Manufactured Home Tenancies
On April 1, 2002, a new set of laws went into effect for tenants who lease a lot for a manufactured home or recreational vehicle that they own. The laws are found in Chapter 94 of the Texas Property Code and they apply to manufactured home communities in which four or more lots are offered for lease. An amendment to the laws, effective Sept. 1, 2003, changed the definition of an RV so that it must be “permanently tied to, affixed, or anchored to the premises as in the case of a park model unit.” A park model unit is defined as a vehicle that is built on a single chassis, mounted on wheels, and the gross trailer area does not exceed 400 square feet when set up.
A provision in a lease agreement or a manufactured home community rule that purports to waive a right or to exempt a landlord or a tenant from a duty or from liability under Chapter 94 is void.
At the time a landlord receives an application from a prospective tenant, the landlord must give the tenant a copy of the proposed lease agreement, any manufactured home community rules, and a separate disclosure statement with the following prominently printed in at least 10-point type:
You have the legal right to an initial lease term of six months. If you prefer a different lease period, you and your landlord may negotiate a shorter or longer lease period. After the initial lease period expires, you and your landlord may negotiate a new lease term by mutual agreement. Regardless of the term of the lease, if the recreational vehicle is tied to, affixed, or otherwise a permanent part of the premises, the landlord must give you at least 60 days’ notice if the landlord will not renew your lease and will require that you relocate your manufactured home or recreational vehicle. During the 60-day period, you must continue to pay all rent and other amounts due under the lease agreement, including late charges, if any.
Lease Terms and Agreement
If the tenant’s application is approved, the landlord must provide the tenant with a written lease that is typed or printed. Before signing the lease, the tenant is obligated to disclose the name and address of any person who holds a lien on the tenant’s manufactured home. After the lease is signed, the landlord must provide the tenant with a copy of the signed lease and a current copy of the manufactured home community rules. The lease agreement must contain the following:
- The address or number of the manufactured home lot and the number and location of any accompanying parking spaces.
- The lease term (the starting and ending dates).
- The amount of the rent, how often rent is due, and the day rent must be paid.
- The amount of late fees or other charges for services or facilities.
- The amount of the security deposit, if any.
- Any other terms or conditions of occupancy not expressly included in the manufactured home community rules.
- A description of the landlord’s maintenance responsibilities and the telephone number of the person who may be contacted for emergency maintenance.
- The name and address of the person designated to accept official notices for the landlord.
- The penalty the landlord can charge the tenant for terminating the lease early as provided by §94.201.
- The grounds for eviction as described in Subchapter E of Chapter 94 of the Texas Property Code.
- A disclosure of the landlord’s right to terminate the lease if the land use changes during the lease term as provided by §94.204.
- The date the landlord’s zoning permit expires if there is a temporary zoning permit for the land use of the manufactured home community.
- A disclosure of any addendum relating to submetering of utility service.
- A prominent statement that Chapter 94 of the Texas Property Code governs the rights of the tenant and the obligations of the landlord.
The law says that any provision in the lease that allows a rent increase or fee increase during the lease term must be initialed by the tenant or it is void. The law also says that any illegal or unconscionable provision in a lease is void. However, even if one provision of the lease is void, the rest of the contract will remain in force as long as it can stand on its own without the invalid provision.
Manufactured home community rules are considered part of the lease agreement. The landlord may add to or amend the rules during the lease term as long as they are not arbitrary or capricious. In other words, the rules must be reasonable and applied to everyone. Any change to the rules cannot go into effect until 30 days after each tenant is provided with a written copy of the new or amended rules. If a change requires the tenant to spend more than $25 to comply with the new rules, the tenant has at least 90 days from the date each tenant receives the written copy of the new or amended rule to comply.
Landlord’s Right to Enter
Generally, the landlord cannot enter a tenant’s manufactured home unless the tenant allows the landlord to enter. Either the tenant must be present and gives consent, or the tenant must have previously given written consent for a specific date and time. If the tenant gives the landlord written consent to enter the manufactured home, the tenant may revoke the consent at any time by notifying the landlord in writing. However, the landlord does have the right to enter the manufactured home in a reasonable manner and at a reasonable time if an emergency exists or the tenant abandons the manufactured home.
Tenants have the right to organize meetings among the manufactured homeowners in their community on matters related to manufactured home living. The landlord cannot interfere with these meetings and must include any limitations on meetings in the common area facilities in the community rules.
