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Geeklog December 10, 2011

Prop1 - Rental Ordinance


Comments to Rental Ordinance 2457 Articles I and III

Voters of Terrell are divided between being for or against Rental Ordinance 2457, and this is well and good provided these voters are fully informed about what is contained in the ordinance. For this reason, the full ordinance is available on (this) website www.75160.com. Scroll down to see the ordinance.

Understandably, it is a big effort to read, much less study the full ordinance. With this in mind, this commentary has been prepared to explain and focus on many of the controversial areas of the document. Care has been taken to accurately describe various parts of the ordinance, with particular attention given to possible unconsidered and unintended consequences. The article numbers and paragraph numbers below correspond to the actual ordinance articles and paragraphs, and the reader is urged to check any questionable statements for accuracy against the full ordinance.

In understanding the full ordinance, it helps to know that it is divided into four principal sections identified as:

  • Article I - General Provisions

  • Article II - Multi-Family - Manufactured Housing and Duplexes, and Townhouse Rental Properties

  • Article III - Single-Family Rental Properties

  • Article IV - Crime Free rental Program

Article I revises a similar section of existing Ordinance #2385 for multi-family structures to be applicable to singly-family rental property. It lists an additional national fire protection and life safety code, and an international crime free rental program in addition to the 13 other codes of the previous ordinance.

Article II replaces most parts of existing Ordinance #2385 for multi-family structures with exact or similar wording, and does not apply at all to single-family rental property.

Article III is the most contentious part of the new rental ordinance. It is modeled after the multi-family Article II section with wording and requirements changed to fit single-family rental property.

Article IV sets forth the Crime Free Program requirements, and is entirely optional for the owner/landlord. Only Articles I and III are requirements for single-family rental housing and are the primary articles in contention. With these brief facts in mind, the following commentary is provided:

Article I - General Provisions

Paragraph A.1. The objectionable part of this requirement is that the 15 local, state, national, and international codes are called for (including all future revisions), and it is unclear whether they apply in their entirety, or only to the extent specified in the following articles. Further, there is no "grandfather" provision. Bringing a house up to even a few of these requirements could be cost prohibitive.

Paragraph A.1.3 This paragraph states that, " this code is to be liberally construed to effectuate its purpose". Such language gives the inspector virtually unlimited authority in interpreting the "purpose" of the ordinance, and is subject to wide variations in interpretation.

Paragraph A.1.4 This paragraph sets forth the various fees for obtaining a "Certificate of Inspection". Subsequent paragraphs state that the Certificate of Inspection is issued to the landlord/owner - strongly implying that the landlord/owner pays these fees. But many of the ordinance requirements are the responsibility of the tenant. If the tenant causes failure of the inspection (and re-inspections), the landlord/owner should not be responsible for these fees.

Article II - Multi-Family …. Rental Properties

No comments on this article because it is basically a replacement of previous ordinance #2385.

Article III - Single-Family Rental Properties

Paragraph A. Applicability

Paragraph A.1 For some unexplainable reason, an exemption to all code requirements is given to tenants who are relatives of the property owner.

Paragraph A.2 There are two kinds of inspection required by this paragraph. One applies only to property registered in the optional "Crime Free Rental Program", and is based on "NFPA 101 Life Safety Standards". The other is conducted in accordance with HUD form HUD-52580-A and applies only to property not registered in the "Crime Free Rental Program". No specific chapter or paragraph of the NFPA code is specified, creating the potential of applying and misapplying this massive code.

Paragraph A.3 Awkward wording of this paragraph makes it a little difficult to interpret. It appears that the first part of this paragraph applies only to property participating in the Crime Free rental Program. It requires an initial inspection during vacancy, and provides that subsequent inspections be conducted at four year intervals" whether vacant or not". It adds a requirement for property not in the Crime Free Rental Program to receive a "basic" Life/Safety inspection upon vacancy or prior to occupancy. This added requirement could cause a property to be inspected and re-inspected several times within a single year.

Paragraph B. Minimum Standards - Responsibilities of landlord.

Paragraph B.1.d This paragraph requires the landlord to keep "doors and windows capable of being securely closed". There is no requirement for the tenant to notify landlords of a problem with doors or window locks, so it is impossible for landlords to know about and comply with this requirement.

