EVICTION PRIMER FOR LANDLORDS

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EVICTION PRIMER FOR LANDLORDS

A PRIMER ON RESIDENTIAL EVICTIONS IN BEXAR COUNTY, TEXAS FOR LANDLORDS, OWNERS & PROPERTY MANAGERS — FAQ

By: Trey Wilson, San Antonio Real Estate Attorney

WHAT IS AN EVICTION? An “eviction” is a legal proceeding by which a property owner or that owner’s agent seeks to reclaim possession of premises and put the tenant or other occupants out. Eviction proceedings are usually referred to as “forcible entry and detainer” suits or “FE&Ds” for short. The party typically bringing an eviction lawsuit is a landlord or property owner (or their agent) whose property is occupied by tenants or other persons whose permission to possess the property has been terminated.

WHAT IS A “FORCIBLE DETAINER?” A person commits a forcible detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand. See Tex. Prop. Code § 24.001(a)

WHAT IS A “FORCIBLE ENTRY?” A forcible entry is: (1) an entry without the consent of the person in actual possession of the property; (2) an entry without the consent of a tenant at will or by sufferance; or (3) an entry without the consent of a person who acquired possession by forcible entry. See Tex. Prop. Code § 24.001(b)

WHO MAY BRING AN EVICTION ACTION? An individual plaintiff (non-corporation or other entity) may represent himself, or be represented by: (a) an attorney; or (b) an authorized agent. A corporation or other entity may be represented in an eviction case by: (a) an attorney; (b) an employee, owner, officer, or partner of the entity who is not an attorney; or (c) a property manager or other authorized agent. Though the law does not require an attorney to represent a plaintiff / owner/ landlord, but it is highly recommended that you have an experienced lawyer to assist you in the eviction process! See Tex. Prop. Code § 24.011; TRCP 500.4

IS A WRITTEN LEASE REQUIRED TO EVICT? No. A written lease is not required for eviction. Many times occupants of properties are there under oral agreements, or even without any right of possession at all. Sometimes, the occupants are former owners who were foreclosed, family members or romantic partners of the owner. There very rarely exist written leases in those situations.

WHAT ARE THE MOST COMMON REASONS TENANTS ARE EVICTED? Non-payment of rent The landlord must inform the tenant in writing that full rent is due by a specific deadline or the lease will be terminated. If the landlord refuses to accept full payment within this cure period and the tenant can prove it, the eviction can be challenged in court. After the deadline, the landlord doesn’t have to accept payment. Other tenant violations The landlord must inform the tenant in writing of the alleged violation of the lease. The tenant must have ample time to correct the problem. If the tenant does nothing to correct it, the landlord may evict. Lease has expired If the landlord doesn’t extend an expired lease and the tenant refuses to leave (i.e. a “holdover”), the landlord may evict. The tenant must be given written notice to vacate.

WHY ARE NON-TENANT OCCUPANTS EVICTED? Non-tenants can include former owners who lost the property to a foreclosure or trustee’s sale, squatters, or persons who were allowed to enter the property but now refuse to leave 9friends, family members, romantic partners). These persons are evicted on grounds that their right to occupy the property has been terminated by the owner.

WHERE DO I FILE AN EVICTION LAWSUIT IN BEXAR COUNTY? The justice court in the precinct in which the subject property is located has exclusive jurisdiction in eviction suits. The Bexar County Justice Court website contains a map that allows a party to search for the proper precinct based on property location. If the eviction is filed in a court other that the justice court in the precinct in which the property is located, the judge must dismiss the case. See Tex. Prop. Code § 24.004; TRCP 510.3(b).

WHAT MUST BE INCLUDED IN MY COMPLAINT FOR EVICTION? The complaint shall be sworn to under oath by the plaintiff, and must:

• state the name of the plaintiff, and if applicable, the name of the plaintiff’s attorney;

• state the address, phone number, and fax number (if any) of the plaintiff or the plaintiff’s attorney;

• state the name, address and telephone number of the defendant(s);

• state the amount of money, if any, that the plaintiff seeks;

• describe the lands, tenements or premises, the possession of which is claimed, with sufficient certainty to identify the same (including an address);

• state the facts and grounds which entitle the Plaintiff to possession;

• describe when and how notice to vacate was delivered;

• state the total amount of past-due rent at the time of filing;

• state whether attorneys’ fees are being sought; • describe any other relief being sought by the plaintiff; and • state whether the plaintiff consents to email service of the answer and other pleadings of the defendant.

