August 2022

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Austin Circling Back to Bad Policy

Leave a Comment / Landlord / Tenant Dispute / By
  • On September 1, the Austin City Council is scheduled to vote on whether to bring back a COVID era restriction on landlords.
  • If passed, landlords will have to issue a 21-day Notice of Proposed Eviction before they can issue Notices to Vacate.
  • This is a bad idea, and I encourage you to reach out to your City Council member and ask him or her to vote no on this.

During the heart of the COVID pandemic, the Austin City Council enacted a lot of orders allegedly designed to protect Austin tenants. At least at the beginning, unemployment was very high and the City wanted to make sure people were able to stay in their homes during the crisis.

I wrote a lot about this in this blog as it was happening. And in the beginning, it was understandable. But the City kept extending these laws, even as unemployment dipped considerably, people were back at work, and COVID dissipated. But FINALLY the Council let them expire. And I thought that was the end of it.

But boy am I dumb. Apparently I underestimated our City Council. And now, on the agenda for the September 1 City Council meeting, they are potentially bringing back some COVID-era regulation. And it’s a really bad idea.

Is Austin Really Going to Bring Back the Notice of Proposed Eviction?

 

One of the laws the City Council enacted during COVID was to require landlords issue a Notice of Proposed Eviction when they need to evict someone for non-payment of rent. Under Texas law, if a tenant does not pay rent, the landlord can send the tenant a Notice to Vacate. That gives the tenant three days to vacate the unit before the landlord starts eviction proceedings.

Under the City of Austin’s Notice of Proposed Eviction scheme, landlords are first required to give the tenant 21 day notice before they can send a Notice to Vacate. Effectively, this increases the time period prior to the landlord starting the eviction process from 3 days to 24 days.

The City Council has now put a Notice of Proposed Eviction back on the September 1 meeting agenda. If approved, this will make the Notice of Proposed Eviction a permanent aspect of the Austin landlord/tenant relationship.

This is a Bad Idea for Multiple Reasons

 

The headline kind of says it all. But I want to explain why this is a bad idea.

First, it goes against state law. The state has already set up the rules that govern the relationship between a landlord and tenant. And Chapter 24 of the Texas Property Code sets forth the process for how a landlord can evict a tenant if the tenant does not pay. I am not sure why the City Council thinks its proper for them to change these rules. But I would hope the State Legislature clarifies its exclusive authority in this area at the next legislative session.

Second, its not clear to me what problem the City Council is trying to solve. If a tenant has not paid his or her rent, will giving the tenant 21 extra days make it more likely he or she comes current? Is there any data to back up this assumption? Because it seems like all the Council is doing is extending a bad situation for everyone.

Third, this shifts the burden of the tenant not paying from the tenant to the landlord for 21 additional days. I fail to see why that’s fair or why landlords should have to carry that burden. If the City wants to give tenants 21 extra days to live rent free, then perhaps it should pay the landlords directly for that burden. This would spread the cost of those 21 days among all taxpayers – instead of laying it at the feet of landlords.

Finally, ultimately this is all going to lead to increased rent. Under this scheme, the time for a landlord to have a non-paying tenant necessarily increases by 21 days. As a result, the cost of building (desperately needed) housing units and the cost of managing those units automatically increases. And, as we all know, those costs will eventually trickle down to tenants through higher rents and fees.

In a city that desperately needs more housing, the City Council should be doing EVERYTHING it can to encourage development. Instead, the Council is debating enacting a law that will increase the cost of development and management. I encourage everyone reading to reach out to your City Council member’s office before September 1 and tell them to vote no on this proposal.

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Austin Going Back to the Well

Leave a Comment / Social Issues of Central Texas / By
  • Austin will have another housing bond on the ballot this November.
  • It will likely be a $350 million bond to allow the city to build more affordable housing units and repair existing ones.
  • Austin is in desperate need of more affordable housing and, therefore, without knowing more, this bond may make some sense.