Note: A number of subsequent paragraphs require the landlord to "maintain" certain items (some of which are the responsibility of the tenant). Unless the owner/landlord discovers such problem/s prior to the actual inspection, this can only be done if the tenant notifies the landlords of the problem.

Paragraph B.1.e This requirement is for landlords to insure that the tenant keep the dwelling in a clean and sanitary condition. Short of inspecting the dwelling daily, there is no way the landlord can comply with this requirement.

Paragraph B.1.g This paragraph limits the number of occupants based on the number of bedrooms in the dwelling. It makes no allowance for family emergencies, temporary guests, or new additions to the family. Further, if sanitation, health, and welfare are the true objectives of the ordinance, it might make more sense to limit occupation based on the number of bathrooms.

Paragraph B.3.e This paragraph requires that the landlord "connect all plumbing systems and mechanical systems in accordance with the adopted codes". There is no provision in the ordinance to grandfather existing construction, which was originally built to code, but now (because of code changes) the dwelling would not pass inspection. Consider for example the cost of rewiring a house to replace two-wire circuits and outlets with three-wire circuits and outlets. This seems like an unreasonable requirement.

Paragraph B.4.a The exact requirement of this paragraph is "to maintain in proper working order all exterior lighting, such as: for parking lots, exterior security lighting, breezeways, porch lights, or other common areas". This paragraph is an inappropriate carryover from an attempt to cobble together the single-family requirements from the multi-family requirements. Single-family dwellings do not have "common areas", and it should not be the landlord's responsibility to "maintain in proper working order all exterior lighting".

Paragraph C. Minimum Standards - Responsibilities of tenants

The subparagraphs of this section seem reasonable with a few exceptions. However, there is no provision for enforcement on the tenant, and the enforcement provision that does exists is to inspect and re-inspect the dwelling with corresponding escalating fees levied on the landlord for the tenant's noncompliance. A little more foresight and fairness is needed here.

A note at the bottom of this section states the following: "The above list of responsibilities of a tenant is not to be construed to be comprehensive or exhaustive, wherein, the tenant's responsibilities as well as the duties and remedies of the landlord are covered by contractual lease agreements, other city codes and by the Texas Property Code - Title 8 - Chapters 91 and 92". The combined page count of these two chapters is eighty-plus pages of law concerning detail tenant/landlord relationships. How or why the city intends to insert itself into this legal and previously defined relationship is unknown. unnecessary, and undesirable.

Paragraph C.1.f This paragraph requires the tenant to place waste materials in covered receptacles, which cannot be turned over by dogs or other animals. Comments to this paragraph are as follows:

  • There is no corresponding requirement for homeowners to comply with such sanitation requirements; therefore, plastic bags will still be OK for them. Apparently homeowner's garbage is not unsanitary or unsightly like renter's garbage.

  • The ordinance should state that the tenant is required to supply their own trash receptacles.

  • Preventing an ordinary trash can from being overturned would be exceedingly difficult.

Note: This is another carryover from the multi-family ordinance, which has been erroneously executed in this ordinance.

Paragraph C.1.j This paragraph requires that the tenant not conduct any business in violation of city home occupation codes. A reference to the appropriate city code paragraph/s (or least the code number) is needed here.

Paragraph D Annual Inspections (only applies to rental property not participating in the Crime-Free Rental Program)

Paragraph D,2 Inspections. This paragraph defines which city officials are empowered to perform ordinance compliance inspections on "multi-family" premises, and requires that the owner/landlord grant" irrevocable consent" to allow inspections "at least" once a year. Comments are as follows:

  • The use of the term "multi-family" in a section dedicated solely to single-family requirements is one of several illustrations of the carelessness with which this ordinance was prepared.

  • The requirement for "irrevocable" consent is a mystery, and is troubling.

  • The requirement of having "at least" one inspection per year implies there could be multiple inspections within a year. This implication is confirmed in subsequent paragraphs.

Paragraph D.2.e This paragraph provides for inspections based on receipt of a formal complaint. This is an example of an inspection performed in addition to the yearly inspection. The fee for this inspection is no doubt charged to the owner/landlord. Responsibility for payment of the fee/s needs to be defined, and if the complaint turns out to be false, the complainant should pay the fee.

Paragraph D.3 Inspection scheduling.

