The difference between commercial and residential tenancies is that Commercial rental property is not covered by the Chapter 92. Texas Property Code Ann. §93.001(b). A commercial landlord or landlord’s agent can only interrupt a utility service paid for the the utility company by a tenant unless results from bonafide repairs, construction, or an emergency. If a commercial landlord or landlord’s agent violates Tex. Prop. Code Ann. §93.002 against interpretation of utilities, elimination of property, or omission of a tenant, a commercial tenant may do one of the following:
- Recover ownership of the premises or cancel the lease
- Retrieve the amount of the tenant’s actual damages from the landlord
In the case of a landlord who has kicked a commercial tenant out of a leased premises in violation of the Texas Property Code, the tenant can redeem possession of the premises via a statutory writ of possession procedure. The tenant must file with the justice of the court and orally state under oath what happened with the illegitimate lockout. If the judge believes an unlawful lockout has indeed happened, the justice can issue a writ of reentry that gives the tenant immediate and temporary guardianship of the possession.
The landlord may then hold a hearing based on the tenant’s complaint for reentry. The hearing must take place no earlier than the first day and no later than the seventh day after the landlord requests the hearing. If the landlord fails to do so, he or she is responsible for court costs.
If one fails to comply in a timely manner with the writ of reentry, disobedience of its grounds will be filed against the landlord or the person to whom the writ was served. Granted that a person directly or indirectly disobeyed the writ of reentry, he or she can be summoned to jail without bail. In the case of bad faith complaints, the landlord may recover from the tenant’s damages, as well as attorney fees and court costs.
The justice may suspend payment of the tenant’s filing fees and service costs for the sworn complaint for the reentry and writ of reentry. Court cases can be waived, but only if the tenant executes a pauper’s affidavit. A landlord has the power to remove and store any of the tenant’s property that remains on premises.
A landlord does not have the authority to ban a commercial tenant from entering the leased premises unless:
- Making bona fide repairs or construction, or if there is an emergency
- Removing the contents of a premises abandoned by a tenant
- Changing door locks on a tenant who failed to pay rent
The Texas Supreme Court recognizes an implied warranty of suitability by the landlord in a commercial lease that the premises are suitable for their intended commercial purpose. The implied warranty of suitability may be contractually waived where the lease expressly disclaims that warranty, such as with the use of an “as-is” clause. The whole purpose of a breach of the implied warranty of suitability in commercial leases is usually a question of fact to be determined from the particular circumstances of each case. The implied warranty of suitability covers latent defects in the nature of a physical or structural defect which the landlord has the duty to repair. Tex. Prop. Code Ann. §93.012(a) states that a commercial landlord may not assess a charge, other than for rent or physical damage to the leased premises, or an amendment to the lease.
Contact The Farah Law Firm if you need help with your commercial tenancy. Our experienced real estate attorneys will be with you every step of the way.