See TRCP 502.2; 510.3(a)

WHO MUST BE NAMED AS DEFENDANT(S)? If the eviction is based on a written residential lease, the plaintiff must name as defendants all tenants obligated under the lease who reside at the premises and whom the plaintiff seeks to evict. No judgment may be entered against a tenant obligated under a lease and residing at the premises who is not named in the petition and served with citation. See TRCP 510.3(c)

AM I ENTITLED TO HAVE A JURY HEAR MY EVICTION CASE? Any party can request a jury trial by filing a written demand and paying the applicable jury fee at least 3 days before trial. However, jury trials are rare in eviction cases, and if no jury is timely demanded by either party, the trial will be by judge (“bench trial”). See TRCP 510.7(b)

WHAT NOTICE IS REQUIRED PRIOR TO FILING FOR EVICTION? If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days’ written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days’ written notice to vacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. If a building is purchased at a tax foreclosure sale or a trustee’s foreclosure sale under a lien superior to the tenant’s lease and the tenant timely pays rent and is not otherwise in default under the tenant’s lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days’ written notice to vacate if the purchaser chooses not to continue the lease. Before a foreclosure sale, a foreclosing lienholder may give written notice to a tenant stating that a foreclosure notice has been given to the landlord or owner of the property and specifying the date of the foreclosure. If the occupant is a tenant of a person who acquired possession by forcible entry, the landlord must give the person at least three days’ written notice to vacate before the landlord files a forcible detainer suit. The notice period is calculated from the day on which the notice is delivered. See Tex. Prop. Code § 24.005.

HOW MUCH NOTICE IS REQUIRED IF THE OWNER GRANTED POSSESSION, THERE IS NO LEASE OR OTHER AGREEMENT GOVERNING OCCUPANCY, AND NO RENTAL OBLIGATION? This issue usually arises when a friend, lover or family member is voluntarily granted possession (with or without the owner also occupying the property), but there exists no lease or other documentation reflecting the terms of occupancy, and the person is not required to pay rent. Stated simply, this is not a typical landlordtenant relationship and requires a degree of a judgment-call. The requirements for a notice to vacate under Texas Property Code Section 24.005 apply to this situation, and are not automatically altered because of the relationship between the parties or the manner in which the occupant was granted access. However, my experience is that Bexar County justice courts tend to view this situation as one involving an “oral lease” with a month-to-month term that must be “terminated” prior to the occupant being evicted. In an abundance of caution based upon that experience, we typically (and reluctantly) recommend that a 30 day notice of “termination” and to vacate be issued in this situation so as to comply with the provisions of Tex. Prop. Code § 91.001 and Tex. Prop. Code § 24.005(a) (requiring compliance with the tenancy termination requirements of section 91.001). On more than one occasion, I have seen a court rule that 3 day notice to vacate is insufficient since the defendant-occupant was voluntarily granted access to the premises and did not commit a forcible entry or detainer.

NOTE: My personal opinion (which does not seem to be shared by a majority of the Bexar County justices of the peace, whose opinion is what really counts) is that this situation creates a tenancy at will under Texas law. Section 24.005(b) requires that a tenant at will be given only 3 days notice to vacate before filing an eviction suit. A tenant at will is one who is in lawful possession of premises by permission of the owner or landlord and for no fixed duration. See Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.–El Paso 1994, writ denied); Virani v. Syal, 836 S.W.2d 749, 751-52 (Tex. App.–Houston [1st Dist.] 1992, writ denied); Black’s Law Dictionary 1604 (9th ed. 2009). “A tenant at will, in contrast to a tenant at sufferance, possesses the property with the owner’s consent.” ICM Mortgage, 902 S.W.2d at 530. A tenancy at will is terminable at the will of either party upon fair notice. See ICM Mortgage, 902 S.W.2d at 530; Black’s Law Dictionary 1604 (9th ed. 2009). Again, this view us a legalistic one, and the Bexar County JPs (in my humble opinion) tend to emphasize practical fairness over the letter of the law. As such, please see the recommendation above, which is the more conservative approach.

