Council to consider giving renters 60 extra days to resolve delinquent rent

by Ben OlivoMay 11, 2020
For rent sign in Government Hill taken January 2020.
Heron file photo

This Thursday, the City Council is scheduled to consider an ordinance by District 1 Councilman Roberto Treviño that would give renters impacted by the novel coronavirus an extra 60 days to pay overdue rent.

However, several clues suggest not everyone is on board with the proposed ordinance, including city officials and at least one council member. Real estate groups certainly don't agree, mainly the San Antonio Apartment Association and the San Antonio Board of Realtors, who say Treviño's plan would expose the city to lawsuits from individual landlords.

If passed, Treviño's ordinance, which is similar to ones passed recently in Austin and Dallas, would require landlords to provide what's called a "notice of proposed eviction" before they can issue a "notice to vacate," the first step in the eviction process outlined in the Texas Property Code. The statute would apply to renters delinquent on payments from March 19 to June 15, and would expire two months later on Aug. 14.

"Essentially, the proposed ordinance adds 60 days to the standard eviction timeline," City Attorney Andy Segovia said in a statement to the Heron, adding that it wouldn't absolve a tenant of their debt.

The notice of proposed eviction simply buys renters who are struggling with work during the pandemic more time to gather their unemployment benefits, to receive their stimulus check (because not everyone has), to find work, etc., while keeping them sheltered, Treviño said.

City officials estimate half of San Antonio's rental properties—about 130,000—are protected from eviction under the CARES Act through July 24, because they received federal funding. At last week's City Council meeting, Treviño said his proposal complements the CARES Act.

"How can we not follow the point the federal government is making, which is protecting so much in the community, knowing we have a big gaping hole once again?," Treviño said.

The San Antonio Apartment Association, which argues there are no protections for landlords who do not pay their mortgages and other expenses associated with a property, said tenants who face unemployment or reduced hours during the crisis should work out a payment plan with their landlord.

"If they communicate with their landlord, they can get the time that they need," said Teri Bilby, the apartment association's executive director. "We're seeing everywhere that landlords are working with their residents to have payment plans."

Bilby and other landlords have said repeatedly they don't want to evict for reasons that include time and money.

She continued, "Most tenants are wanting to fulfill their obligation, and they are doing what they need to do to make payments ... the problem is there are folks out there (who will) see this as a reason to not pay rent at all."

The Apartment Association points to the dwindling number of eviction cases filed since the outbreak started as proof most landlords are working with tenants. The week of April 27, there were 26 evictions filed in Bexar County; two months before, the week of Feb. 24, there were 433; according to Justice of the Peace records.

The number of eviction filings per week at the Justice of the Peace precincts has dramatically decreased since February.
» Week of Feb. 3 — 57
» Feb. 10 — 125
» Feb. 17 — 128
» Feb. 24 — 81
» March 2 — 40
» March 9 — 78
» March 16 — 29
» March 23 — 6
» March 30 — 0
» April 6 — 0
» April 13 — 1
» April 20 — 10
» April 27 — 6
» Feb. 3 — 74
» Feb. 10 — 141
» Feb. 17 — 138
» Feb. 24 — 144
» March 2 — 53
» March 9 — 120
» March 16 — 56
» March 23 — 31
» March 30 — 45
» April 6 — 3
» April 13 — 5
» April 20 — 6
» April 27 — 9
» Feb. 3 — 22
» Feb. 10 — 128
» Feb. 17 — 148
» Feb. 24 — 83
» March 2 — 24
» March 9 — 45
» March 16 — 43
» March 23 — 11
» March 30 — 4
» April 6 — 0
» April 13 — 2
» April 20 — 4
» April 27 — 4
» Feb. 3 — 80
» Feb. 10 — 148
» Feb. 17 — 118
» Feb. 24 — 125
» March 2 — 39
» March 9 — 43
» March 16 — 42
» March 23 — 5
» March 30 — 22
» April 6 — 9
» April 13 — 0
» April 20 — 18
» April 27 — 7
Source: Bexar County Justice of the Peace

The Texas Supreme Court's moratorium for noncriminal evictions lasts through May 18; in Bexar County, eviction court has been suspended until June 1, though landlords can still file eviction lawsuits.

The Apartment Association has also asked its members, which represents roughly 160,000 units in San Antonio, to forgive 25% rent for tenants who receive funding from the city's $25 million Covid-19 Emergency Housing Assistance Program.

Last Thursday, many council members were quick to not cast landlords in a negative light, and said most want to work with tenants and evict as a last resort. Treviño echoed the sentiment.

"We know most landlords are good people, most of the people in San Antonio are amazing—but then there are people like (at) the Olmos Club Apartments," Treviño said referring to the incident last month when a landlord locked out an roughly 50 tenants at a property near San Pedro Avenue and Basse Road. "They do what they do. I'll call those people creeps all day long."

Treviño ordinance, also known as "right to cure," appears to have the backing of Mayor Ron Nirenberg, who placed it on next week's meeting. However, it appears city officials are not formerly recommending it to the rest of the council. Absent from the city's agenda is any background or supporting documents for Treviño's proposal, even though a draft has already been crafted. Normally, under protocol, the full council is briefed on an ordinance the week before it's scheduled to vote on it.

