while the constable and warehouseman are removing your things, you have the right to demand to remove the property yourself.  You will have to remove your things immediately, and may not store them anywhere on the landlord’s property.  You should make your demand to both the constable and the warehouseman.  If possible, have a witness with you when you make the demand.

Once your property is stored at the warehouse, the warehouseman has a lien for reasonable moving and storage charges.  You will have to pay all of those charges to get any of your property back.  There is one exception: You have 30 days in which to pay moving and storage charges specifically attributed to certain individual necessity items.  While the warehouseman may sell your property at any time after 30 days, you have the right to redeem your property at any time before it is sold by paying all of the moving and storage charges.

If the warehouseman is asking an unreasonable amount for moving and storage, you have the right to file suit on that issue in justice court.  If the justice of the peace finds the charges unreasonable, the warehouseman will have to return your property free of charge.

IX.   Is it too late to pay the overdue rent?
If you want to remain a tenant but you have fallen behind with your rent payments, you should contact the landlord and try to negotiate with him.  Often your landlord will provide you additional time to come up with the rent.  If you now have the money and want to stay, you should offer the rent to the landlord.  Many times your landlord will accept the late payment and allow you to stay.  Of course, he doesn’t have to. Remember to get any agreement you make in writing.  

X.   Conclusion
You now have a basic understanding of what your landlord may lawfully do to you when you fall behind with your rent payments.  Of course, there are many things a landlord might do unlawfully.  You do have rights even when you are late with your rent.  Hopefully, knowing these rights will relieve some of the stress you feel when you are unable to pay your rent.