When the landlord leases the lot to the tenant, the landlord guarantees that the manufactured home lot is suitable for the installation of a manufactured home during the term of the lease. This guaranty, known as the warranty of suitability, means the landlord must maintain the lot so that it is free from any conditions that prevent the tenant from living on the property in a manufactured home. Furthermore, the law specifically requires the landlord to maintain all common areas so they are in a clean and usable condition; maintain tenant mailboxes if they are kept in a common location; maintain roads to provide access to each lot; provide for the removal of garbage and solid waste; and repair or remedy conditions that materially affect the physical health or safety of an ordinary tenant.
Procedure for Requesting Health and Safety Repairs
1. All rent must be paid.
A tenant who is behind in rent or withholds rent because repairs have not been made may be evicted and forfeits all rights to have repairs made until the rent is paid. The only time a tenant may withhold rent is when the tenant has given the required notices and is exercising the right to repair and deduct. See the section, “Repair and Deduct.”
2. If a landlord does not respond to telephone or oral repair requests, the tenant should send a letter by certified or registered mail to the landlord and/or manager which includes:
- The date;
- The tenant’s name and address;
- A description of the repair problem;
- A statement that the problem is a threat to health or safety;
- A request that the repairs begin in a reasonable amount of time (seven days is presumed to be a reasonable amount of time for most repairs. If there is an emergency, then as little as 24 hours notice can be given);
- A request for a written response if the work cannot be completed by the deadline; and
- A signature.
3. After the deadline given in the first letter has passed and if the landlord has not made a diligent effort to make the repairs, a tenant should write a second and final notice that is the same as the first.
This second notice DOES NOT have to be sent if the first notice is sent by certified mail, return receipt requested or by registered mail (available through the post office). If the first notice is delivered by any other method, then a second notice MUST be sent.
4. After the landlord has been notified of the needed repair and refused to respond or remedy the problem, the tenant may file suit in justice court without an attorney and seek an order for the repair, reduction in the rent, civil penalty of $500 plus one month’s rent, actual damages, and attorney’s fees if an attorney is hired.
5. Keep copies of the letter(s).
Having proof that the landlord received the request for repairs is always important. It is best to send it by certified or registered mail or to hand-deliver the request. If the letter is delivered in person, the tenant should take a witness who can attest to the fact that the letter was delivered or get a written receipt of its delivery from the landlord.
The Austin Tenants’ Council has a Self-Help Repair Packet, which includes form letters that can be used to make proper repair requests.
If a needed repair is the result of an insured casualty loss, such as fire, smoke, hail, explosion, or something similar, the landlord does not have to make the repair until the landlord receives the insurance proceeds.
If the casualty loss is not caused by the negligence or fault of the tenant or a guest of the tenant and the leased premises is totally unusable for the purposes for which the premises were leased, either the tenant or the landlord may terminate the lease by giving written notice any time before repairs are completed. If the lease is terminated, the tenant is entitled to a pro-rated refund of the rent and the return of the security deposit in accordance with the security deposit law.
If the casualty loss is not caused by the negligence or fault of the tenant or a guest of the tenant, and the leased premises is partially unusable for the purposes for which the premises were leased, the tenant is entitled to a reduction in rent in an amount equal to the extent the premises are unusable, but the tenant may NOT simply reduce the rent payment unless the landlord agrees in writing. A county or district court must determine the amount of the rent reduction to which the tenant is entitled in a lawsuit. However, the tenant will not be entitled to such a reduction in rent if the lease prohibits it.
If the Landlord Does Not Make Repairs
If all required notices have been sent and the landlord has not made a diligent effort to make health and safety repairs before the final deadline, then the tenant may, according to the Texas Property Code:
1. Terminate the lease and move.
The tenant should give the landlord a written notice that the tenant is terminating the lease. The notice should give a date by which the tenant will move. The tenant will be entitled to a refund of the security deposit in accordance with the law and to a refund of the rent for the remainder of the month after the tenant leaves. The tenant may also deduct the security deposit from the rent. A tenant who moves is also entitled to the other remedies listed below except the court order directing repairs and the court-ordered partial rent reduction.
2. Take the landlord to justice, county, or district court where an order may be issued:
- Directing the landlord to make repairs (available only in county and district courts);
- Granting partial rent reduction back to the date of the first request for repair;
- Awarding the tenant one month’s rent plus $500; and
- Awarding the tenant money for actual damages, reasonable attorney’s fees, and court costs.
3. Repair and deduct as outlined below.
Repair and Deduct
The repair and deduct law is complicated and ATC recommends that a tenant get further assistance before exercising this remedy by either contacting the Austin Tenants’ Council or an attorney.
