Here are answers to some common questions managers have asked.
- Can we do a contractual lien?
- Can we do a lock-out before filing an eviction?
- Can we accept partial rent and still file and eviction?
- Can we deduct the water bill from the rent?
- What can we charge a resident for breaking their lease?
- How many people are allowed in a one bedroom apartment?
- How much can we charge for late fees?
- How much can we increase the rent?
- Can we charge a reletting fee AND accelerated rent if the resident is breaking the lease?
- My resident is threatening to file bankruptcy an not pay my property for the rent they owe. Can they do that?
- Are smoke alarms required in bedrooms?
- So no fire alarms are required?
- Do I need to register my property under the Habitability Ordinance?
- I have just had a fire at my community, how do I reach the Red Cross for help?
Can we do a contractual lien?
Yes but you can only do a contractual lien for non-payment of rent if it is stated in the lease.
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Can we do a lock-out before filing an eviction?
Yes, as long as you give the resident a three to five day notice of intent to lock-out prior to the lock-out.
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Can we accept partial rent and still file and eviction?
Accepting money at any time does not waive your right to damages, past or future rent or other sums or to continue with the eviction proceedings.
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Can we deduct the water bill from the rent?
No, you can only deduct things such as a resident breaks a window and you have to repair it.
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What can we charge a resident for breaking their lease?
The resident can be charged throughout a 30 or 60 day notice, the reletting fee, cleaning charges and accelerated rent.
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How many people are allowed in a one bedroom apartment?
Each community can set their own policy as long as they are consistent with it or according to The Texas Commission of Human Rights two adults with a child under six months of age is acceptable in a one bedroom unit.
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How much can we charge for late fees?
The amount would be whatever the resident agrees to when signing the lease or whatever the policy is for the community. If provided for in the written lease
agreement, a late charge may be imposed but cannot be charged until rent is
unpaid for two days. This means that if rent is due on the first of the month,
the earliest you can lawfully begin charging a late fee is on the third of the
month. You can still charge an initial
late charge and subsequent daily late charges as long as the rent is past due
There is no limitation in the state law on the number of days you may assess
late charges. However, the TAA Lease Contracts only allow you to assess a
maximum of 15 days of daily late charges. You can give a notice to vacate if rent is due on the first but not
received however remember late charges may not be imposed until the
third of the month, assuming rent is due on the first of the month.
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How much can we increase the rent?
Under the terms of the TAA lease, no rental increases can be given until the initial lease term has expired. After the lease has expired, an increase of any amount (the state of Texas has no rent control) can be given provided the resident has been served with a 35 day notice prior to the effective date of the new rental amount before the lease has expired.
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Can we charge a reletting fee AND accelerated rent if the resident is breaking the lease?
Yes you can. The resident is responsible for the reletting fee, which is a fee of up to 85% of the monthly rent and can also be charged until the lease expires or the apartment is rented again.
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My resident is threatening to file bankruptcy an not pay my property for the rent they owe. Can they do that?
resident fails to pay rent when due and you decide to file the eviction action. Everything
is going fine, but when you get to the court, the resident tells the judge that
he or she has just filed for bankruptcy. The judge tells you that you cannot go
forward with your action. You are confused. If the resident hasn't paid rent,
you wonder why in the world the judge says you can't go forward. One of the
most frustrating issues an owner faces is when a delinquent resident files for
bankruptcy. Let's take a look at the bankruptcy process and how it affects an
the bankruptcy petition
filing for bankruptcy usually do so under "Chapter 7" or under
"Chapter 13". In a Chapter 7 bankruptcy, the debtor's assets (minus
those exempted by the state) are liquidated and given to creditors, and many of
the debtor's remaining debts are canceled, giving the debtor what is known as
a "fresh start." In a chapter 13 bankruptcy, the debtor is put on a
repayment plan for up to five years. Any debts not addressed by the repayment
plan don't have to be paid. Under the
bankruptcy law titled "The Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005," a number of changes were made to the law which
make it more difficult for persons to file a Chapter 7 bankruptcy. These
changes also make it easier to evict under certain circumstances.
