Fuchs says a landlord can take a tenant's property only because of unpaid rent – not past due utilities, maintenance or other costs. There are also restrictions on what exactly landlords can take. They can't take a tenant's clothing, food, medicine or family portraits, for example. But they can take TVs, musical instruments and furniture, with some exceptions.
Fuchs, who has worked on a number of these cases over the years, says tenants usually aren’t aware that a landlord has this right until they have to deal with it firsthand. Still, Fuchs says, liens are typically not the first option landlords go for to secure payment.
"It's just a better practice and better for tenant relations if a landlord does not use the practice, because there are other effective remedies," Fuchs says, "primarily trying to get the tenant into the office to talk about the rent and then using the eviction process, where a third party – a judge – can determine whether a tenant is in default."
To invoke the lien, a landlord doesn’t need a judge. But because the rules are so specific, there’s a lot of room for error. Landlords could take things they're not supposed to, or they could fail to leave the required written notice letting a tenant know they took something. In those cases, tenants have some recourse.
"The tenant can get damages," says Juliana Gonzales, executive director of the Austin Tenants' Council, a renters’ rights group. “They can also get a financial amount of one month's rent or $500, whichever is larger, as well as attorney's fees."
A landlord who violates the law would also have to return the tenant’s property (provided it hasn’t been sold). If the property has been sold, the tenant would get the proceeds.
Gonzales says she thinks the state's landlord's lien law, which went into effect in the 1980s, is outdated. For example, landlords can take tenants’ phones and computers – items that are essential to people’s lives and work these days.
Gonzales says it's common for the Austin Tenants' Council to see lien cases that are not executed properly.
"Oftentimes, landlords know that they have the right to pursue unpaid rent, but they don't necessarily know the precisely right process to pursue that unpaid rent," she says. "And so at times, they may be violating the law or violating tenants' rights."
