Last Updated: May 27 at 11:06 a.m.

Is there a form to use with tenants who are having trouble paying the rent due to COVID-19 issues?

Texas REALTORS® has created the COVID-19 Lease Payment Plan Agreement (TXR 2227). This form is intended to be used with tenants who are facing financial difficulties directly linked to COVID-19. This form enables the tenant and landlord temporary flexibility for paying rent and other sums.

What information can I share with tenants and landlords about COVID-19 issues?

To help your tenants and landlords understand how COVID-19 affects their leases and rental properties, Texas REALTORS® has developed two fliers: one to share with your tenants and one to share with your landlords.

Can residential tenants refuse to allow access to property due to fear of contracting COVID-19?

No. Subparagraph B of Paragraph 14 of the Residential Lease (TXR 2001) and Residential Lease for Multi-family Property Unit (TXR 2011) states that landlords or anyone authorized by landlords will first attempt to contact the tenant before accessing the property, but may enter the property at reasonable times without notice to make repairs or to show the property to prospective tenants or buyers, inspectors, fire marshals, lenders, appraisers, or insurance agents. Subparagraph C allows landlords to charge a fee if a tenant refuses access or fails to make the property accessible.

However, to ensure health and safety and to reduce property owners’ potential liability, landlords or property managers may want to screen those wishing to view the property for coronavirus exposure. If implementing a screening process, remember to adhere to fair housing guidelines, which dictate that landlords and property managers may not discriminate against anyone based on race, color, national origin, religion, sex, familial status or disability. Property managers should also encourage property owners to speak to their own risk advisors or attorneys on these matters related to COVID-19.

Can a tenant request an accommodation to not allow viewings under the ADA and Fair Housing Act requirements if the tenant is a member of the community at higher risk of developing severe illness due to COVID-19 exposure?

Possibly. A previously diagnosed compromised immune system could be considered a disability for FHA purposes. A reasonable accommodation in the rules, practices, or services may be requested to afford the person equal opportunity to use and enjoy a dwelling. A property owner must grant a tenant’s request for a reasonable accommodation unless the request is: 1) unduly burdensome, a fundamental alteration of the landlord’s program, or there is another accommodation that is just as reasonable; or 2) the tenant poses a direct threat to the health or safety of other residents or when the tenancy would result in substantial physical damage to the property of others. There may be other reasonable accommodations available to the tenant, such as screening a prospect for coronavirus exposure or implementing cleaning protocols after the prospect has viewed the property. Questions about a specific request should be directed to the property owner’s attorney.

As a property manager, what should I do if a tenant in a building I manage is diagnosed with COVID-19?

Under current laws and regulations, a tenant is not required to inform the landlord of an affirmative COVID-19 diagnosis. Property managers or landlords should consult the CDC website for recommendations to create written protocols and procedures that include how to deal with an outbreak and prevent the spread of the virus in the building, as well as recommended communications to tenants. If you are notified that a tenant has received a positive diagnosis, you should communicate with the tenant to ascertain what prevention measures that tenant is taking and whether additional communications to other tenants are necessary. Keep all communications confidential to make sure you are complying with your health-related confidentiality obligations (such as the ADA).

Have residential evictions been put on hold statewide due to the coronavirus (COVID-19)?

The latest Texas Supreme Court Order allows residential eviction proceedings to resume on May 19, and writs of possession to be posted on properties beginning May 26. Although residential evictions may resume on May 19, the Texas Supreme Court now requires a sworn statement that the property is not subject to the moratorium on evictions imposed by the CARES Act for eviction proceedings filed from March 27, 2020, through July 25, 2020. The CARES Act—passed by the federal government—prohibits landlords of properties that participate in covered housing programs or the rural housing voucher program or have a federally backed mortgage loan or a federally backed multifamily mortgage loan from making such filings from March 27, 2020, through July 24, 2020, if the eviction is based on nonpayment of rent or other amounts due under the lease. It is unclear at this time how courts will handle an eviction petition based on reasons that are not associated with nonpayment of fees if the petition includes with a sworn statement that the property is subject to the CARES Act.

