Never a dull moment

Interesting property-management questions received by the Texas Association of REALTORS® Legal Hotline.

Think you have problems with your tenants? Here are some tough situations that your fellow REALTORS® are facing. These questions come from actual calls taken by the Legal Hotline. To see more real-world questions and answers about other legal issues, visit the Legal FAQs in the Legal Tools section of TexasRealtors.com.

A prospective tenant wants to lease a property that I manage. The prospect owns a pit bull. May I refuse to lease to the tenant, who is otherwise qualified? If I do lease the property to him, what type of precautions should I take?

A landlord may refuse to lease properties to persons who own animals or who own certain types of animals (for example, pit bulls). The landlord must be careful to consistently enforce such a policy.

The issue of a dangerous pet or animal on a property can impose liability issues both for the tenant and the landlord. There have been a few reported cases in which dogs, which allegedly had viscous propensities, bit neighbors, including children. The liability in such cases typically turns on the issue of control. Which party—landlord, tenant, or both—exercised control over the property and pet? Clearly, the tenant may be liable, as he exercises control over the pet and the property. Many times, however, landlords retain certain rights to enter the property and exercise some degree of control, although minimal.

Briefly, the liability issue for the landlord may depend on what the landlord knew related to the pet’s history and propensities, any requirements the landlord imposed on the tenant related to the pet, and what the landlord knew of the tenant’s care of the pet. In situations where the landlord is contemplating leasing to a tenant who has a dangerous pet, the landlord is well-advised to seek the advice of counsel to draft a specific addendum to the lease to address issues such as containment requirements, signage, locks,
and insurance.


May I refuse to lease to a smoker?

Yes. Smokers are not a protected class. Any such policy should be consistently applied.

I was managing a property, and the owner terminated the management agreement effective today. A tenant in the property previously notified us that he will not renew the lease. The lease ends 30 days from today. I have the security deposit in my trust account. What do I do with the security deposit?

The security deposit is a deposit given by the tenant to the landlord as security for the tenant’s performance under the lease. The landlord must account to the tenant for the deposit at the end of the lease. Under most property-management agreements, the property manager holds the security deposit during the lease term on behalf of the landlord and accounts to the tenant for the landlord at the end of the lease term. Since you are no longer the landlord’s agent, you should forward the security deposit to the landlord and remind him he has a duty to account for the deposit when the tenant vacates the property.

You should send written notice to the tenant advising him that you are no longer the agent for the landlord, that you tendered the security deposit to the landlord, and that the landlord is responsible to account to the tenant for the security deposit.

Alternatively, you and the landlord may agree that you will continue to hold the money and account for the security deposit, but such an arrangement should be stated in writing and be specific as to the parties’ responsibilities, such as who will inspect the property for damage upon move-out and who will make determinations about any deductions.

A prospective tenant, disabled and in a wheelchair, wants to lease a 50-year-old house that I manage. He wants to install grab bars in the bathroom, build a ramp to the front door, and widen two bathroom doors too narrow for a wheelchair. My landlord isn’t eager to permit any modifications but understands that he may be required to accommodate the prospect. Must he permit the modifications? Who pays? Can the landlord require restoration upon move-out?

To avoid any allegations of discriminatory conduct, the landlord must reasonably accommodate the prospect. The landlord must permit the accommodations described in this question, because they’re reasonable. The parties should agree, in the lease, who will arrange for the modifications, who will make decisions regarding workmen and materials, and who will pay for the modifications.

For example, the lease may provide that the tenant will pay the cost either directly to any contractor or by reimbursement to the landlord; or the lease may provide that the landlord will make the modifications in exchange for a concession such as an increase in the rent based on the cost of the modifications. The parties may also agree whether the property will be restored upon move-out. However, any required restoration must be reasonable. A test for reasonableness in a restoration question is whether an ordinary subsequent tenant would be affected by the modifications. For example, the removal of the grab bars in the bath may be a reasonable requirement and may include costs to retile or fill any holes. But the requirement to remove only one grab bar that does not impede the use by an ordinary person or detract from the appearance of the bath may not necessarily be reasonable. The restoration of wider doors to more narrow doors is likely not to be reasonable if the doors were increased from 24-inch widths to 30-inch widths, or something similar. A requirement to remove the ramp is reasonable. The lease should also address the cost of any restoration in a similar manner as it addresses the cost of the modifications.

A tenant moved in and now says that the house is haunted. She wants to vacate. What is the best way to address the issue?

Inform her that she may be in breach of the lease if she vacates. Tell her that the landlord may exercise his default remedies under the lease. (The landlord must employ reasonable measures to mitigate any loss.) You might try to determine why she believes the house is haunted and see if there is a reasonable explanation for any mysterious circumstances. Also, ask the tenant to provide written explanations and requests for your records.

Photo © Elektravision.

home   current issue    top 10    resources 

discussions   contact us   search

Buyers & sellers, visit www.texasrealestate.com.
REALTORS®, visit www.texasrealtors.com.