However, last Thursday, Assistant City Manager Lori Houston didn't mention Treviño's ordinance during her presentation on a separate, but similar initiative known as a "notice of tenant's rights," a concept Treviño has backed since before the outbreak. Such a notice urges tenants to begin a dialogue with their landlords, while also clarifying the eviction timeline and offering them resources they could pursue.

It's a document the Apartment Association, not Treviño, had a heavy hand in crafting with city attorneys.

[ Previously published: Tenants may get 60 extra days to resolve overdue rent during coronavirus crisis ]

Is 'right to cure' legal?

When it comes to interpreting legal matters, City Attorney Andy Segovia sometimes offers his opinion to council members in open meetings. For Treviño's right to cure ordinance, Segovia said such a conversation must happen behind closed doors in executive session.

It's unclear whether Segovia has already had that conversation with council members.

During last week's meeting, Segovia told the council there may some legal challenges to Treviño's ordinance, but would not expand.

"While potential legal issues have been raised by landlord groups, we cannot speculate on potential legal challenges to proposed ordinances," Segovia said in a statement to the Heron.

David Fritsche, the apartment association's lawyer, said Treviño's ordinance would violate a landlord's constitutional rights at the federal and state levels. When asked, Fritsche declined to explain exactly how.

"That's where we get into litigation strategy, and I prefer not to answer it," he said.

Fritsche said the Apartment Association worked with the city on crafting a notice of tenant's rights because it's not actually tied to the Texas Property Code and therefore doesn't prohibit a landlord's ability to promptly issue a notice to vacate.

Treviño's ordinance, if challenged in court, "would not withstand constitutional scrutiny," Fritsche said. "The association's intent in working carefully with the city was to find an alternative that avoids any type of constitutional infirmity."

Recently, Treviño's office asked the Texas RioGrande Legal Aid (TRLA), a nonprofit that offers a pro bono lawyer to people being evicted, to assess the ordinance for its legality. TRLA is also the nonprofit the city hired for its recently-launched right-to-counsel program, another Treviño-led initiative in which the city offers a lawyer for those at risk of eviction.

Click here to read TRLA's assessment, which Treviño's office sent to media members May 5.

It makes several points, including a quote from the Texas Property Code that says a "lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction" before a notice to vacate is given, TRLA Attorney Marissa Latta states in the memo. Treviño's ordinance, TRLA argues, would serve as that applicable law.

Also, "an opportunity to cure ordinance likely does not violate the Texas Constitution's prohibition on impairing the obligation of contracts," Latta wrote referring to lease agreements. The ordinance doesn't lower or waive a renter's debt, she wrote, but "merely delays" it.

"Additionally, the public interest served by an opportunity to cure ordinance is considerable, particularly in a time of a global pandemic and drastic economic contraction," she wrote.

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The rights of tenants

In January, when Treviño proposed the concept of a renters commission, the councilman said renters needed to be better informed about their rights. When a landlord gives them a notice to vacate, for example, a tenant doesn't have to leave ASAP. The notice means they have three days, under Texas law, before the landlord can sue them in eviction court.

For the exact same reason, city officials, with the Apartment Association, and with input from community groups such as COPS Metro, crafted a notice of tenant's rights and presented it to council last Thursday. However, Treviño had just heard of the initiative the night before, said Justin Renteria, a policy analyst for the councilman.

A notice of tenant's rights is a document that would be presented to tenants the same day, or possibly the day before, they're given a notice to vacate. The idea, according to the Apartment Association, is to urge tenants to communicate with their landlord immediately, before the eviction process proceeds—while educating them of their rights and providing them with housing resources, including the Covid-19 Emergency Housing Assistance Program.

Click here for the complete presentation on notice of tenant's rights give to City Council last Thursday.

If passed, landlord who do not give notices of tenant's rights would be fined $500 per violation.

Fritsche said during the discussions between the apartment association and the city officials, city officials never mentioned Councilman Treviño's proposal.

"The only thing that was communicated to us: The City Council is concerned people don't know what their rights are after a notice to vacate," Fritsche said.

Treviño's ordinance appears to have the backing of many council members. But not District 10 Councilman Clayton Perry, who said last week, "Usually when the government implements something that's not fully vetted and folks (don't fully) agree with, there's unintended consequences ... That's what concerns me, those unintended consequences, or even legal actions that could or could not happen."

» As eviction lawsuits dwindle, tenants may get 60 extra days to resolve overdue rent during coronavirus crisis
» Cost of living assistance balloons to $30M locally amid coronavirus
» As eviction lawsuits dwindle, tenants may get 60 extra days to resolve overdue rent during coronavirus crisis
» A commission of renters? In San Antonio, the debate rages early on
» Treviño: 'The renters commission is going to happen. I’m positive of that.'
» Number of people seeking housing assistance in San Antonio soared 6,700% last two weeks
» Landlords asked to forgive 25% rent for tenants impacted by coronavirus
» Evictions, property tax foreclosures in Bexar County suspended due to COVID-19 concerns
» Map: Where to pick up free breakfast and lunch while schools are closed for coronavirus
» How San Antonio’s taquerias are hurting during coronavirus outbreak
» Retailers close in compliance with coronavirus order, leaving downtown nearly lifeless
» Looking back: The week downtown San Antonio became a ghost town

Contact Ben Olivo at 210-421-3932 | | @rbolivo on Twitter

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