law, bankruptcy applicants who wish to file under Chapter 7 must meet certain
eligibility requirements under a means test. The means test is aimed at
reducing abusive Chapter 7 filings. If a debtor's income is sufficient to pay a
significant part of his or her debts, the bankruptcy court presumes that
granting the debtor relief under Chapter 7 is an abuse of the bankruptcy
process. Under the means test, if the debtor's current monthly income is less
than the median income in the state, the debtor can file for bankruptcy under
Chapter 7. If the debtor's monthly income is above the median income in the
state and he or she can afford to pay $100 per month toward paying off the
debt, the debtor cannot file under Chapter 7 and must proceed under a Chapter
law, a debtor filing bankruptcy under Chapter 7 or Chapter 13 must show proof
of income by providing federal tax returns from the previous year. The debtor
must also submit all evidence of payments from employers for the 60 days prior
to filing for bankruptcy with schedules and a statement of financial affairs.
law, a debtor may not file a petition for bankruptcy unless he or she completes
an approved credit counseling course within 180 days before filing. Each debtor
is required to file a certificate from an approved credit counseling agency
that provided the services with the bankruptcy petition. A debtor may delay
taking the course until after filing if he or she can prove the filing was
caused by circumstances that could not have been known in time to take the
vs. post-petition debts
bankruptcy petition is filed, the court will identify two separate types of
debts. Pre-petition debts are debts incurred prior to filing the bankruptcy
petition; post-petition debtors are those that are incurred after the filing of
the bankruptcy petition. This becomes particularly important when determining
whether you can proceed with an eviction action against a delinquent resident.
If the only rent due is pre-petition debt, you will not have the right to go
forward with the eviction action. Rather, the amount owed to you will be paid,
or discharged, pursuant to whatever liquidation (in a Chapter7) or bankruptcy
plan (in a Chapter 13) is authorized by the bankruptcy court.
cases, the resident/debtor continues to be delinquent after filing the
bankruptcy petition; consequently, the eviction action remains a remedy for the
owner, but only after following the procedures identified below to lift the
stay, if applicable.
Section 362 of the bankruptcy law, a petition filed under the Bankruptcy Code
operates as a stay applicable to: (i) the commencement or continuation of a
judicial, administrative or other action or proceeding against the debtor that
was or could have been brought before the commencement of the bankruptcy case;
(ii) the enforcement against the debtor or against property for the estate of a
judgment obtained before the beginning of the bankruptcy case; and (iii) any
act to obtain possession of property of or from the estate or to exercise
control over property of the estate.
stay is not imposed
law, there are some additional exceptions to the automatic stay requirements of
the Bankruptcy Code. The filing of a bankruptcy petition does not operate as a
stay of the continuation of any eviction against a resident involving
residential property in which the debtor resides as a tenant under a lease when
the owner has obtained, before the date of the filing of the bankruptcy
petition, a judgment for possession of such property. A second
exception provides that the automatic stay does not apply to an eviction action
that seeks possession of the residential property in which a debtor resides as
a resident under a lease based on endangerment of such property or the illegal
use of controlled substances on such property, but only if the owner files with
the court, and serves upon the resident, a certification under penalty of
perjury that such an eviction action has been filed, or that the debtor, during
the 30-day period preceding the date of the filing of the certification, has
endangered property or illegally used or allowed the use of a controlled
substance on the property.
of rejection of the lease
under Chapter 7, an unexpired lease is automatically rejected (terminated) 60
days from the date of filing unless the lease is expressly assumed by the
resident. In Chapter 13 bankruptcies, the lease is not automatically rejected
until the court's confirmation of the debtor's reorganization plan, which could
take a long time. Notwithstanding the assumption or rejection of a lease, if
the resident fails to pay post-petition rent, you have the right to apply to
the court to lift the stay so you can evict the resident for nonpayment of
the stay to allow eviction
If one of
your residents files bankruptcy, don't panic. The Bankruptcy Code outlines a
procedure under which the stay can be lifted to allow you to proceed with the
eviction. At this point, you should have counsel representing your interest in
the bankruptcy court. Your counsel will need to file what is known as a motion
to lift stay. Under rules for the Southern District of Texas, prior to filing
the motion to lift stay, the party making the motion must attempt to contact
the debtor's counsel to discuss whether an agreement can be reached by using
the court's agreed order forms. If such an agreement can be reached, the
parties may submit a motion for entry of the agreed order without the expense
of preparing a motion for relief, the filing fee for a motion for relief, or
the expense of attending a hearing.
