Texas Lockouts: Do Them Right and Avoid a Tenant Tangle
By Karen L. Hart, Esq.
Texas landlords have a unique statutory right to lockout their commercial tenants who are delinquent in paying rent. Other jurisdictions, such as California, do not allow landlords this legal luxury, and often require formal eviction proceedings in court. Texas landlords, however, need to be sure they are posting the required lockout notices to avoid tangling with their tenants in court. In Texas, failing to post the required statutory lockout notice can result in:
- Procedural maneuvering and increased attorneys’ fees;
- Termination of the lease and the loss of future rent; and/or
- A claim for damages, attorneys' fees, and court costs asserted against the landlord.
Pursuant to the Texas property code, when a commercial tenant is in default for failing to pay rent, a landlord in Texas can change the locks at the leased premises and lockout the tenant. Tex. Prop. Code § 93.002(c)(3). However, written notice must be posted on the tenant's front door stating the name and address or telephone number of the individual or company from which a new key may be obtained. Tex. Prop. Code § 93.002(f). A new key is only required to be provided during the tenant's regular business hours and only if the tenant pays. Id.
Before taking steps to lockout a tenant, always read the written lease for any additional or different contractual requirements or conditions.
Under Texas law, if a landlord fails to post the statutorily required notice and wrongfully locks a commercial tenant out of the leased premises, a tenant may:
- Recover possession of the premises through an ex parte reentry proceeding; or
- Terminate the lease; and
- Recover damages and attorneys’ fees against the landlord.
Tex. Prop. Code §§ 93.002(G); 93.003.
Failing to provide the required statutory notice can result in procedural wrangling and increased costs for a landlord. With an ex parte writ of reentry proceeding, a tenant can force their way back into a space without prior notice. To have the tenant removed from the premises will then typically require a final hearing on the tenant’s reentry claims, which means more headaches and fees. If a tenant terminates a lease in the face of a wrongful lockout, the tenant may escape liability for potentially significant future rent due under the lease, reducing the landlord’s ultimate damages claim against the tenant. Further, a tenant, at the very least, will have a colorable offset to the landlord’s rent claim with their own claim for damages, such as lost profits, resulting from the alleged wrongful lockout, in addition to the tenant's attorneys' fees and court costs.
Locking out commercial tenants is a powerful procedure for Texas landlords.
They just need to be sure to do it right.
About the Author:
Karen L. Hart is a partner at Bell Nunnally & Martin LLP. Karen provides counseling to her clients in areas of commercial litigation, landlord-tenant and real estate issues, and creditors' rights.
Karen has nearly a decade of experience in litigating complex commercial disputes, lease disputes, commercial evictions, specific performance claims, business tort cases, general business contract, and payment disputes. She has been featured in Texas Monthly Super Lawyers® as a Rising Star® in 2006, 2007, and 2011.
Karen is a regular presenter for Sterling, including Landlord-Tenant Law in May 2012 and Commercial Landlord Tenant Law & Lease Negotiations in September 2011.