HOW MUCH NOTICE IS REQUIRED IF THE PARTY IN POSSESSION IS THE FORMER OWNER WHO LOST THE PROPERTY TO A FORECLOSURE / TRUSTEE’s SALE? Typically three (3) days. Texas Courts have routinely held that the language of the “tenant at sufferance clause” contained in most deeds of trust creates a landlord-tenant relationship between the new owner (as landlord) and the former owner/occupant (as tenant). Tenants at sufferance are entitled to 3 days notice to vacate under Section 24.005(b). See Tex. Prop. Code § 24.005(b)

HOW MUCH NOTICE IS REQUIRED IF THE PARTY IN POSSESSION IS A TENANT UNDER A LEASE WITH A FORMER OWNER WHO LOST THE PROPERTY TO FORECLOSURE / TRUSTEE’s SALE? If a building is purchased at a tax or trustee’s foreclosure sale and a tenant under a lease (with the former owner) timely pays rent and is not otherwise in default under the lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days’ written notice to vacate if that purchaser chooses not to continue the lease. The tenant is considered to timely pay the rent if, during the month of the foreclosure sale, he pays the rent for that month to the landlord (former owner) before receiving any notice that a foreclosure sale is scheduled, or pays the rent for that month to the new owner within 5 days after receiving written notice of the name and address of the new owner that requests payment. See Tex. Prop. Code § 24.005(b)

HOW SHOULD THE NOTICE TO VACATE BE DELIVERED? The notice to vacate shall be given in person or by mail at the premises in question. Notice in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question. If the dwelling has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to leave the notice to vacate on the inside of the main entry door, the landlord may securely affix the notice on the outside of the main entry door. See Tex. Prop. Code § 24.005(f).

WHAT IS THE FILING FEE FOR AN EVICTION SUIT? The filing fee for an eviction is currently $41.00 in Bexar County, Texas. A service fee of $75.00 per Defendant is also charged at the time that suit is filed ($75.00 serves one person). Thus, the total cost to file an eviction suit against a single defendant is currently $116.00. Filing fees are charged on a per-case basis, irrespective of the number of defendants. Service fees are charged per-person, meaning that the service fee of $75.00 must be multiplied by the number of defendants.

WHEN / HOW WILL THE COURT LET ME KNOW THE TRIAL DATE FOR MY EVICTION SUIT? At the time of filing of an eviction complaint (i.e. the petition or suit papers), the Clerk of the Justice Court will issue a printed receipt. The receipt will include the case number and the court trial date. That is, the trial is automatically set at the time that the eviction suit is filed.

WHAT TYPE OF NOTICE WILL THE TENANT OR OCCUPANTS RECEIVE ONCE THE EVICTION IS FILED? The Court will automatically issue a citation to the defendant(s) named in the complaint commanding him/her/them to appear before the Justice of the Peace on the assigned court date. A copy of the complaint (the eviction suit) will be attached to the citation and both the citation and the attached complaint will be served upon the defendant(s) by the Constable’s Office for the precinct in which the suit is filed. See TRCP 510.4(b)

IS THE DEFENDANT REQUIRED TO FILE AN ANSWER OR APPEAR IN THE CASE BFORE TRIAL? No. The defendant may, but is not required to, file a written answer. A defendant electing to file a written answer may do so on or before the trial date. The defendant is required to appear at trial, but not any time prior thereto. See TRCP 510.6(b)

WHEN WILL THE EVICTION LAWSUIT BE CALLED FOR TRIAL? An eviction trial will be had after the passage of at least six (6) days from the date the citation is served to the defendant by the constable. See TRCP 510.7(a)