parties cannot reach an agreement, a motion to lift stay is necessary to obtain
a court order that would allow you to proceed with your eviction. Once the
motion is filed, the court will hold a hearing during which certain things must
be shown in order to lift the stay to proceed with the eviction. The bankruptcy
process to lift the stay usually takes about 30 to 45 days. The result of a
favorable ruling from the bankruptcy court is that an order lifting the stay
will be granted. That order can then be taken to the judge in the eviction
action and the eviction can proceed.
lifting the stay is not necessary
above, under the Bankruptcy Code, a stay is not imposed (and consequently, a
motion to lift the stay would not be necessary) to continue an eviction if the
owner has already obtained a judgment for possession against the resident. Under the
Bankruptcy Code, if a judgment is obtained prior to the filing of the
bankruptcy petition, the stay provisions would not apply and the owner should
be allowed to enforce the judgment by obtaining the writ of possession. Also, if you
are evicting the resident for endangering your property or illegally using
controlled substances on your property, you do not need to move to lift the
stay if you certify with the bankruptcy court that either (i) an eviction
action based on these defaults has been filed (before the filing of the bankruptcy
petition); or (ii) the endangerment to the property or the illegal use of
controlled substances occurred within 30 days prior to the date you file your
certification with the bankruptcy court. The 2005
amendments significantly changed bankruptcy law and may still need to be
explained to the judge in the eviction action, because he or she may still be
allowing eviction actions to proceed after a bankruptcy court lifting the stay
is obtained. Unless an exception to the stay provision applies, if a resident
files bankruptcy, the owner will have no choice but to have the stay lifted by
agreement or with a motion to lift the stay in the bankruptcy court and obtain
a court order lifting the stay prior to proceeding, or continuing, with the
eviction action. Keep in mind
that this applies to any estate, including, but not necessarily limited to,
filing liens and giving notices of lease violation or notices to vacate.
Caution should be taken to assure compliance with the bankruptcy provisions. By
being knowledgeable about this issue, you can avoid unnecessary problems.
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Are smoke alarms required in bedrooms?
apartment property needs to install single-station, battery-operated smoke
alarms (smoke detectors) in every bedroom that doesn’t already have one
by the end of 2011. Most properties built since the 1980s already have bedroom
smoke detectors, and new construction is required to have them installed,
interconnected and hard-wired with a battery backup. The retrofit provision requires
only the battery operated smoke alarms, with no hard wiring nor
interconnection. Install them anywhere on the bedroom ceiling at least four inches
from any wall, and not in front of an air conditioning vent. If the device is
listed for wall mounting, it can be mounted on a wall with the top of the
device not less than 4, nor more than 12 inches from the ceiling, and at least
4 inches from any corner wall junction.
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So no fire alarms are required?
While most garden-style apartment properties are exempt from the pull-station
fire alarm requirement, retrofit will be required in unsprinklered properties
with units that open into enclosed interior corridors. An open breezeway is not
an interior corridor. The system has to sound an audible alarm that reaches a
specific decibel range in each bedroom, but the system is not required to be
monitored. Installation is required by the end of 2012 or 2013, depending on
the size of the property. Contact your preferred HAA-member fire alarm company
or visit the HAA website for further details.
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Do I need to register my property under the Habitability Ordinance?
Every property in the city limits of Houston should now be registered under the
Habitability Ordinance. If you still need to register, or if you have any
question about your every-fourth-year habitability inspection, visit http://www.houstonmultifamily.org/ . Registration is free of charge, and helps make sure on-site employees cannot
be held personally liable for alleged code violations.
You are the eyes and ears of HAA! Let us know if your
property – especially those in smaller cities throughout the Houston area –
encounters a new inspection, a new fee, or any proposed change in your
relationship with local government. Contact us at firstname.lastname@example.org.
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I have just had a fire at my community, how do I reach the Red Cross for help?
Call 713-526-8300 and ask for disaster services.
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