To exercise the right to repair and deduct, two things must be done. First, the tenant must deliver the required notice(s) requesting the repair as outlined earlier. At least one of the notices given to the landlord must state the tenant’s intent to exercise the right to repair and deduct and include a reasonable description of the intended repairs.
Second, except as noted*, the tenant must have a local housing, building, or health official or other official having jurisdiction, notify the landlord in writing that a condition existing on the manufactured home lot materially affects the health or safety of the tenant. In Austin, the official having jurisdiction is usually an inspector from the City of Austin’s Building Inspection Department, but it may also be an inspector from the Austin/Travis County Health Department or a fire marshal.
*In three situations, a tenant may exercise the right to repair and deduct without having an official send verification that the condition is a threat to health or safety:
- If the landlord has failed to remedy the backup or overflow of raw sewage inside the tenant’s manufactured home that results from a condition in the utility lines installed in the manufactured home community by the landlord; or
- If the landlord has agreed to supply potable (drinking) water to the tenant’s manufactured home lot and the water service has totally ceased.
- If the condition involves inadequate heat or cooled air.
If the repair problems involve backup or overflow of sewage, the landlord must respond immediately after receiving notice from the tenant or the tenant has the right to repair and deduct. If the condition involves the lack of water or inadequate heat or cooled air, the landlord must repair or remedy before the fourth day after the final notice is received or the tenant has the right to repair and deduct. (The first notice is the final notice if it is sent by certified or registered mail.)
If the above conditions are met and the landlord has failed to repair or remedy immediately (for sewage backup), within three days (for lack of drinking water), or within a reasonable amount of time (for other conditions affecting health and safety), a tenant may have the repairs made and deduct the costs from the monthly rent by using the following procedure.
The tenant’s deduction for the cost of the repair or remedy may not exceed the amount of one month’s rent, or $500, whichever is greater. If the tenant’s rent is subsidized in whole or in part by a governmental agency, the limitation of one month’s rent is the fair market rent of the lot and not the actual amount the tenant pays.
Repairs must be made by a company, contractor, or repairman listed in the yellow pages or business pages of the telephone directory or in the classified advertising section of a local newspaper. Repairs may not be made by the tenant, the tenant’s immediate family, the tenant’s employer or employees, or a company in which the tenant has an interest. However, a tenant and landlord may agree for the tenant to repair or remedy, at the landlord’s expense, any condition on the manufactured home lot.
Repairs must be made in compliance with applicable building codes, including a building permit when required. When deducting the cost of repairs from the rent payment, the tenant must give the landlord the balance of the rent, a copy of the repair bill, and the receipt for its payment.
Procedure for Requesting Repairs That Are Not a Threat to Health or Safety
A landlord’s obligation to repair conditions that are not a threat to health or safety is determined by the lease terms. A landlord must comply with the promises made in the lease agreement. The tenant should use the following procedure for these types of repairs.
1. All rent must be paid.
A tenant who is behind in rent or withholds rent because repairs have not been made may be evicted and forfeits all rights to have repairs made until the rent is paid. The only time a tenant may withhold rent is when the tenant has given the required notices and is exercising the right to repair and deduct. See the section, “Repair and Deduct.”
2. A letter should be sent to the landlord and/or manager by certified or registered mail that includes:
- The date;
- The tenant’s name and address;
- A statement of the repair problem;
- A request that the repairs begin within 10 days, with a warning that the tenant will take legal action to enforce his rights if the repairs are not made; and
- A signature.
It is also a good idea to simultaneously hand-deliver a copy of the repair request to the landlord or manager.
Having proof that the proper request was made is always important. The tenant should keep a copy of the letter. Although sending a repair request by certified or registered mail is best, the tenant can hand-deliver the letter with a witness or get a written receipt of its delivery from the landlord. It is a good idea to send a second copy by first class mail.
If the landlord has not made a diligent effort to make repairs after receiving written request, the tenant will need to go to court to enforce his rights. Small claims court is suitable for a tenant who wishes to recover only monetary damages. If the tenant wants to be released from the lease or wants an order for the landlord to make the repairs, suit must be filed in county or district court.
