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But My Rent Isn't Due Until the 3rd!!!!

Updated: Aug 27, 2020

If you have a standard residential lease in Texas, you may notice that, while the lease says that rent is due on the first of each month, it also says that late fees are not assessed unless you or your tenants haven't paid by the 3rd. So obviously the rent isn't due until the 3rd, right?

That is not correct. Under the current version of Section 92.019 of the Texas Property Code, residential landlords cannot assess late fees until rent is unpaid for two full days after the due date (under the previous version, which still applies to leases signed before September 1, 2019, rent must have only been unpaid for one full day).

But that does not mean that tenants who don't pay by the first can't face other consequences, including eviction. In fact, Section 92.019(e) specifically says that this late-fee restriction "does not affect the landlord's right to terminate the lease or take other action permitted by the lease or other law."

Of course a lease can always provide that a notice to vacate (which initiates the eviction process in Texas) cannot be served until the 3rd, or the 4th, or the 10th, or that a notice to cure is required, but that is not the norm in this state. Most Texas residential leases provide that the eviction process can begin with serving a notice to vacate as early as 12:01 A.M. on the 2nd for the month's rent being unpaid.

Tenants, don't get evicted because you are confused about when your rent is due. Make every effort to pay by the first.

Landlords, please don't actually serve notice to vacate for unpaid rent at 12:01 A.M. on the 2nd. Be reasonable. But also be aware of your rights and your tenants' obligations.

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