WHAT HAPPENS IF ONE PARTY DOES NOT APPEAR FOR TRIAL? Should the plaintiff/landlord fail to appear at the hearing, the case may (and almost certainly will) be dismissed, or there may be a judgment entered for the defendant. Should the defendant/occupant fail to appear, the allegations of the complaint must be taken as admitted, and judgment by default rendered in favor of the Plaintiff. See TRCP 510.6(b)

WHAT ISSUES WILL THE JUSTICE COURT DETERMINE IN AN EVICTIONS LAWSUIT? The issues to be decided in an eviction suit are limited to determining which party has a superior right to possession of the property, and under some circumstances, the amount of past due rents. See TRCP 510.3(e)

WHAT DOCUMENTS OR EVIDENCE SHOULD I BRING TO COURT AT THE TIME OF TRIAL? Like other lawsuits, eviction suits are determined on the basis of evidence – that is, witness testimony and documents. A landlord or property manager pursuing eviction of a tenant should always bring a copy of the lease, a copy of the notice to vacate, evidence supporting the reason for the eviction (in the event of non-payment of rent a legder showing the amount due), relevant communications or photographs, and a copy of the deed demonstrating ownership. Property managers should also bring a copy of the Management Agreement reflecting their authority to act as the owner’s agent. In post-foreclosure eviction cases, the new owner/plaintiff should bring a copy of the Trustee’s / Substitute Trustee’s Deed (when available), the receipt from the Trustee’s Sale, a copy of the Deed of Trust that the former owner signed when he/she first purchased the property (this is public record), and a copy of the notice to vacate. If copies of written communications (including emails and text messages) with the occupants exist, bring them too.

NOTE: All documentary evidence (including photographs, emails and text messages) should be printed and presented in hard copy. The judge will not view evidence contained on a phone, tablet or computer. Notably, the rules of evidence do not apply to J.P. cases, and documents or testimony that would not be admissible in other courts (not proved up, hearsay, etc.) is often considered in justice court, including eviction suits.

WHAT IF THE TENANT CLAIMS THAT THE LANDLORD HAS FAILED TO MAKE REPAIRS OR THAT THE PROPERTY IS IN POOR CONDITION? This claim is not proper and cannot be considered by the Court within an eviction case. A tenant may assert a failure to repair claim against the landlord in a separate lawsuit brought in a court of proper jurisdiction. See TRCP 510.3(e)

CAN I RECOVER MY COSTS FOR FILING THE SUIT? Yes. The prevailing party in an eviction proceeding will generally be awarded costs, particularly if they are prescribed by a written lease agreement. This award is contained in the Judgment awarding possession, and is subject to collection the same as any other civil judgment. However, many times these judgments are worthless because the defendant is judgment-proof.

CAN I RECOVER ATTORNEYS’ FEES FOR FILING THE SUIT? It depends. Attorneys’ fees are generally awarded under two sets of circumstances, as follows: To recover attorney’s fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord’s premises a written demand to vacate the premises. Generally, the written demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney’s fees. This demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed. If the landlord gives the notice described above, or if a written lease entitles the landlord to recover attorney’s fees, a prevailing landlord is entitled to recover reasonable attorney’s fees from the tenant.

NOTE: A prevailing tenant is not required to give notice in order to recover attorney’s fees. See Tex. Prop. Code §§ 24.005(f); 24.006; TRCP 510.8 (b, c).

CAN I RECOVER PAST-DUE RENT IN AN EVICTION SUIT? Yes. A suit for past-due rent may be joined with an action of forcible entry and detainer, wherever the suit for rent is within the jurisdiction of the justice court (i.e. damages are less than $10,000.00). The court rendering judgment for possession may at the same time render judgment for any rent due the landlord by the tenant. If the complaint for eviction includes a suit for unpaid rent, the plaintiff/landlord must clearly state (in the suit papers or an attached affidavit) the amount of past-due rent being sought, and should reserve the right to include any additional rents that may become due during the time that the suit is pending. See TRCP 510.3(d); 510.8(b).