Also, local governments may take action to limit evictions that goes beyond the actions taken by the Texas Supreme Court and the CARES Act. Therefore, it is important for property managers to continue to monitor actions taken by cities and counties relating to evictions.

Can a residential tenant terminate an executed lease due to COVID-19?

No. The lease provides that unless otherwise provided by law, the tenant is not entitled to early termination due to voluntary or involuntary job or school transfer, changes in marital status, loss of employment, loss of co-tenants, changes in health, purchase of property, or death. No laws are currently in place that allow a tenant to terminate early due to COVID-19 related reasons. Tenants are encouraged to consult with an attorney if they want to proceed with terminating.

Have commercial evictions been put on hold statewide due to COVID-19?

No. However, the Texas Supreme Court and the Court of Appeals issued an order that allows all Texas courts to modify or suspend any and all deadlines and procedures for a period ending no later than 30 days after the governor’s state of disaster has been lifted. Therefore, the local orders issued at the city and county level may put holds on all evictions—residential and commercial. Texas REALTORS® advises its members to continue to monitor developments on evictions at the city and county level, encourage clients to review the applicable local orders for information regarding commercial evictions, and recommend clients contact their local court to determine if it is allowing filings at this time.

Under the CARES Act, if the lease is going to expire and the landlord gives a tenant a notice of nonrenewal, is that a separate issue not covered under the eviction moratorium?

The eviction moratorium established by the CARES Act applies to nonpayment of rent or other charges. You can still give a tenant a Notice of Landlord’s Intent Not To Renew (TXR 2217) when the lease is about to end. However, the Texas Supreme Court now requires a sworn statement that the property is not subject to the moratorium on evictions imposed by the CARES Act for eviction proceedings filed from March 27, 2020, through July 25, 2020. It is unclear at this time how courts will handle an eviction petition based on reasons that are not associated with nonpayment of fees if the petition includes with a sworn statement that the property is subject to the CARES Act.

The tenant will still be responsible for fees not paid under the lease. Under the Texas REALTORS® lease, a holdover tenant will be responsible for three times the monthly rent, calculated on a daily basis, and that amount will be immediately due and payable daily.
Keep in mind that local orders may be more restrictive than the CARES Act and the Texas Supreme Court’s order, so continue to monitor actions taken by cities and counties relating to evictions.

THE CARES ACT & RESIDENTIAL TENANTS

Download Late Fees & the CARES Act PDF

How does the CARES Act impact evictions and late fees for residential tenants?

For certain properties, the CARES Act establishes a moratorium through July 24, 2020, that prohibits a landlord from:

  • Filing evictions for nonpayment of rent or other amounts due under the lease
  • Charging late fees, penalties, or other charges related to nonpayment of rent.

Additionally, a landlord of such properties must provide at least a 30-day notice to vacate—issued after this period expires—before the landlord may require the tenant to vacate the property.

This means that the earliest that a tenant in a covered property could be required to leave the property for nonpayment of rent or other amounts due under the lease would be August 24, 2020 (i.e., the deadline to vacate if a landlord provides the tenant a 30-day notice to vacate on July 25, 2020).

Which properties are subject to the temporary moratorium on eviction filings and late fees under the CARES Act?

The temporary moratorium on eviction filings and late fees under the CARES Act applies to a property occupied by a tenant pursuant to a residential lease if the property participates in a covered housing program or the rural housing voucher program or has a federally backed mortgage loan or a federally backed multifamily mortgage loan.

Specifically, this includes rental housing supported by the following federal housing programs:

  • Public housing
  • Section 8 Housing Choice Vouchers
  • Section 8 Project-Based Rental Assistance
  • Section 202 Supportive Housing for the Elderly
  • Section 811 Supportive Housing for Persons with Disabilities
  • Housing Opportunities for Persons With AIDS (HOPWA)
  • McKinney-Vento Homeless Assistance grants
  • Section 236 Preservation program
  • HOME investment partnerships
  • Rural Development multifamily housing (Section 516 Farm Labor Housing Grants, Section 542 Rural Development Vouchers, Section 521 Rural Rental Assistance, Section 533 Housing Preservation grants)
  • Low Income Housing Tax Credit (LIHTC) program.

