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Texas Landlord Rights under COVID-19 Emergency Orders

Author: Kristin Lee Schulze

Contributing Editor: Jason Hanna

Reading through the Supreme Court of Texas’ Emergency Orders Regarding the COVID-19 State of Disaster reads a bit like Educational Decrees stacked to the ceiling in a Harry Potter movie.

As of July 6, 2020, the Supreme Court of Texas has issued nineteen such Emergency Orders since March 13, 2020. In seeking the current state of affairs regarding eviction rights in the State of Texas, it is beneficial to start with the first Emergency Order addressing eviction proceedings.

On April 27, 2020, the Supreme Court of Texas, in their Twelfth Emergency Order Regarding the COVID-19 State of Disaster[1], outlined available remedies to Texas Landlords. Therein, the Supreme Court of Texas stated that “any action for eviction to recover possession of residential property under Chapter 24 of the Texas Property Code and Rule 510 of the Texas Rules of Civil Procedure:

a. No trial, hearing, or other proceeding may be conducted, and all deadlines are tolled, until after May 18, 2020;

b. A writ of possession may issue, but the posting of the written warning required by §24.0061(d)(1) of the Property Code and the execution of the writ of possession may not occur until after May 25, 2020, and the deadlines in Rules 510.8(d)(1)-(d)(2) are suspended while this Order remains in effect; and

c. New filings may be accepted, but the time period in Rule 510.4(a)(10) is suspended, and issuance and service of citation may not occur until after May 18, 2020.”

The Supreme Court of Texas further provides that eviction cases “may nevertheless proceed and a writ of possession may issue if, but only if:

a. The plaintiff files a ‘Sworn Complaint for Forcible Detainer for Threat to Person or For Cause’;

b. The court determines that the facts and grounds for eviction stated in the Complaint, under oath with personal knowledge, taken as true, show that the actions of the tenant, or the tenant’s household members or guests, have threatened or pose an imminent threat of (i) physical harm to the plaintiff, the plaintiff’s employees, or other tenants, or (ii) criminal activity; and

c. The court signs an order stating procedures for the case to proceed.”

On May 14, 2020, the Supreme Court of Texas, in their Fifteenth Emergency Order Regarding the COVID-19 State of Disaster, decrees that beginning “May 19, 2020 eviction proceedings may resume and deadlines are no longer tolled, and beginning May 26, 2020, warnings may be posted and writs of possession may be executed.” The Order goes on to uphold the additional requirement of plaintiff to file a ‘Sworn Complaint for Forcible Detainer for Threat to Person or For Cause’ for eviction proceedings filed March 27, 2020 through July 25, 2020, pursuant to TRCP 510.3(a)(2) affirming that the premises are not subject to the moratorium on evictions imposed by Section 4024 of the CARES Act.

Section 4024 of the CARES Act is of particular importance to Landlords. It imposes a national Moratorium on the charging of fees and the initiating of new evictions for non-payment of rent. The Moratorium lasts for 120 days, March 27, 2020 through July 25, 2020, and applies to “Covered Properties” – those with a federally backed mortgage or multifamily mortgage loan through the Department of Veterans Affairs (VA), the Department of Agriculture (USDA), the Federal Housing Administration (FHA), the Department of Housing and Urban Development (HUD), Fannie Mae or Freddie Mac; or Occupied by a resident who participates in a covered housing program or the rural housing voucher program.[2]

However, while many within the real estate sectors interpret the applicability of the CARES Act eviction moratorium to be limited to covered properties and further specific dwellings within some covered properties, as was Congress’ intent, Section 4024 of the CARES act as written leaves room for an expanded interpretation.

In keeping with the recommendations of various real estate administration agencies, as well as of countless Federal and State officials, it would seem that the best course forward when facing difficulties with tenants during the COVID-19 disaster is one of Landlord mitigation. It is advised that rental property owners, managers, and residents work together to find the best collective solution(s) for issues such as economic hardship during this time of unprecedented health crisis in our Country.

Under the CARES Act, Covered Property owners are prohibited from issuing a notice to vacate, initiating an eviction filing, or assessing fees or penalties on residents for nonpayment of rent. Additionally, Covered Property owners under this section may not issue a notice to vacate until after the expiration of the moratorium or require a renter to vacate until 30 days after the notice to vacate has been issued.

Under the current climate, evictions for Non-Covered Properties, in the State of Texas, are permitted at this time. However, there exists the potential for changes in the next few weeks under the CARES Act and/or a new addition to the mounting Emergency Orders from the Supreme Court of Texas. If you are concerned about your rights as a property owner, you should contact our offices today.

 

[1] https://www.txcourts.gov/media/1446470/209059.pdf

[2] https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf

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