residential-lease texas real-estate taa
Is rent acceleration legal in Texas?
<p>Texas Association of Realtors' Sample Lease has the following:</p>

<blockquote>
  <p>B. If Tenant fails to timely pay all amounts due under this lease or otherwise fails to comply with this lease,
  Tenant will be in default and: </p>
  
  <p>...</p>
  
  <p>(2) all unpaid rents which are payable during the remainder of this lease or any renewal period will be
  accelerated without notice or demand; </p>
</blockquote>

<hr>

<p>However, the standard <a href="http://www.taa.org/images/assets/PDF/renter/2009apartmentlease_forweb.pdf">Texas Apartment Association (TAA) apartment lease contract</a> is explicitly unforgiving and unconditional, to the point of being quite unreasonable and unconscionable about the application of acceleration, something I've hardly seen on any other lease anywhere:</p>

<blockquote>
  <p><strong>11. UNLAWFUL EARLY MOVE-OUT; RELETTING CHARGE.</strong>
  You’ll
  be liable for a reletting charge of $____________ (not to exceed 85%
  of the highest monthly rent during the Lease Contract term) if you:
  (1) fail to move in, or fail to give written move-out notice as
  required in paragraphs 23 or 37; or
  (2) move out without paying rent in full for the entire Lease
  Contract term or renewal period; or</p>
</blockquote>

<p>...</p>

<blockquote>
  <p><strong>14. FAILING TO PAY FIRST MONTH’S RENT</strong>
  . If you don’t pay the
  first month’s rent when or before the Lease Contract begins, all future
  rent will be automatically accelerated without notice and immediately
  due.</p>
</blockquote>

<p>...</p>

<blockquote>
  <p><strong>32. DEFAULT BY RESIDENT.</strong>
  You’ll be in default if: (1) you don’t pay
  rent or other amounts that you owe on time; (2) you or any guest or
  occupant violates this Lease Contract, apartment rules, or fire, safety,
  health, or criminal laws, regardless of whether or where arrest or
  conviction occurs; (3) you abandon the apartment; ...</p>
  
  <p><strong>Acceleration.</strong>
  All monthly rent for the rest of the Lease Contract term
  or renewal period will be accelerated automatically without notice or
  demand (before or after acceleration) and will be immediately due
  and delinquent if, without our written consent: (1) you move out,
  remove property in preparing to move out, or give oral or written
  notice (by you or any occupant) of intent to move out before the Lease
  Contract term or renewal period ends;
  and
  (2) you’ve not paid all rent
  for the entire Lease Contract term or renewal period. Such conduct
  is considered a default for which we need not give you notice.
  Remaining rent also will be accelerated if you’re judicially evicted or
  move out when we demand because you’ve defaulted. Acceleration
  is subject to our mitigation obligations below.</p>
</blockquote>

<p>...</p>

<blockquote>
  <p><strong>38. MOVE-OUT PROCEDURES.</strong>
  The move-out date can’t be changed
  unless we and you both agree in writing. You won’t move out before
  the Lease Contract term or renewal period ends unless all rent for the
  entire Lease Contract term or renewal period is paid in full. Early
  move-out may result in reletting charges and acceleration of future
  rent under paragraphs 11 and 32.</p>
</blockquote>

<p>Is this at all legal?</p>

<p>For example, if someone signs a 15 month lease, but has to move after a couple of months, are they really supposed to shell out 13 &times; the monthly rent prior to being able to assign the lease to someone else, and/or until some such someone else is actually found and takes over the lease?</p>

<p>If the provision is not actually enforceable in Texas, for example, due to <a href="http://austin-office.com/rent-acceleration-clauses/">damage mitigation</a> provision, or due to the <a href="http://www.expertlaw.com/forums/showthread.php?t=131971">late fee</a> statutes, why is it so prevalent in all residential leases in Texas, especially by all TAA members?</p>

<p>Yes, acceleration clauses in residential leases have been enforced by Texas courts. However, whether the acceleration clause quoted in your question will be enforced is an issue of fact for which there can be no definitive answer at this time.</p>