A Landlord May Not Retaliate
Section 94.251 prohibits a landlord from retaliating against a tenant by filing an eviction proceeding, depriving the tenant of the use of the premises, decreasing services to the tenant, increasing the tenant’s rent, terminating the tenant’s lease, or in bad faith interfering with the tenant’s rights under the lease for six months from the time the tenant in good faith takes any of the following actions:
- Gives a landlord a notice to repair or exercises a remedy under Chapter 92 of the Texas Property Code;
- Attempts to exercise against a landlord some right or remedy granted to the tenant by the lease, municipal ordinance, or federal or state statute; or
- Complains to a government entity, a public utility, or a civic or nonprofit agency about a building or housing code violation or utility problem.
Retaliation by the landlord is a defense to an eviction even at the end of the lease term. In other words, the landlord may not refuse to renew the tenant’s lease in retaliation for the tenant’s actions. The landlord, however, may evict the tenant if the landlord can prove that the eviction is not in retaliation (e.g. if the tenant owes rent). Also, the landlord may increase the rent or decrease services if it is part of a regular pattern of rent increases or service reductions for the entire manufactured housing community.
If a court finds that a landlord retaliated against a tenant, the tenant may recover (less any rent or other sums the tenant owes the landlord):
- One month’s rent plus $500;
- Actual damages including moving costs if the tenant has moved;
- Court costs and attorney’s fees.
The tenant is also entitled to declaratory or injunctive relief from court. In Austin, a landlord who retaliates against a tenant for calling the building inspection department may also face criminal penalties.
Assistance in Enforcing Repair Rights
If the landlord does not respond to repair requests, a tenant may want to call the local building inspection department for an inspection of the rental property. A building inspector will investigate the complaint and send an assessment of conditions to the owner if substandard conditions are found. The tenant should request a copy of this report from the building inspector. In Austin, call the building inspection department at 311 or 974-1855. An inspection will be performed free of charge. Contacting the local health department inspector and/or fire marshal may also be appropriate.
The Austin Tenants’ Council has two programs which assist tenants who live in Austin in obtaining repairs:
- The Telephone Counseling Program advises tenants and landlords about their rights in Texas. The telephone number for the counseling line is 512-474-1961.
- The Repair Mediation is a mediation program for low- to moderate-income tenants. Repair Mediations provides assistance to tenants who need repairs which are a threat to their health or safety. To qualify for Repair Mediation, a tenant must be income eligible and current on rent. Through this program, a tenant will be assisted in enforcing repair rights under the Texas Property Code repair law. The telephone number for this program is 512-474-7006.
A landlord must provide a tenant with the name and address of the owner(s), as well as the name and address of the management company if the manager is employed by a company that is located off-site. After the tenant requests it in writing, the landlord has seven days to provide the information to the tenant. The request should be sent by certified or registered mail or hand-delivered with a witness.
The landlord can provide ownership/management information in several ways: 1) Providing the tenant with the names and addresses in writing; 2) Continuously posting the information in a conspicuous place in the manufactured home community or in or near the management office; or 3) Including the information in the tenant’s lease or as part of the written manufactured home community rules.
When a change in the ownership or management occurs, the landlord must correct the name and address of the owner or off-site management company disclosed to the tenant within 15 days after the change occurs. Corrections can be provided individually or by continuously posting the information in or near the management office. The landlord can also amend the ownership information in the rental agreement or written rules and provide the tenant with a copy.
Another way to discover the owner’s name and address without having to ask the landlord or manager is to contact the tax appraisal office in the county where the property is located. This information is public record and will be released to anyone who requests it. The number in Travis County is 834-9138 and the website is www.traviscad.org.
Most lease agreements state that rent is due on a specific date without a grace period. Sometimes there is a difference between the due date and when late fees will begin to be charged, but rent is late if not paid by the due date. Tenants should be aware that a landlord can start the eviction process when the rent is only one day late. Though it may be difficult for the landlord to evict a tenant for paying rent the day after the due date, the best policy for a tenant is to pay the rent by the due date.
If a lease allows rent to be mailed to the landlord, rent is considered paid by the postmarked date unless the lease says otherwise. Placing payment into a drop box or mailbox is risky because the payment could be lost or stolen. The burden of proof is on the tenant to show the rent was paid. Therefore, if the tenant must leave a rent payment in the drop box, the tenant should bring a witness with him.
If a tenant uses cash or money order for rent payment, a receipt should be obtained from the landlord at the time rent is paid. The landlord is required to provide a written receipt for cash rental payments and maintain records of those payments.
If a tenant pays with a money order, it should be filled out completely, including the payee’s name, the tenant’s name and address, and the month for which the rent payment is made. The tenant should get written acknowledgment from the landlord as soon as possible so there is never a question about when rent was paid. The money order stub is not proof that rent was paid; it is only proof that a money order was purchased. Whenever possible, tenants should avoid putting money orders — and never cash! — into a drop box or mailbox. If the payment is lost or stolen, the tenant may be unable to prove the payment was ever made. Money order companies typically take six to eight weeks to research and refund a money order.