CAN I RECOVER LATE FEES FOR UNPAID OR LATE RENT? No. Justice courts considering eviction suits may not render judgment for late fees, even where such fees are agreed-upon in a written lease. The only issues to be decided in an eviction case are the right to actual possession and a landlord’s properly stated claim for rent. See TRCP 510.3(e)

WHAT AWARD WILL THE EVICTION JUDGMENT CONTAIN IF THE PLAINTIFF / OWNER/ LANDLORD WINS? If the ruling (or verdict) is in favor of the landlord, the Court shall give judgment for the landlord for possession of the premises, costs, and damages; and he shall award his writ of possession, if separately requested with all applicable fees paid. See TRCP 510.8(b)

WHAT IF THE COURT RULES IN FAVOR OF THE DEFENDANT? If the judgment is in favor of the Defendant (the tenant or occupant), the justice shall allow the tenant to retain possession and adjudge against the landlord/owner the tenant’s costs and attorneys’ fees, if recoverable by law. See TRCP 510.8(c)

IS THE JUSTICE COURT RULING FINAL? A Judgment of the Justice Court becomes final unless it is properly appealed within five (5) days. If the eviction Judgment is timely and properly appealed, including by posting of a bond and paying all prescribed rents into the court registry, the Justice Court’s Judgment is stayed until the county court considers the appeal. When the appeal is perfected, the Justice Court will stay further proceedings and file the transcript in the county clerk’s office.

HOW LONG DOES IT USUALLY TAKE TO PROCESS AN EVICTION IN THE JUSTICE COURT? In my experience, eviction proceedings in Bexar County usually take approximately four to five weeks, but can proceed quicker or more slowly based upon the Court’s availability and caseload. Based upon my experience, a fair estimate of the time it takes to complete the average residential eviction is as follows:

• 4 – 5 days from delivery of notice to vacate to filing of suit.

• 3 – 5 days from filing of suit to serve the citation.

• 10 -15 days from service of citation to trial. NOTE: Texas law requires the defendant have at least six days notice before the trial.

• 5 days after trial before Justice Court Judgment is final and nonappealable.

Every case is different, and so are each of the 4 precincts in Bexar County. Thus, the foregoing are general guidelines only.

CAN THE OWNER / LANDLORD APPEAL A JUSTICE COURT RULING? Yes. After the trial in the Justice court, either party has five (5) calendar days to appeal the judgment by filing a Notice of Appeal and Appeal Bond with the Justice Court. There are filing fees and other costs associated with an appeal. See TRCP 510.9

TO WHOM IS AN EVICTION JUDGMENT APPEALED? Appeals of Justice Court rulings are appealable to the county court of the county in which the judgment is rendered. In Bexar County, this is another court situated at another courthouse (the Bexar County Courthouse). Eviction Appeals are assigned new cause numbers upon acceptance by the County Court.

WHAT GROUNDS OR EVIDENCE WILL THE COUNTY COURT REVIEW ON APPEAL? Trial of the eviction lawsuit will be de novo in County Court. A trial de novo is a type of appeal in which the appeals court (County Court in the case of evictions) holds a trial as if a prior trial had never been held. Accordingly, neither the ruling of the justice court nor the evidence or testimony presented below are considered by the county court. See TRCP 510.10(c)

WHAT DAMAGES ARE AVILABLE IN AN EVICTION APPEAL? On appeal to the county court, the court will determine possession and rent due, if a prevailing landlord/owner properly pleads and proves past-due rent. In addition, either party may recover damages, if any, suffered for withholding or defending possession of the premises during the appeal. These damages may include, among other things, loss of rentals during the appeal and attorney fees in the justice and county courts. Only the party prevailing in the county court will be entitled to recover damages against the adverse party. The prevailing party will also be entitled to recover court costs and to recover against the sureties on the appeal bond in cases where the adverse party has executed an appeal bond. See TRCP 510.10(c)

Edited 8/27/16

Trey Wilson is a real estate attorney practicing in San Antonio, Texas. He routinely represents landlords, owners, lenders and property managers in residential eviction lawsuits in the Bexar County Justice Courts and in eviction appeals to the County Court. His evictions practice includes post-foreclosure evictions on behalf of investors and for lender REOs. Mr. Wilson does not represent tenants in residential evictions. Most residential eviction cases can be handled on a flat fee basis.