<p><strong>Acceleration Clauses are Valid in Texas</strong></p>

<p>Acceleration clauses have been recognized as valid by Texas courts. </p>

<p>In <em>Rem Servs. v. Zaheer</em>, a Texas Court of Appeals upheld a judgment by the trial court "award[ing] the landlord $24,000 in damages, representing the four months of accelerated rents on his breach of contract claim." </p>

<p><em>See <a href="https://scholar.google.com/scholar_case?case=11661125762953535649&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr" rel="nofollow">Rem Servs., Inc. v. Zaheer</em>, No. 14-12-00724-CV (Tex. App. Apr. 4, 2013).</a></p>

<p>Also, in <em>Williams v. Colthurst</em>, the court implied that the damages given by the trial court included an accelerated rent provision: </p>

<blockquote>
  <p>Additionally, the trial court had previously determined that the
  tenants owed unpaid rent and late fees of $8,850. The lease provided
  that the landlords could deduct unpaid or accelerated rent and late
  fees from the security deposit.</p>
</blockquote>

<p>Unfortunately I couldn't find the trial court opinion to ensure that accelerated rent was included in the $8,850.</p>

<p><em>See <a href="https://scholar.google.com/scholar_case?case=7087997441673370975&amp;hl=en&amp;as_sdt=6,33" rel="nofollow">Williams v. Colthurst</em>, 253 S.W.3d 353 (Tex. App. 2008)</a>.</p>

<p><strong>Limitations on Acceleration Clauses</strong></p>

<p>There are several sections of the Texas Property Code that may mitigate the use of an acceleration clause.</p>

<p>First, a landlord cannot charge a tenant a fee for failure to pay rent unless the fee is a <strong><em>reasonable estimate of uncertain damages</em></strong> to the landlord that are incapable of precise calculation and result from late payment of rent." See <a href="http://www.statutes.legis.state.tx.us/SOTWDocs/PR/htm/PR.92.htm" rel="nofollow">§ 92.019(a)(2) of the Texas Property Code</a>:</p>

<blockquote>
  <p>(a)  A landlord may not charge a tenant a late fee for failing to pay
  rent unless:</p>
  
  <p>(1)  notice of the fee is included in a written lease;</p>
  
  <p>(2)  the fee is a reasonable estimate of uncertain damages to the
  landlord that are incapable of precise calculation and result from
  late payment of rent; and</p>
  
  <p>(3)  the rent has remained unpaid one full day after the date the rent
  was originally due.</p>
</blockquote>

<p>Further, landlords have a duty to mitigate damages. See <a href="http://www.statutes.legis.state.tx.us/SOTWDocs/PR/htm/PR.92.htm" rel="nofollow">§ 91.006 of the Texas Property Code</a>:</p>

<blockquote>
  <p>(a)  A landlord has a duty to mitigate damages if a tenant abandons
  the leased premises in violation of the lease. </p>
  
  <p>(b)  A provision of a
  lease that purports to waive a right or to exempt a landlord from a
  liability or duty under this section is void.</p>
</blockquote>

<p>This duty requires that the landlord use "objectively reasonable efforts to re-lease the premises when the tenant vacates in breach of the lease." <em>See <a href="https://scholar.google.com/scholar_case?case=11661125762953535649&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr" rel="nofollow">Rem Servs., Inc. v. Zaheer</em></a> (citing <a href="https://scholar.google.com/scholar_case?case=9992418660521179386" rel="nofollow"><em>Austin Hill County Realty, Inc. v. Palisades Plaza, Inc.</em>, 948 S.W.2d 293 (Tex. 1997)</a>; <a href="https://scholar.google.com/scholar_case?case=14445119771059181156" rel="nofollow"><em>White v. Harrison</em>, 390 S.W.3d 666 (Tex. App. 2012)</a>).</p>

<p>But it's important to note that the tenant bears the burden of proving both that the landlord did not mitigate his damages and the amount by which the landlord could have mitigated his damages. This is likely a difficult burden. In <em>Rem Servs. v. Zaheer</em>, the court decided that the landlord did not breach his duty to mitigate even though he did not list the property for rent during the four months remaining on the lease.</p>

<p><strong>Disclaimer</strong></p>

<p>This was the only case and statutory law on point that I found; I may have missed some. If you are referencing a real lease, I recommend that you discuss this matter with a real estate lawyer licensed to practice law in Texas.</p>
