A LOCKOUT IS NOT AN EVICTION. There are many misconceptions about a lockout. Some think it is a way to evict a tenant, and others think that the tenant has to pay the delinquent rent to be able to reenter the dwelling. The Texas Property Code, §92.0081 – §92.009, describes under what conditions a landlord may change the locks on a rental unit and the tenant’s remedies if the law is not followed.
A landlord may not change the locks because of a tenant’s failure to pay the rent unless the lease includes written notice of the landlord’s right to exercise a lockout.
The intention of the lockout law is to force a tenant who is delinquent in rent to have contact with the landlord to discuss the problem or to arrange payment. Landlords must follow a strict procedure when changing the door locks of a tenant, and the tenant must be given a new key whether or not any delinquent rent is paid. A landlord cannot legally, permanently lock a tenant out without going through the eviction process.
In short, the lockout law says:
- The lease must include written notice of the landlord’s right to exercise a lockout.
- The tenant must be behind on rent.
- The landlord must give advance, written notice to the tenant.
- The tenant does not have to pay any money to regain entry into the rental unit.
- The landlord must give the tenant a key upon request.
- A lockout is not an eviction.
The landlord of an apartment complex that receives housing tax credits is prohibited from locking out or threatening to lock out a tenant.
Exclusion of a Residential Tenant
For a landlord to legally change the door locks of a tenant, the tenant must be delinquent in paying all or part of the rent and the lease must include written notice of the landlord’s right to exercise a lockout. A landlord must do the following when changing the door locks of a tenant:
First Notice. At least five calendar days before the date the locks are changed, the landlord must locally mail a written notice to the tenant. This notice may also be hand-delivered to the tenant or posted on the inside of the tenant’s front door at least three days before the date the locks are changed. This written notice must state:
- The earliest date the locks will be changed;
- The amount of rent the tenant must pay to prevent lockout;
- The name and address of the person to whom, or the location of the on-site management office at which, the delinquent rent may be discussed or paid during the landlord’s normal business hours; and
- In underlined or bold print, the tenant’s right to receive a key to the new lock at any hour, regardless of whether the tenant pays the delinquent rent (for leases signed or renewed after January 1, 2008).
Second Notice. When the locks are changed, the landlord must place a written notice on the outside of the tenant’s front door stating:
- The on-site location where the tenant may go 24 hours a day to obtain the new key, or a telephone number that is answered 24 hours a day that the tenant may call to have the key delivered within two hours after calling the number;
- The fact that the landlord must provide the tenant with a new key at any hour whether or not the tenant pays the rent owed; and
- The amount of rent and other charges the tenant owes.
A landlord may not change the locks:
- On, or the day before, a day when the landlord isn’t available, or an on-site management office isn’t open, for the tenant to pay the back rent and late fees. This means the tenant has to have an opportunity to pay the rent due before the locks are to be changed;
- When the tenant or any other legal occupant is in the dwelling;
- More than once during a rental payment period; or
- To prevent the tenant from entering a common area of the rental property.
The Locks are Changed, Now What?
As soon as the locks are changed, the tenant should request a new key from the landlord. If the tenant arrives at the dwelling after hours or if the landlord is not on-site, the tenant should contact the name in the notice that is posted on the door. The landlord must bring a new key within two hours of the tenant requesting it.
Once a landlord is called, the tenant should remain at the rental property at least two hours until the landlord arrives. The reason is that if the landlord responds to the tenant’s phone call in a timely manner and the tenant is not there, the landlord just has to leave a notice on the front door of the dwelling stating the time the landlord arrived with the key and the street address to which the tenant may go to obtain the key during the landlord’s normal office hours.
A landlord who has changed the door locks of a tenant must give the tenant a key regardless of whether or not the tenant pays the delinquent rent. Some landlords will try to convince the tenant that the tenant does not have the right to live in the rental unit anymore. They will tell the tenant that the door is being unlocked so that the tenant can remove his/her belongings. This is incorrect. The law clearly states that the landlord must give the tenant a new key. The tenant can actually continue living in the dwelling until a court orders an eviction. Any lease clause waiving any of a tenant’s rights under the lockout law is void and not enforceable.
What if the Landlord Does Not Give the Tenant a Key?
If the landlord refuses to give the tenant a new key, the tenant can get assistance from the justice of the peace court by requesting an order called a writ of reentry. The tenant will need to specify both in writing and orally as to how the landlord violated the law. The court will typically charge the tenant a fee for the constable to deliver this order to the landlord. The tenant can ask the court to waive this fee by asking for a pauper’s affidavit. The tenant will have to disclose some financial information so the judge can make a decision. If the judge approves the pauper’s affidavit, the order will be delivered free of charge. This order will require the landlord to allow the tenant access to the rental unit.
As soon as the landlord is served with the writ of reentry, the landlord will need to immediately comply with the order or otherwise face the risk of being arrested and in contempt of court. The constable is allowed to use reasonable force in executing a writ of reentry.
If a landlord doesn’t follow the lawful procedure for changing a tenant’s door locks — either by not giving advance notice or not giving the tenant a new key when requested — the tenant has several options. The tenant may:
- Recover possession of the premises or terminate the lease contract; and
- Recover from the landlord a civil penalty of one month’s rent plus $1,000, actual damages, court costs, and reasonable attorney’s fees in an action to recover property damages, actual expenses, or civil penalties, less any delinquent rent or other sums for which the tenant is liable to the landlord.
If a landlord locks out a tenant and will not give the tenant a key unless the tenant pays delinquent rent, a tenant may recover an additional civil penalty of one month’s rent from the landlord in a court action.
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.