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Enforcing the Landlord’s Lien

How do you enforce the lien?

The landlord may seek the benefit of any statutory or contractual liens available to secure payment of rent when a petition to recover rent is filed. A contractual lien may provide a self-help remedy such as seizure and sale, or it may be foreclosed judicially. If the lease provides the landlord with a self-help remedy, the landlord need not resort to judicial procedures. However, the landlord may not take possession of the tenant’s property and hold it indefinitely without sale, credit, or payment of any surplus of the  value of the seized property over the rent due. Whether the landlord’s lien is foreclosed through a self-help remedy or through judicial procedures, the tenant is entitled to have the sale proceeds or the value of  the property credited against the rent arrearage and to receive any surplus. Additionally, a contractual lien is subject to the provisions of Article 9 of the Uniform Commercial Code. Sale of the seized property must occur within a  commercially reasonable time or the landlord will be liable to the tenant for conversion of the entire value of the property. Moreover, no lien of an operator of residential property may extend to the tenant’s personal property declared exempt by the landlord’s lien statute. However, the general exemption from execution that applies to personal property does not prevent seizure by a  secured creditor with a contractual landlord’s lien or other security in the property to be seized.

A residential landlord or the landlord’s agent may seize nonexempt property under the statutory landlord’s lien if the seizure is authorized by a written lease and can be accomplished without a breach of the peace. Immediately after seizing property under the lien, the landlord or agent must leave, in a conspicuous place within the dwelling, a written notice of entry and an itemized list of the items removed. The notice must  state: (1) the amount of delinquent rent; (2) the name, address, and telephone number of the person the tenant may contact regarding the amount owed; and (3) that the property seized will be promptly returned on full payment of the delinquent rent.

If the tenant has abandoned the premises, the landlord or the  landlord’s agent may remove its contents. It appears that the restrictions in subsections (a) through (c) of Section 54.044 do not apply when the tenant has abandoned the premises.  Therefore, the landlord may remove the contents, exempt and nonexempt  property alike, whether or not the lease authorizes the seizure of property, and without posting any notice of entry or list of items removed. On the other hand, the rules in Section 54.045 governing the sale of seized property, discussed below, apparently do apply to property seized under subsection (d).

Unless authorized in a written lease, the landlord is not entitled to collect a charge for packing, removing, or storing property seized under the  lien.

Property seized under a residential landlord’s lien and the written lease pursuant to Section 54.044 of the Property Code may not be sold or  otherwise disposed of unless the sale or disposition is authorized in the written lease.

Moreover, before selling seized property, the landlord or the landlord’s agent must give notice to the tenant no later than the 30th day before the date of the sale. The notice must be sent to the tenant by both first class mail and certified mail, return receipt requested, at the tenant’s last known address. The notice must contain the following matters:

  • The date, time, and place of the sale.
  • An itemized account of the amount owed by the tenant  to the landlord.
  • The name, address, and telephone number of the person the tenant may contact regarding the sale.
  • The amount owed.
  • The right of the tenant to redeem the property. The tenant may redeem the property at any time before the property is sold by paying to the  landlord or the landlord’s agent all delinquent rents and, if authorized in the written lease, all reasonable packing, moving, storage, and sale costs.

The property must be sold to the highest cash bidder. Proceeds  from the sale must be applied first to delinquent rents and, if authorized by the  written lease, reasonable packing, moving, storage, and sale costs. Any sale proceeds remaining after payment of the rents and costs must be mailed to the tenant at the tenant’s last known address no later than the 30th day after the date of the sale. The landlord must provide the tenant with an accounting of all proceeds of the sale no later than the 30th day after the date on which the tenant makes a written request for the accounting.

A sale under Section 54.045 is subject to any recorded chattel mortgage or financing statement.

If a landlord or the landlord’s agent willfully violates these provisions governing residential landlord’s liens, the tenant is entitled to: (1) actual damages; (2) return of any property seized that has not been sold; (3) return of the proceeds of any sale of seized property; and (4) one month’s rent or $500, whichever is greater. The money awarded to the tenant must be decreased by any amount for which the tenant is liable. In addition, the tenant is entitled to reasonable attorney’s fees.

 

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