SAAA July/August Residence Magazine 2018 JULY_AUGUST_2018_Magazine | Page 30

LEGAL UPDATE i. ii. iii. iv. v. Be certain entries are accurate (this goes without saying); Do not charge the resident for any amount or fee that is not expressly based on a provision in the lease or an addendum to the lease, for instance, do not charge a “termination fee” or “lack of 60 day notice fee” in a move out statement unless you have a specific agreement to charge the fee – normally, the only fee available for a tenant who skips is the Reletting Fee and accelerated rent (with the accelerated rent being reduced by rent paid by a replacement tenant); Do not use the words “penalty” or “forfeiture” in your accounting or move out statement (penalties and forfeitures are generally not allowed under Texas law); Prior to filing an eviction, be certain that your ledger is absolutely correct regarding the amount of rent due at the time of filing; Do not rely solely on your accounting program to accurately complete a Move Out Statement; every Move Out Statement should be reviewed for accuracy prior to it being delivered to your former tenant. Conclusion: Until there the Texas Legislature makes changes in the Texas Finance Code to more closely mirror the Federal Fair Debt Collection Practices Act, you will increasingly become a target of tenants and tenant lawyers for mistakes in evictions and tenant accounts; you also risk waiving rent owed by the tenant when you are not diligent in your eviction practice. As one tenant advocate from Austin recently stated, "Late fee litigation and debt collection litigation are the trends that landlords in Texas should expect.” As with any new trend, expect the internet to light up with information by tenants and for tenants regarding landlord accounting practices. For any questions you have regarding avoidance of mistakes in evictions and accounting, you should contact your counsel; and don’t waive rents due because of improper eviction practices or be the next target of a wrongful debt collection letter or lawsuit. R. David Fritsche is an attorney with The Law Offices of R. David Fritsche, General Counsel to the San Antonio Apartment Association, and engages in the practice of landlord/tenant law and civil litigation. He can be reached at (210) 227-2726, facsimile (210) 227-5550. Page 5 30 July/August 2018 | www.saaaonline.org