Landlord’s Lien

The Texas Property Code, §54.041 – §54.048, defines the procedures for a contractual landlord’s lien. This brochure explains a landlord’s lien, identifies property that can be seized, and describes the steps a landlord must follow to seize the property. It also explains what a tenant must do to recover property once it has been seized. Finally, it explains a tenant’s recourse for an unlawful seizure of property.

What Is a Landlord’s Lien?
Texas law gives a landlord a lien on a tenant’s non-exempt property for unpaid rent that is due. If a tenant is behind on rent and a written lease gives the landlord permission to exercise this lien on the tenant’s property, the landlord may enter the rental unit and take non-exempt property to secure payment of the delinquent rent. The clause giving the landlord permission must be underlined or printed in conspicuous bold print to be enforceable. The property must be in either the tenant’s residence or in a storage room for a landlord to seize the property. A storage room includes an attached garage or a shed.

The landlord of an apartment complex that receives housing tax credits is prohibited from seizing or threatening to seize a tenant’s property except by judicial process unless the tenant has abandoned the premises.

Any provision in the lease that purports to waive or diminish a right, liability, or exemption of a lien is void. In other words, a section of your lease that tries to give up or lessen a right, liability, or exemption of a lien is not valid.

If the lease gives the landlord a lien on the tenant’s property and authorizes the landlord to seize property for unpaid rent, the landlord may only seize the tenant’s property if it can be accomplished without a breach of the peace. In other words, a tenant does not have to permit a landlord to enter the tenant’s house or apartment. A landlord cannot use force in an attempt to seize the tenant’s property. A landlord can, however, return when the tenant is not at home and seize the property at that time. Of course, most landlords will enter the tenant’s unit and seize property only when the tenant is absent.

When a landlord seizes property, the landlord must leave a written notice of entry and an itemized list of all the items removed.

  1. The notice and list must be left in a conspicuous place within the dwelling.
  2. The notice must state the amount of delinquent rent and the name, address, and telephone number of the person the tenant may contact regarding the amount owed.
  3. The notice must also state that the property will be promptly returned on full payment of the delinquent rent.

Unless authorized in a written lease, the landlord is not entitled to collect a charge for packing, removing, or storing seized property.

A landlord may also seize property if the tenant has abandoned the unit. See the section on Abandonment.

What a Landlord CANNOT Seize
The following is a list of items that a landlord cannot seize, known as exempt property.

  1. Wearing apparel — includes clothes and jewelry, such as rings or watches;
  2. Tools, apparatus, and books of a trade or profession;
  3. School books;
  4. A family library;
  5. Family portraits and pictures;
  6. One couch, two living room chairs, and a dining table and chairs;
  7. Beds and bedding — includes not only the bed, but also the sheets, pillows, and blankets;
  8. Kitchen furniture and utensils — includes all the kitchen appliances, pots, pans, skillets, toasters, microwaves, food processors, and coffee makers;
  9. Food and foodstuffs;
  10. Medicine and medical supplies;
  11. One automobile and one truck — this does not cover motorcycles, bicycles, or a second vehicle;
  12. Agricultural implements;
  13. Children’s toys not commonly used by adults — includes dolls and small bicycles;
  14. Goods that the landlord or the landlord’s agent knows are owned by a person other than the tenant or an occupant of the residence; and
  15. Goods that the landlord or the landlord’s agent knows are subject to a recorded chattel mortgage or financing agreement.

The exemption list applies to all property seized under a landlord’s lien. That is, a landlord may not seize and hold exempt property for delinquent rent.

What Can a Landlord Seize?
The following is a list of property that a landlord can seize, known as non-exempt property. Remember that these items must be found inside the residence or in a storage room at the time of seizure.

There are some items — even if they are listed on the “non-exempt” list — that a landlord cannot seize. These are items used for a tenant’s profession. Some examples include books, tools, computers, musical instruments, and sporting equipment. Whether a particular item can be seized is often based on the tenant’s profession at the time of the lien. Many times, the tenant’s trade or profession is listed on the rental application.

Some examples of non-exempt property include, but are not limited to:

  1. Televisions, stereos, CD players, and VCRs;
  2. Records, audiotapes, CDs, and VCR tapes;
  3. Answering machines, telephones, sewing machines, and calculators;
  4. Books and paintings;
  5. All furniture — except for one couch, two living room chairs, dining table and chairs, kitchen furniture, and beds;
  6. Personal computers, printers, and typewriters;
  7. Musical instruments, cameras, radios, and clocks; and
  8. All sports equipment — includes tennis rackets, fishing equipment, guns, water skis, bicycles, exercise equipment, golf clubs, softball equipment, archery equipment, underwater gear, motorcycles, and boats.