I have been meaning to write about this topic for a couple of weeks now – ever since the news broke. But I got distracted by more urgent items. If you didn’t see, the first was to try to raise funds to help keep artistic outlets for young people around. And the second was to update on the new podcast.

But now we are back to local news. And in Austin, that can only mean one of a couple of topics. And this week its affordable housing. We have talked a lot about affordable housing in this blog. And for good reason. Central Texas has a huge affordable housing issue. And we need to do all that we can to help fix that.

The City Council apparently believes that includes another affordable housing bond. As a result, there will be another bond issuance on the ballot for the November election. But what is in it? And is it worth voting for? That’s what we talk about this week.

What is in the November Affordabe Housing Bond?

 

The bond issuance is likely to be for $350 million. This would be $100 million more than the last housing bond in 2018. I write “likely to be” because it needs final approval this month. Once it gets that, we will know the exact language that will be on the ballot in November.

The City will use the funds to acquire new land and build new homes. It will also use it to repair existing houses. Unfortunately, there is not much detail in it beyond that. The money will be the City’s to use as it sees fit within the housing world.

Is the Housing Bond a Good Idea?

 

As I wrote above, we have dedicated a lot of words in this blog to Austin housing. And for good reason. Its kind of a mess right now. Austin is already very unaffordable for many people. And there are a lot more people coming here over the next 20 years. As a result, we are in a desperate situation. We have to take steps now to try to fix the situation and prepare for the future.

All that means is that I am naturally inclined to support measures that may help fix the problem. And according to the City, the last three housing bonds have produced 6,754 new housing units. Which, if true, is great. Though, as you can see, I’m a little skeptical. I would like to see the detail of those units. That does not mean it didn’t happen, I would just like to see where those are and what they are (single family housing versus multi, etc). Tackling this problem requires increased density. And building some affordable single family homes helps some – but does not get to the heart of the problem.

So I am a little uneasy about just giving the City Council a blank check and hope it makes the right decisions on affordable housing. Frankly, if the Councilmembers wanted to really help the affordable housing issue, they should do what I’ve talked about in this blog repeatedly – remove restrictions, speed up the permitting process, reduce compatibility requirements, encourage density, etc. That would be a lot bigger help than the bonds the council is discussing.

But as I wrote above, we are in a housing crisis. And so I do not look at this as an either/or issue. Right now, I’m inclined to think that we should vote for this housing bond AND we need to loosen the restrictions and encourage more density. But it’s a long way to November. And I’m sure we will talk about this bond again before then. And as more details come out, or more of you educate me, I may change my mind.

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BLF - Greater Texas - New Podcast Episode Cover(3)

Great Conversations for a Greater Texas – Checkout the Greater Texas Podcast

Leave a Comment / Social Issues of Central Texas / By
  • We have recently started a new podcast called Greater Texas.
  • On each one, we invite an industry leader to discuss the topics facing our great state and how to improve.
  • I hope you will listen and join in the conversation as to how we go about building a better Texas.

This week’s blog is a little bit different than the usual enthralling yarns I weave. But I think it will undoubtedly be just as thrilling as the normal ones.

A few months ago, I decided to expand the Bukowski media empire – I started a new podcast. Its called Greater Texas and in it, we explore how to build a better Texas.

So that’s what I want to talk about this week – what the podcast is, why I started it, and why you should listen.

What Greater Texas Adds to the Landscape

One of the first things you have to do when you decide to start a podcast is figure out what you want it to be. What will the format be, will you have guests, etc. And to do that, you need to know why you are starting the pod, what you want to accomplish, etc. I’ll come back to the why in the next section. In this one, I first want to address the what.

I decided fairly quickly that it would be a guest driven podcast. As much as I enjoy hearing myself talk, I reckon the listeners would get pretty sick of just listening to me drone on and on and on.

As a result, each episode contains an industry or thought leader or influencer who cares about what’s happening in Texas and wants to help improve it. Folks like Cross Moceri, Jim Young, Phyllis Snodgrass, and Dan Tobin have been kind enough to be the first few guests on the show.