The tenant should keep a file of all rent receipts as documentation that rent has been paid. If the landlord will not provide rent receipt(s), the tenant should write one and try to obtain the landlord’s signature. If all attempts to get a receipt fail, the tenant should make payments with a witness or mail the money by certified mail.
The landlord is required to give the tenant 60 days’ written notice of lease non-renewal if the landlord wants to terminate the lease at the end of the lease term. The landlord must also give the tenant 60 days’ notice of non-renewal before terminating a month-to-month lease. The landlord can give the tenant less than 60 days’ notice of lease termination, but only if the landlord compensates the tenant in advance for relocation expenses.
If the landlord is not renewing a lease because of a desire to change the land use, the landlord must give the tenant at least 180 days’ written notice of lease termination or non-renewal before the change takes place. The notice must specify the date that the land use will change and that the tenant must relocate. The landlord must also send written notice to the owner of the manufactured home, if different from the tenant, and to the lienholder, but only if the landlord has been provided with the lienholder’s name and address in writing. A landlord may not terminate a lease for a change in land use prior to the end of the lease term unless the lease agreement gives the landlord that right.
According to §94.201 if the tenant moves before the end of the lease term, the landlord can charge the tenant for all of the rent due through the end of the lease and any other amounts owed under the lease. However, the landlord must attempt to mitigate damages by trying to re-rent the lot. If the lot is re-rented, the landlord cannot hold the tenant liable for rent collected from another tenant. Thus, the tenant will usually owe rent for the period the lot is vacant after the lease is broken and other charges such as the reletting fee. However if the lot is reoccupied within 20 days of the date when the tenant moves, the landlord cannot charge the tenant more than a total of one month’s rent for breaking the lease.
Selling the Manufactured Home
If a tenant sells his manufactured home before the lease expires, the landlord has to approve the purchaser in writing and sign a new lease with the purchaser. Of course, the tenant does not need the landlord’s approval to sell the home if the tenant is planning to move the home from the rented lot.
The landlord is required to give the tenant 60 days’ notice if offering a lease renewal. The landlord is also required to inform the tenant in the notice that if the tenant does not reject the landlord’s offer to renew within 30 days, the lease will renew under the terms proposed by the landlord. Thus, the tenant has 30 days to decide whether to accept the new terms or to vacate when the lease expires. If the tenant intends to move, the landlord should be given notice in writing that the tenant does not want to renew the lease. The tenant should keep a copy of the notice and have proof that the landlord received it. If the tenant does not reject the landlord’s offer within 30 days, the lease will automatically renew under the modified terms.
The law states that the landlord has 30 days after the tenant surrenders the manufactured home lot to refund the security deposit. If the tenant fulfills the lease contract and leaves the unit/lot in good condition except for normal wear and tear, the security deposit is always refundable; a tenant can never waive his right to a refund of the security deposit. However, the landlord can keep part of the deposit for charges owed under the lease and damages beyond normal wear and tear. If the landlord retains all or part of a security deposit, the landlord is required to give to the tenant a written description and itemized list of all deductions providing the tenant meets two conditions, which are:
1. Rent is paid.
A landlord is not required to give the tenant a description and itemized list of deductions if the tenant owes rent when the tenant moves from the lot and there is no controversy over the amount of rent owed. The landlord still has to refund the remainder of the deposit.
2. Forwarding address.
The landlord is required to return a deposit within 30 days after the tenant vacates the manufactured home lot, but only if the tenant gives the landlord the tenant’s forwarding address in writing. The tenant does not forfeit the right to a refund of the security deposit or the right to receive a description of damages just because the tenant did not provide a written notice of forwarding address. The tenant should send the forwarding address certified mail, return receipt requested. However, the landlord may have 30 days from the date of receiving written notice of forwarding address to refund the deposit or to send an itemized list of deductions from the deposit.
A tenant must meet the above conditions to ensure a refund of the deposit, but meeting those conditions is not all the tenant should do. The chances of receiving return of the deposit will be increased if the following suggestions are also followed:
1. Move-In Inventory and Inspection.
Arguments may arise over the condition of the lot when the tenant moved in, so preventative measures should be taken. The tenant should make a written list of any defects and sign and date it. The tenant should then ask the landlord to sign it. If the landlord refuses to sign the move-in inventory, the tenant should use other means to document the condition of the property. The tenant may take pictures or video and get an impartial witness to view the lot during the move-in. Such additional documentation is always a good idea for tenants. The tenant should send a copy of the move-in inventory to the landlord and keep a copy.
