I just completed a bench trial (trial by judge) in a lawsuit filed by a tenant who was locked out of an apartment for non-payment of rent. The suit arises not from the act of lockout itself, but the manner in which the landlord provided the tenant with notice of the lockout.
This particular lawsuit reinforced my long-held belief that sometimes the cure is worse than the disease.
In matters of residential tenancy, the law’s desire to impose fairness and balance in the landlord-tenant relationship undermines the wisdom of a landlord exercising the self-help rights afforded under law. Lockouts are one area where landlords must carefully analyze the cost-benefit-risk.
The Remedy of Lockout: To Exercise or Not? That is the Question
There is no doubt that the Texas Property Code allows lockout when rent is delinquent. Section 92.0081 states (in relevant part):
(b) A landlord may not intentionally prevent a tenant from entering the leased premises except by judicial process unless the exclusion results from:
(1) bona fide repairs, construction, or an emergency;
(2) removing the contents of premises abandoned by a tenant; or
(3) changing the door locks on the door to the tenant’s individual unit of a tenant who is delinquent in paying at least part of the rent.
Many residential leases also include clauses expressly permitting lockout.
Undoubtedly, lockouts can be a powerful tool to encourage tenant compliance with payment and other obligations. Likewise, the hassle, expense and embarrassment can disincentivize not only the defaulting tenant, but also our residents who witness the spectacle.
To have these positive effects — and not backfire — lockouts must be performed in strict compliance with the law. This includes the mandatory notice provisions both prior and subsequent to performing the physical act of lockout.
REQUIRED NOTICE FOR RESIDENTIAL LOCKOUT
Section 92.0081 requires both an advance notice of lockout (delivered prior to the actual lockout) AND a notice of actual locket (posted at the time the lockout occurs). Both notices must be sent or posted in manner prescribed by law.
These notices must contain very specific information, as specified in the statute:
- Advance Notice of Lockout – Section 92.0081(d)(3)
the landlord [must] locally mail [ ] not later than the fifth calendar day before the date on which the door locks are changed or hand-delivered to the tenant or posted on the inside of the main entry door of the tenant’s dwelling not later than the third calendar day before the date on which the door locks are changed a written notice stating:
(A) the earliest date that the landlord proposes to change the door locks;
(B) the amount of rent the tenant must pay to prevent changing of the door locks;
(C) the name and street address of the individual 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
(D) 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.
- Notice At Time of Actual Lockout – Section 92.0081(c)
If a landlord or a landlord’s agent changes the door lock of a tenant who is delinquent in paying rent, the landlord or the landlord’s agent must place a written notice on the tenant’s front door stating:
(1) an 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 a key delivered within two hours after calling the number;
(2) the fact that the landlord must provide the new key to the tenant at any hour, regardless of whether or not the tenant pays any of the delinquent rent; and
(3) the amount of rent and other charges for which the tenant is delinquent.
Limitations on WHEN the Actual Lockout May be Performed
Even when the landlord fully complies with the notice provisions stated above, there are certain days of the week when a lockout may not be performed. The off-limits schedule is a function of the business hours of the landlord’s on-site management office and/or the landlord’s availability to receive delinquent rent.
Section 92.0081(e) provides as follows:
A landlord may not change the locks on the door of a tenant’s dwelling under Subsection (b)(3) on a day, or on a day immediately before a day, on which the landlord or other designated individual is not available, or on which any on-site management office is not open, for the tenant to tender the delinquent rent.
Stated simply, the lockout cannot occur on a day or the day before an onsite management office is closed or a landlord is not available to meet the tenant and receive rent.
Failure to Comply with Notice Provisions Can Have Costly Consequences for the Landlord
A landlord who performs a lockout without furnishing the notices is subject to a tenant suit for damages and a civil penalty. This penalty can be stiff.
Section 92.0081(h) states:
If a landlord violates this section [Section 92.0081], the tenant may:
(1) either recover possession of the premises or terminate the lease; and
(2) 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.
A Tenant is Entitled to a Replacement Key — Even Without Paying Delinquent Rent
I consider Texas Property Code Section 92.0081(f) to be an absurd prion of the statute that undermines its efficacy. This Section states:
A landlord who intentionally prevents a tenant from entering the tenant’s dwelling [by exercising the right of lockout] must provide the tenant with a key to the changed lock on the dwelling without regard to whether the tenant pays the delinquent rent.
Yes, a non-paying tenant who has been locked out regains access under the law merely by asking for it. No payment is required.
What’s worse is that failing to provide a key — even when the request is not accompanied by payment of delinquent rent — can subject the landlord to a civil penalty equal to one month’s rent. See Texas Property Code Section 92.0081(i).
In my opinion, the risk-benefit analysis of Section 92.0081 strongly preponderates against lockout. There are far too many landlord pitfalls whose consequences outweigh any benefit of locking out the non-paying tenant. This is especially true since the law obligates a landlord to furnish the delinquent tenant with a key following lockout even in the absence of payment.
A prudent residential landlord will skip lockout, and proceed directly to issuing a notice to vacate and thereafter filing a forcible entry and detainer action to recover possession of the premises.