We generally start out by talking about the person’s background, how they got into the field they are in, and why they are in it. After that, we switch to focus on the issues facing Texas and how we can solve them. Because Texas is a great place. But it has a lot of change coming. And to build a better Texas, we need to be discussing the issues now.

What’s the Point of Greater Texas?

So now we know what Greater Texas is. But why? What’s the point? Aren’t there enough podcasts out there already?

First, much like pizza and beer, you can never have too many podcasts. And especially not in the area we are discussing. I call it nominally a commercial real estate blog and that’s because that’s where I work. And that’s where a lot of the guests work. But our conversations will drift far outside just commercial real estate. We really want to focus on building a better Texas.

And that’s why I decided to start this podcast. Look, I’ll be honest – obviously one of the motivations is to get my name and firm out there and to build more business. I think anyone who has a podcast would tell you that if they are honest. But its not my sole or biggest motivation.

I have lived in Texas for 19 of the last 21 years. I really like it here. And I think its extremely exciting to see all the amazing growth. But that doesn’t mean we are perfect. Far from it. There are a lot of areas we can improve on. And we absolutely need to improve to keep up with the growth that is coming.

So that’s what I want to talk about in the podcast – the issues facing Texas and how we can resolve them. And we do it from a nominally real estate point of view because that’s what we know. And that’s what we can help solve.

We need to have conversations on building a better Texas. Because if we just stand still, things will rapidly go down hill. So I hope you will listen and subscribe to the podcast. And join me in our conversations about making a Greater Texas.

Check out our Podcast – https://bukowskilawfirm.com/attorney-sean-bukowski-greater-texas-podcast/

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Austin TX Street Art

The Arts are Elementary – a Fundraiser for Groups that Promote the Arts Among Austin Youths

Leave a Comment / Social Issues of Central Texas / By
  • Rising housing and commercial rental costs are driving art from our community.
  • The Austin Creative Alliance is holding a fundraiser for groups that promote the arts among youths in Austin.
  • THE FUNDRAISER IS ONLY OPEN UNTIL 6PM TODAY – AUGUST 10.

This week I’m writing about something I care passionately about. We have a problem in Austin and we need to pay attention to it or we are going to lose a lot of what makes Austin great.

Austin built its cool around the arts. Everyone knows how much live music there is here. And its reputation as an artist conclave is known throughout the country, if not the world. There are many reasons for that, but I think most of us would agree that its true.

But we have a big problem. As housing costs have risen, artists are finding it extremely difficult to live here. And as rent for commercial space has risen, studios and venues are disappearing. And we are losing our cool. And that’s a big problem.

We Need to Step Up and Help Out

 

I’m not an artist. I wish I were. Frankly, I don’t know that much about art. Those who know me well know I think the Gin Blossoms are the greatest American rock band of all time. Actually, I think that makes me an art afficianado. Because they rule.

While I may not have the highest end taste, I love art. I love going to live music shows. I love going to the Paramount and seeing talks or plays or music. I love going to the local art shows and studio tours. But we are going to lose those unless we take action soon.

The Austin Creative Alliance recognizes this issue. And it is trying to do something about it. Its mission is to advance, connect, and advocate for Austin’s arts, cultural, and creative communities to strengthen and protect the character, quality of life, and economic prosperity of our region. Its CEO John Riedie and the rest of its staff work tirelessly to ensure art remains a big part of living in Austin. Full disclosure – John is a very good friend of mine. But that doesn’t make that statement any less true. In its 47 years of service, ACA has sponsored over 400 cultural events and serves over 3000 artists annually.

So why write about this now? Because ACA’s The Arts are Elementary fundraiser is happening TODAY ONLY! It is a fundraising drive for the many arts organizations that ACA fiscally sponsors who are dedicated to enriching the school environment and/or the artistic lives of youth in Austin. This includes groups like the Austin Flamenco Academy and Ballet Afrique and the Glass Half Full Theatre. According to Riedie, “COVID hit arts funding particularly hard and many arts education programs are still struggling to bring their budgets back to full strength. This fundraiser is a great way to help close that gap so kids in Austin can continue to tap into their creativity.”