2. Move-Out Notice.
The Texas Property Code says that advance notice of move-out can be a condition for return of the deposit if the requirement for advance notice is written into a lease and is underlined or in conspicuous bold print. Even if the lease does not require it, giving the landlord written notice rather than oral notice prior to moving is always advisable.
3. Move-out Inventory and Inspection.
When the tenant is ready to move, the manufactured home lot should be prepared and the landlord asked to appear for an inspection. The tenant should fill out another inventory form, similar to the move-in inventory. If the landlord has any disputes, the tenant should negotiate them on the spot. The tenant should have someone act as a witness to the condition of the lot, especially if the landlord is not present or if the landlord does not sign the inventory. The tenant can also take pictures or video to have further proof of the condition of the lot. These inventory lists are important evidence if the tenant and landlord end up in a dispute or in court.
What Can the Landlord Deduct from the Security Deposit?
A landlord cannot legally deduct for normal wear and tear. This refers to deterioration that occurs during regular, daily, intended use of the lot. Damages caused by negligence, carelessness, accidents, or abuse by the tenant or the tenant’s guests are not normal wear and tear. If the tenant surrenders the lot in the same condition as the tenant found it, except for normal wear and tear, and no money is owed to the landlord under the lease, the tenant should get all of the deposit back.
If the landlord makes any deductions from the deposit, a written, itemized accounting of how much is being charged for each item must be sent to the tenant. If the landlord fails to provide such an accounting within 30 days after the tenant moves out and the tenant has provided written notice of forwarding address, the landlord may forfeit the right to withhold any part of the deposit. The deductions taken from the deposit must be for actual damages suffered by the landlord.
How to Dispute Deposit Deductions
If a tenant receives a list of deductions that are not reasonable, the tenant should send a letter of dispute to the landlord. The letter should include a response to each of the deductions, explaining which charges are disputed and why. The tenant should also demand the refund of any deposit that the tenant believes is due. The tenant should keep a copy and send the original by certified mail, return receipt requested.
If the tenant receives a partial refund and disputes the deductions the landlord made, the tenant may want to refrain from cashing the check. Some courts will consider cashing of the check as acceptance of the deductions. If the tenant must cash the check, the dispute letter should state that even though the tenant cashed the check he does not agree with the deductions.
What if Rental Property Changes Ownership?
If a new owner buys the rental property, all lease agreements and deposits should be transferred from the previous owner to the new owner. The new owner is responsible for the return of the security deposit. However, the old owner also remains liable for a security deposit until the new owner gives the tenant a statement acknowledging receipt of the deposit. Unless there are records of the move-in inventory, the new owner will probably not be able to establish the condition of the lot when the tenant moved in. Therefore, it may be difficult for a new owner to deduct damages from the tenant’s security deposit. The deposit should be refunded unless the new owner can prove that the tenant damaged the lot. Regardless, it is always in the tenant’s best interest to take proper care of the rental property.
If the security deposit and/or itemized list is not mailed within 30 days after the tenant surrenders the lot and turns in a forwarding address, the landlord is presumed to have acted in bad faith. A landlord who makes unlawful deductions may have also acted in bad faith. The tenant can attempt to recover the deposit through mediation or the tenant can sue the landlord.
Before pursuing these options, the tenant should first give the landlord an opportunity to pay the money owed by sending a 10-day demand letter by certified mail. ATC has form letters or they can write their own letter. The letter should include the tenant’s current and previous addresses, the date the premises were vacated, the amount of the security deposit, and a statement that if the deposit is not returned within 10 days from the day the landlord receives the letter the tenant will pursue legal remedies.
If the tenant goes to court and can show the landlord acted in bad faith, the court can award the tenant:
- Three times the amount of the deposit wrongfully withheld;
- An additional $100;
- Reasonable attorney’s fees; and
- Court costs.
What if the Tenant Breaks the Lease or Does Not Occupy the Lot After Paying a Deposit?
A tenant does not automatically forfeit the security deposit for breaking a lease, but the deposit can be used to cover costs for which the tenant is liable. For example, the landlord may have grounds to keep some or all of a deposit to pay for lost rent or other monies due under the lease.
