Last Updated: March 31 at 4:48 p.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)?
Yes, the Texas Supreme Court has suspended all proceedings and deadlines for residential evictions through April 19, 2020, with an exception for certain residential evictions involving an imminent threat of criminal activity or physical harm. The court has also prohibited writs of possession from being posted or executed through April 26, 2020. While this emergency order allows Texas courts to continue accepting new eviction filings, the CARES Act—passed by the federal government—prohibits landlords of certain residential properties 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. Importantly, many residential properties (but not all) will be covered by both the CARES Act and the Texas Supreme Court order.
Furthermore, 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.
THE CARES ACT & RESIDENTIAL TENANTS
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.
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. (See above FAQ: “Which properties are covered by the temporary moratorium on eviction filings and late fees under the CARES Act?”)
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 has suspended all proceedings and deadlines for residential evictions in Texas through April 19, 2020, with exceptions for certain situations involving an imminent threat of criminal activity or physical harm. 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 suspended all proceedings and deadlines for residential evictions in Texas through April 19, 2020, but has allowed courts to continue accepting new eviction filings during this time. Due to the CARES Act, however, landlords of certain properties will nonetheless not be able to file evictions for nonpayment of rent or other amounts due under the lease through July 24, 2020.
(See above FAQ: “Which properties are covered by the temporary moratorium on eviction filings and late fees under the CARES Act?”)
Absent an updated or new order by the Texas Supreme Court, or an action taken by local government to further limit evictions, Texas courts will be able to move forward with proceedings and deadlines for residential evictions beginning April 20, 2020. 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.