AND AGAIN – IT IS ONLY OPEN TODAY. IT CLOSES AT 6PM.

I am writing this, therefore, to ask you to donate to The Arts are Fundamental fundraiser. TODAY. The groups involved are so vital to giving the youths in our community an outlet for creativity. And I am putting my money where my mouth (or typing fingers) are. Bukowski Law Firm has pledged to match all donations up to $3500. Because its important. The arts are the lifeblood of our community.

And we are losing them. If things continue as they are, there is no telling what the Austin community will look like in 5, 10, 15 years. All I can tell you is that it will be a lot smaller and a lot less fun than it is today. And that makes things worse for all of us.

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keep out

An Adverse Situation can Get Worse

Leave a Comment / Property Disputes / By
  • Adverse possession can provide a trespasser a way to acquire land in opposition to a properly recorded title owner.
  • To do this, however, the trespasser must strictly comply with requirements set out by the Texas courts.
  • A property owner, therefore, must be diligent to make sure nobody is squatting on his or her land.

As you may have noticed, I like to mix up topics in this blog. Sometimes I talk about social issues affecting Central Texas. Sometimes its political heavy. And then sometimes – like this week – we nerd out on legal issues. But they are legal issues that can affect real estate owners. So hopefully you will love it as much as I do.

Did you know, therefore, that a person can legally acquire land that he or she has no legal interest in? As long as the person thinks he or she owns the land and controls it, he or she may be able to acquire legal ownership to it. And there would be nothing that the record owner could do about it.

If this seems crazy – its not. Its called adverse possession and that’s what we are going to talk about this week.

What is Adverse Possession?

 

People are generally familiar with adverse possession when its colloquially called “squatter’s rights.” Adverse possession allows a person who honestly entered and held possession of land he did not own to acquire that land – even if it legally belongs to someone else. If someone trespasses on land and the person holds the land, it can become his or her’s.

But Texas courts have a strict set of requirements for a trespasser to acquire land by adverse possession. Specifically:

  • The use by the trespasser must be open and notorious. This means that it must be clear the trespasser has occupied the land and it is not hidden from the title owner.
  • The trespasser’s use of the land must be hostile to the record owner. It cannot be from permission granted by the owner.
  • The trespasser must have actual use of the land. He or she has to be physically present on it.
  • The trespasser must have exclusive use of the land to the exclusion of anyone else.
  • And finally, the trespasser must continuously use the land for the statutorily required period. This varies depending on the type of claim being made but the most common is ten years.

See e.g., Glover v. Union Pac. R.R., 187 S.W.3d 201, 213 (Tex.App.-Texarkana 2006, pet. denied). See § 16.021(1) (West 2002)

If the trespasser can fulfill all of these requirements, he or she can go to the court and try to get legal title to the land in question.

Very Difficult to Have a Successful Claim

 

I am not writing this article to scare you, though. So please do not take it that way. Adverse possession is disfavored by Texas courts. As a result, the elements listed above are strictly enforced. And it is difficult for a claimant to make a successful adverse possession claim.

I want to give you an example because it came up in a lawsuit our client had recently. As I wrote above, some of the elements are that the use has to be open and notorious and exclusive. This has led to a whole area of litigation around fences and whether they are used to fulfill these requirements. But just having a fence around the property may not be sufficient to fulfill the elements of adverse possession. Because if the fence was there before the trespasser entered the property, then the trespasser did not do anything to show that his or her use of the land was hostile, exclusive, open and notorious, etc.

So for a fence to be adequate evidence, it has to have been erected by the trespasser. But what if there was partially a fence there previously? Or the trespasser repaired the fence? These are all questions that courts consider when determining whether a trespasser has fulfilled the elements of an adverse possession claim.

So filing an adverse possession claim is difficult. But its not impossible. It does happen. As a result, property owners need to be diligent to make sure nobody is squatting on their land. And if you do find someone who is on your land without your permission, give us a call. We can help make sure your land is protected.

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