If a tenant has entered into a lease with a landlord and paid a security deposit or prepaid rent and does not move the manufactured home onto the lot, the tenant is entitled to a full refund if the tenant finds a replacement tenant satisfactory to the landlord who occupies the lot by the date the lease begins. On the other hand, if the landlord secures the replacement tenant, the landlord may deduct from the security deposit or rent prepayment any amount agreed to in the lease as a lease cancellation fee OR actual expenses incurred by the landlord, including lost rent and a reasonable amount for the landlord’s time in finding a replacement tenant.
Can the Deposit Be Used in Place of the Last Month’s Rent?
The security deposit law contains a protection for landlords. Normally, the tenant cannot deduct the security deposit from the last month’s rent without the landlord’s written permission. If the tenant withholds part of the rent and claims that the security deposit makes up the balance, that action will be in violation of the law. If a court finds that the tenant acted in bad faith, the landlord can recover from the tenant:
- Three times the amount wrongfully withheld;
- Court costs; and
- Reasonable attorney’s fees.
The only time a tenant may use the security deposit in place of the last month’s rent is when the tenant terminates the lease under the repair law. See the section entitled “Repairs” for more information.
The eviction process is a formal procedure that requires the landlord to file suit at the justice of the peace (JP) court or a higher court. The eviction process is comprised of several steps that must occur in a specific order. Evictions can be complicated so it is important to read this entire chapter carefully.
A landlord of a manufactured home lot may evict a tenant who is in violation of a lease provision or community rule. A landlord may also evict a tenant who owes rent or other amounts due under the lease as long as the total amount due is equal to at least one month’s rent. The landlord must first give the tenant 10 days’ written notice to pay the delinquent amount before serving the tenant with a notice to vacate.
Notice to Vacate
This notice, also known as a demand for possession, must be in writing and must be delivered to the tenant before the landlord can go to court. The landlord has to give the tenant at least three days to vacate unless a written lease sets a different time period, such as 24 hours. The notice must:
- State the number of days the tenant has to vacate;
- Indicate the tenant’s right to occupancy is being terminated or that the lease is being terminated; and
- Demand that the tenant vacate by the date specified.
This notice must be delivered one of two ways, either:
- To the tenant or any person 16 years of age or older residing in the unit; or
- By certified, registered, or regular mail.
Either way, the landlord should have proof that the tenant received the notice.
Chapter 24 of the Texas Property Code allows a landlord to affix the Notice to Vacate on the inside of the front entry door and in some cases to the outside of the door. However, Chapter 94 states that the landlord may not enter the manufactured home without the tenant’s specific permission, thus preventing the landlord from affixing the notice to the inside of the door. Furthermore, a landlord can only affix the notice to the outside of the door if there is no mailbox and Chapter 94 requires the landlord to provide a mailbox. Regarding manufactured homes, it is unclear whether the landlord has the right to deliver the Notice to Vacate by affixing it to the inside or outside of the front entry door.
The tenant does not have to move off of the property by the date indicated in the Notice to Vacate. Typically, the landlord cannot remove the tenant or the tenant’s home without a court order. (See “Abandonment.”) If the tenant does not move, the landlord must then file an eviction suit with the local justice of the peace court. After the landlord files the eviction suit, the court clerk will send the eviction citation to the constable’s office for service on the tenant. The constable will attempt to hand-deliver the citation to the tenant at the tenant’s home. After two unsuccessful attempts, the constable may slip the citation under the front door or attach it to the front door and mail a copy by first class mail.
If the eviction is for nonpayment of rent, the tenant should attempt to pay the money due. If the landlord accepts it, the tenant should get a written receipt and try to get the landlord to sign an agreement to drop the eviction. Though a landlord will usually forfeit the right to evict a tenant by accepting payment of the rent owed, the tenant should assume the landlord is going to continue with the eviction until the court says the case has been dropped. Landlords sometimes promise to drop an eviction and then still evict the tenant. So even if the tenant pays the rent, the tenant should go to court at the designated time unless the court confirms that the case has been dismissed.
The Tenant’s Answer
In Travis County, the justices of the peace set a trial date in the eviction citation. If the tenant prefers a jury trial, then the tenant will have to pay a jury fee within five days. The procedure and time period may be different in other counties, so read the citation carefully and follow the instructions!
Occasionally, a landlord will file a six-day immediate possession bond with the eviction suit. When a landlord files a six-day immediate possession bond, the tenant is served an eviction citation that clearly states that the landlord has filed the immediate possession bond and it gives the tenant six days in which to respond and set up a hearing. If the tenant fails to demand a trial within six days, the landlord can obtain a Writ of Possession immediately after the sixth day passes. If the tenant demand a trial by the sixth day, a hearing date will be set and the eviction will proceed the same as a standard eviction. If the tenant loses at the hearing, the tenant will still have five days after the hearing date to either move out or set up an appeal.