Abandonment
Since the Texas Property Code does not define abandonment, it is up to either the individual lease or a judge to define it. It is important for a landlord to act carefully when declaring abandonment, especially if the lease does not define it. If nothing exists in the lease about abandonment and the landlord removes all of the tenant’s property, a court could consider it to be an illegal eviction in violation of the tenant’s rights. This, of course, would be judged on a case-by-case basis.

Abandonment is defined under the TAA lease as when:

  1. Everybody appears to have moved out in the landlord’s reasonable judgment;
  2. Clothes, furniture, and personal belongings have been substantially removed from the dwelling; and
  3. No one has been in the dwelling for five consecutive days while the rent is due and unpaid.
    or
    A dwelling is abandoned 10 days after the death of a sole resident.

The TAA lease continues: abandonment ends the tenant’s right of possession for all purposes and gives the landlord the immediate right to clean up; make repairs; relet the dwelling; determine any security deposit deductions; and remove property left in the dwelling. See also ATC’s Security Deposit Law brochure.

NOTE: This is only the definition of abandonment from the TAA lease; other leases may have different definitions. A landlord must abide by the terms of the lease signed with the tenant.

The Tenant May Recover His Property
The tenant can recover property any time before it is sold by paying all of the delinquent rent that is owed, and, if authorized in a written lease, all reasonable packing, moving, storage, and sale costs.

If the landlord seizes a tenant’s property and then files suit for unpaid rent, a tenant still has an opportunity to recover personal property that was lawfully taken. If the tenant disputes the amount that is owed to the landlord and the property has yet to be claimed or sold, the tenant can recover it any time before a judgment has been rendered. To do so, the tenant must post a bond in an amount approved by the court, payable to the landlord, with the condition that if the landlord wins the suit, the amount of the judgment and any costs assessed against the tenant will be paid from the bond and any remainder given back to the tenant.

The above information only applies to property that is lawfully seized. If the tenant’s property is improperly seized, it can be recovered without paying the landlord any money or posting a bond. See the section What if the Landlord Violates the Law?

Sale of Property
A landlord can try to sell the seized items to recover the money that is owed by the tenant. A landlord can sell the seized property only if it is authorized in a written lease. The landlord must give the tenant a notice at least 30 days before the sale. It must be sent by both first class and certified mail, return receipt requested to the tenant’s last known address. The notice must contain:

  1. The date, time, and place of the sale;
  2. An itemized account of the amount owed by the tenant to the landlord; and
  3. The name, address, and telephone number of the person the tenant may contact regarding the sale, the amount owed, and the right of the tenant to redeem the property.

If the tenant cannot or does not pay the rent that is owed, then the landlord may sell the property to the highest cash bidder.

Proceeds from the sale must first be applied to delinquent rent and, if authorized in a written lease, reasonable packing, moving, storage, and sale costs. Any money that is left over must be mailed to the tenant, to the last known address, no later than 30 days after the sale.

If the tenant wishes to see a written account of the proceeds, a written request must be sent to the landlord. This request should be sent by certified mail. The landlord then has 30 days to provide an accounting to the tenant.

What if the Landlord Violates the Law?
If the landlord willfully violates the law when seizing property pursuant to a lien, the tenant is entitled to:

  1. Actual damages;
  2. Return of any property seized that has not been sold;
  3. Return of the proceeds of any sale of seized property;
  4. One month’s rent or $500, whichever is greater, less any amount for which the tenant is liable; and
  5. Reasonable attorney’s fees.

To show that the landlord is willfully violating the law, the tenant should deliver a written demand to the landlord for the return of the property along with a statement of why it was improperly seized. If the landlord does not return the property immediately, the tenant may pursue legal remedies including an order from the justice of the peace to return the property. Anyone in this situation should contact the Austin Tenants’ Council or an attorney.

The Austin Tenants’ Council has a form entitled Unlawful Seizure of Property, that a tenant can send to the landlord before taking legal action. It explains how the landlord violated the law and demands immediate resolution.

The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.

Austin Tenants’ Council • 1640-B East 2nd Street • Austin, TX 78702 • 512.474.7006