The Common Law

Landlord & tenant issues specific terms in the lease

Are "late rent" penalties enforceable?

Yes, if there is a late rent (also known as "late fee") provision in the lease agreement. In many cases, a lease will require a tenant to pay an additional late fee if the rent is paid after the due date and any additional grace period. This is allowable under Texas law, even though there is no statute in Texas that specifically addresses late fees. Late fees are normally in the $30-40 range for typical residential leases. A tenant could try to challenge a late fee that is extremely excessive (sometimes referred to as "unconscionable"), but it is uncertain how a court would view the high fees. Be sure to read your lease carefully before signing it so that you understand what penalties will apply if your rent payment is late.

My lease says my landlord cannot deduct "normal wear and tear" from my security deposit. What is "normal wear and tear"?

Residential leases generally include a clause that allows the tenant to avoid responsibility for damages to the rental property if the damage can be considered "normal or reasonable wear and tear." Texas law defines "normal wear and tear" as deterioration that results from the intended use of a dwelling, including breaking or malfunction due to age or deteriorated condition. Alternatively, "normal wear and tear" does not include deterioration to the rental property that results from negligence, carelessness, accident, or abuse of the premises by the tenant.

From a practical standpoint, this means that the tenant will not be responsible for things that wear out do to normal and expected usage but will be liable for a negligent or careless act that causes damage. For example, a tenant should not be responsible for paying to replace a living room carpet that has become worn due to normal traffic. But, the same tenant could be responsible for paying to replace the carpet if the tenant caused it unnecessary permanent damage (i.e.: insert any number of possibilities like spilling paint on the carpet, tearing the carpet while moving furniture, etc.).

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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