In Travis County, the tenant may simply appear for trial. No written answer is required in justice court.
Failure to appear at trial allows the landlord to get a default judgment against the tenant. If the court awards the landlord a default judgment, the court must notify the tenant by sending a written notice within 48 hours after the entry of the judgment.
Going to Court
On the trial date, the landlord and the tenant appear before the justice of the peace and present their case. If the tenant does not appear, the landlord can get a default judgment against the tenant at this time. Both parties should be prepared to present all evidence necessary for their case. The judge will make a decision based on the facts presented during the eviction hearing. If the judgment is in favor of the landlord, the tenant will have five days either to move or to appeal the decision. If the judgment is in favor of the tenant, the landlord also has five days to appeal. But even without filing an appeal, a tenant may get additional time by paying a month’s rent to the landlord. See “Writ of Possession.”
Filing an Appeal
To file an appeal, the tenant will either have to post an appeal bond or file a pauper’s affidavit. The pauper’s affidavit, also known as an affidavit of inability to pay, can be filed if the tenant does not have the money or property to post the bond. If the eviction is for nonpayment of rent and the tenant appeals by filing a pauper’s affidavit, the tenant can stay in possession of the property during the appeal by paying one month’s rent into the justice court’s registry. Payment must be made within five days of filing the affidavit, and the tenant must make future rental payments into the county court’s registry within five days of the date due under the lease. If the eviction is NOT for nonpayment of rent, the tenant should continue to pay rent directly to the landlord during the appeal or the landlord can file a new eviction for nonpayment of rent.
If an appeal is made and the tenant did not file a written answer with the justice court, the tenant must file a written answer with the county court within eight days after the appeal papers are filed in the county court. The county court will send the tenant notice that it has received the paperwork for the appeal so the tenant will know when the eight days begin. The tenant must also pay a county court filing fee within 20 days after receiving notice of the fee or file an affidavit of inability to pay the filing fee, unless the tenant filed a pauper’s affidavit in justice court. If the tenant fails to do either, the appeal will be dismissed and the landlord can get a Writ of Possession.
Because the appeals process is complicated, tenants should consult an attorney for more information.
Appointment of Counsel
A tenant who successfully files a pauper’s affidavit in the appeal of an eviction may request in writing that the county court or county court at law appoint a pro bono attorney to represent the tenant during the appeal.
Writ of Possession
If the tenant does not move out or appeal the eviction within five days, the landlord still cannot remove the tenant from the property. The landlord must first request that the judge issue a Writ of Possession, which is a court order directing the constable or sheriff to place the landlord in possession of the lot. This means the tenant, all occupants, and the manufactured home will be removed by the landlord under the supervision of the constable or sheriff.
The tenant can delay the Writ of Possession for 30 days by paying 30 days rent to the landlord. Payment must be made before the court issues the Writ of Possession, which is usually five days after the judgment is made. The tenant should get a receipt from the landlord and provide written notice to the court that rent has been paid for 30 days. If the landlord refuses to accept rent, the tenant should provide written notice to the court and pay rent into the court’s registry. The Austin Tenants’ Council has a form that can be filed with the court.
The tenant will get one final notice before the Writ of Possession is executed. The officer executing the writ must post a written notice on the tenant’s front door — on a paper that is no smaller than 8 1/2 x 11 inches — giving the tenant an additional 24 hours to move. The notice must inform the tenant that a writ has been issued and state the date and time it will be executed. If the landlord removes the tenant’s manufactured home after the Writ of Possession is executed, the landlord must notify the tenant in writing of the location of the manufactured home within 10 days.
Abandonment Unlike in residential landlord-tenant leases, Texas law does not specifically allow a manufactured home community landlord to declare abandonment and remove the tenant from the rented property. Common law may allow the landlord to use this “self-help eviction,” but it is unclear at this point. However, the landlord would be able to declare abandonment if the lease allows the landlord to do so. A landlord who declares abandonment and removes the tenant’s manufactured home, without a lease provision that specifically provides for it, may be considered to have illegally evicted a tenant.
Except as noted in those specific sections, a tenant may sue a landlord who violates any laws in Chapter 94 of the Texas Property Code for:
- Actual damages;
- A civil penalty in an amount equal to two months’ rent and $500; and
- Reasonable attorney’s fees and costs.
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.
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