It also includes rental housing with a single-family or multifamily mortgage that is:

  • purchased or securitized by Fannie Mae or Freddie Mac
  • insured by the Federal Housing Administration (FHA)
  • guaranteed, directly provided by, or insured by the Department of Veterans Affairs (VA)
  • guaranteed, directly provided by, or insured by the Department of Agriculture (USDA)
  • guaranteed under HUD’s Native American or Native Hawaiian Home Loan Guarantee programs.

Some landlords will know that their home is included because they recognize the name of a federal housing program on the list above that they had to apply and qualify for. However, many landlords of 1-4 residential properties may not realize that their property has a federally backed mortgage, because even if a landlord obtained a loan from a bank or credit union and makes payments to a mortgage company that does not appear to be related to the government, the loan may have been sold shortly after closing to Freddie Mac or Fannie Mae. A landlord can use the the Freddie Mac or Fannie Mae look-up tools to determine if either of these government-sponsored enterprises now own their loan. (Property managers should note that these loan searches can only be conducted by or with permission from the borrower.) Other look-up tools have been provided by the National Preservation Database (affordable housing only) and the National Low Income Housing Coalition (multifamily only). Taken together, these four websites include most, but not necessarily all, of the properties covered by the CARES Act.

For a tenant in a covered property, is the tenant required to provide any proof of financial hardship due to COVID-19 for the temporary moratorium on evictions to apply?

No, the moratorium through July 24, 2020, on filing evictions for nonpayment of rent or other amounts due under the lease is not conditioned on the proof of (or even the existence of) financial hardship due to COVID-19. Rather, the moratorium applies based on the characteristics of the property.

Does the CARES Act impact evictions that are not based on nonpayment of rent or other amounts due under the lease?

No, the temporary moratorium on eviction filings under the CARES Act only impacts evictions that are based on nonpayment of rent or other amounts due under the lease. For instance, if a tenant has a pet that is not authorized under the lease, the CARES Act does not prohibit the landlord from filing for an eviction on that basis at any time.

However, the Texas Supreme Court now requires the landlord to file a sworn statement that the property is not subject to the moratorium on evictions imposed by the CARES Act for eviction proceedings filed from March 27, 2020, through July 25, 2020. It is unclear at this time how courts will handle an eviction petition based on reasons that are not associated with nonpayment of fees if the petition includes with a sworn statement that the property is subject to the CARES Act.

Additionally, some local governments have taken action to limit evictions that goes beyond the actions taken by the CARES Act and the Texas Supreme Court. Therefore, while the CARES Act may not prohibit a landlord from filing a particular eviction, the eviction may nevertheless be placed on hold or restricted due to other legal authority.

How is the order on residential evictions issued by the Texas Supreme Court impacted by the CARES Act?

The Texas Supreme Court has lifted the eviction suspension, allowing evictions proceedings to resume on May 19, with eviction notices and warnings allowed to be posted on properties beginning May 26. Although residential evictions may resume on May 19, the Texas Supreme Court now requires that the landlord file a sworn statement that the property is not subject to the moratorium on evictions imposed by the CARES Act for eviction proceedings filed from March 27, 2020, through July 25, 2020. Though the CARES Act prohibits landlords of certain residential properties from making filings based on nonpayment of fees due under the lease, it is unclear at this time how courts will handle an eviction petition based on other reasons if the petition includes a sworn statement that the property is subject to the CARES Act.

For the lifting of this suspension to impact properties covered by the CARES Act, the eviction suit would have had to be filed before March 27, 2020, which is the date the CARES Act was enacted.

Can a local government take action to limit evictions beyond the restrictions put in place by the CARES Act and the Texas Supreme Court?

Yes. Therefore, it is important for property managers to continue to monitor actions taken by cities and counties relating to evictions.