Paragraph D.3.a The first sentence of this paragraph states that the scheduling of inspections is between the owner/landlord and the city inspector (not the tenant), and provides for delays and rescheduling by the city (not the owner/landlord). The objections to this paragraph are as follows:

  • The tenant has no right of involvement in the scheduling.

  • The city is only required to schedule the inspection on a "reasonable date". A vacant house could be un-rentable for several weeks while the city determines a reasonable (convenient) date.

  • The city can take up to an additional 15 days to reschedule an inspection (meanwhile, a vacant house might remain un-rentable).

  • There in no limit specified on how many times the city can reschedule an inspection.

Paragraph D.3.b This paragraph allows the owner/landlord a onetime denial of admittance for a scheduled inspection, and requires rescheduling by the owner/landlord within 10 days. The last sentence provides for additional fees, or "obtaining an administrative search warrant" to secure entry. Comments:

  • There are legitimate and sometimes unforeseeable and uncontrollable reasons why an owner/landlord might need additional time, and the owner should not be subject to additional "fees" for such circumstances. Consider for example, that the tenant moves out prior to the scheduled inspection, and leaves the dwelling in such a state that repairs and remodeling are needed to pass an inspection.

  • Many people object to the concept of the city obtaining a search warrant as a violation of their 14th amendment rights and the Texas constitution.

Paragraph D.3.c This item requires that all inspections occur between the hours of 8:00 a.m. and 5:00 p.m.. Since many owner/landlords and tenants have work commitments, an after-hours or Saturday option should be available.

Paragraph D.3.e This paragraph gives the tenant the right to be present during the inspection, and specifies that the tenant be given no less than seven days notice of the inspection. The objection here is that the tenant has no right in the selection of the date, and may not be able to be present at the scheduled time.

E. Enforcement

E.1 Re-Inspections. The lead-in to this paragraph allows the owner/landlord" thirty(30) days to remedy all conditions identified as a violation of this ordinance" by a previous inspection, and requires a re-inspection (with fees) within thirty days. It should be clearly stated that a re-inspection is limited to only those items identified in the previous inspection. Otherwise, there could be no limit to the number of re-inspections and escalated fees.

Paragraph E.1.c This requirement would allow the city to contact the various utility companies or city departments to have the utilities disconnected to an individual dwelling unit to ensure the safety of the tenants or the public. In order to assure that this requirement is not misused or used to intimidate renters or owner/landlords, it should be required that such a safety deficiency be clearly identified as a "safety" requirement in the previous inspection.

Paragraphs E.1.d.,e.,&f These paragraphs appear to apply to structural deficiencies which can be identified from external inspections. If so, they are covered by existing city codes and are not necessary in this ordinance.

Paragraph E,2 Certificate of Inspection/Occupancy

Note: There are two different inspections identified here. A Certificate of Occupancy is a onetime document issued as a part of the building permit inspection procedure for a new dwelling. This ordinance now requires it for an existing single-family dwelling, which is converted to a rental property.

Paragraph E.2.a Initial Certificate of Inspection. The requirement to be inspected prior to December 31, 2010 is obviously now impossible to meet. The requirement should be for the initial inspection to occur within some reasonable time after the ordinance becomes effective and all legal challenges have been exhausted.

Paragraph E.2.f Revocation of a Certificate of Inspection. Among other requirements, this paragraph states that ten days notice must be given to the tenant and owner/landlord prior to having utilities disconnected. In order to prevent misinterpretation of this paragraph, it should be clearly stated that utilities can only be disconnected for safety reasons as previously specified in paragraph E.1.c. Furthermore, disconnecting utilities could be more detrimental to the health, safety, and welfare of the tenant than the alleged safety violation, and the owner/landlord should in no way be held liable for the city disconnecting the utilities.

The above comments are provided by Art Crothers, and do not necessarily represent the views of citizens for or against Ordinance 2457, or website www.75160.com.

Proposition 1, also know as ordinance 2457, rental ordinance, crime prevention/safer Terrell ordinance is widely misunderstood by those who support it. Many things have been said about it in favor of it based on things that are not true.

To understand the fact and fiction please read the actual ordinance. Click HERE to read it.

Read the 2457 Ordinance here

GeeklogThe ordinance 2457 can be downloaded HERE

Click on the link to download the pdf version.

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