Owner Not Required to Give Resident Opportunity to Cure Criminal Conduct

Facts: A site owner gave a resident notice that it was terminating his lease at the end of the monthly renewal period. According to an incident report prepared by site staff, contracted janitorial staff were “traumatized” after seeing the resident “expose himself” by “walking outside of his apartment at 11:08 PM [on April 5] completely nude.” The following day, he received a notice of violation, stating that management had received a report that he had exposed himself to the “cleaning crew last night” and that management had “footage of [him] wearing a towel in the hall and taunting them.”

In July 2017, the management gave him another written notice stating that he had “ten days in which to cure” certain types of conduct, including “[i]ntimidation and harassment of our cleaning vendors; specifically, standing out in the hall in a towel, staring at them aggressively and making them uncomfortable.” In his testimony at trial, the resident denied that he had ever exposed himself and pointed out that the videotape of him shows him wearing a towel in the hallway.

The lease provided that the resident’s tenancy would automatically renew on a month-to-month basis at the expiration of its initial term until terminated in accordance with the lease. The lease also stated that the site couldn’t terminate his tenancy or refuse to renew the lease except for: “serious or repeated violations of the terms and conditions of the lease”; “violation of applicable Federal, State, or local law”; “completion of tenancy period for transitional housing”; or “other good cause.” Similarly, the lease prohibited the resident from engaging in specific activities, including “criminal conduct” and “disturbing or threatening the rights, comfort, health, safety, or convenience of others (including [site’s] agents and employees) in or near the apartment community.”

After the resident failed to vacate, the site sued to evict him. The court ruled in favor of the owner, awarding it possession of the property, and the resident appealed. In the appeal, the resident didn’t dispute the owner’s claim that he “intimidat[ed] and harrass[ed] our cleaning vendors” and that would, under certain circumstances, constitute “good cause” for terminating his lease.

Instead, he argued that this claim doesn’t constitute “good cause” in this case because: (1) it refers to the first incident with the janitorial staff; (2) he was entitled to an opportunity to cure this conduct; and (3) the evidence shows that he effectively cured this conduct by not engaging in it again after receiving notice the following day. In making this argument, the resident relied on the following lease provision: “Prior to serving the thirty-days notice to terminate or refusal to renew the tenancy on the Tenant, Owner must provide Tenant with at least a ten-day opportunity to cure any alleged lease violation with the exception of lease violations based on drug activity; serious, violent criminal activity; or other serious criminal activity.”

Ruling: A Texas appeals court ruled that resident’s conduct toward janitorial staff constituted material noncompliance with lease and criminal activity.

Reasoning: The court stated that the owner wasn’t required to give the resident an opportunity to cure his conduct toward the janitorial staff before it could properly terminate his lease. Under state law, he had committed the criminal offense of indecent exposure. Having reviewed the evidence under the applicable standard of review, including the incident report, the court concluded that the evidence was sufficient to support the trial court’s implied findings that the resident committed the criminal offense of indecent exposure, and that consequently, his violation of the lease was based on “serious criminal activity,” such that the owner wasn’t required to give the resident an opportunity to cure the conduct. The resident’s conduct toward the janitorial staff could properly serve as “good cause” for termination of his lease, despite the fact that he may not have committed this specific conduct again after receiving notice that owner considered it to be a lease violation.

• Almon v. Skyline Terrace Apts., December 2018