On March 26, 2020 the Austin City Council passed an emergency ordinance delaying eviction cases by requiring landlords to provide “impacted tenants”—both residential and commercial—with a minimum 60-day notice to cure before filing an eviction lawsuit.
This new ordinance comes just two weeks after Travis County postponed all eviction hearings until after May 8, 2020 and all writs of possession until May 13, 2020—initial orders that will likely be extended as the coronavirus outbreak continues.
The ordinance states:
Part 4. Requirements
- A landlord shall give a tenant a notice of proposed eviction prior to giving an impacted tenant a notice to vacate.
- A notice of proposed eviction must be in writing and shall include the following:
- a right for the impacted tenant to respond, which includes curing any delinquent payments, and:
- the time period to respond (which must be a minimum of 60 days).
- A notice of proposed eviction must be provided to an impacted tenant in a manner that is authorized by Texas Property Code 24.005 for a notice to vacate (i.e., personal delivery, posting on inside of main entrance door, sending by certified mail).
An “impacted tenant” is specifically defined as:
A person (including a business), or a member of their household, who is authorized by a lease to occupy property to the exclusion of others and loses wages, revenue, or income during the local disaster.
Importantly, for the purposes of the ordinance, a person means an individual, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity (but does not include the City of Austin).
This definition is critical to whether the extra notice is required and is broader than what might appear at first glance. A tenant does not need to lose “wages, revenue, or income” because of the coronavirus outbreak. A residential or commercial tenant qualifies if they lose income for any reason during the local disaster, which will last as long the Austin City Council deems it necessary.
This Notice of Proposed Eviction must be served before a three-day notice to vacate as required by Section 24.005 of the Texas Property Code. The ordinance would only apply to tenants who became delinquent on or after the effective date of the ordinance and is scheduled to end on May 8. The ordinance as written would not apply to tenants who became delinquent before the ordinance passes even if they lost wages or revenue as a result of the pandemic.
The penalty for landlords who do not comply with this ordinance is a Class C misdemeanor, punishable by a fine up to $500. There is no required mental state. In other words, it does not matter if the landlord was aware of the new requirements before proceeding with an eviction under the normal procedures.
The ordinance does not state that the Notice of Proposed Eviction is an essential element of a forcible detainer claim necessary for judgment, but it seems likely the local justice courts will see it that way and dismiss eviction cases if the new notice requirements are not fulfilled for applicable “impacted tenants.”