The #1 Mistake Landlords Make In Eviction Suits
I see it every time I appear in Justice Court. An unwitting, pro se Landlord loses his eviction case based on insufficient Notice to Vacate (NTV).
The culprit is almost always one of the following:
- Failing to properly deliver the NTV at least 3 days prior to filing the eviction petition; OR
- Failing to produce sufficient evidence that the NTV was delivered to the tenant in strict compliance with the law.
Undoubtedly, some deficiency in delivering the NTV is the leading cause of Landlords losing eviction suits –even when there is little doubt as to a Tenant’s lease breaches.
Law Governing Notice to Vacate – TPC 24.005
Texas Property Code Section 24.005 governs Notices to Vacate Prior to Filing an Eviction Suit. That Section’s various subsections provide, in relevant part:
(a) If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults …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.
(f) Except as provided by Subsection (f-1), 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.
(f-1) As an alternative to the procedures of Subsection (f), a landlord may deliver the notice to vacate by securely affixing to the outside of the main entry door a sealed envelope that contains the notice and on which is written the tenant’s name, address, and in all capital letters, the words “IMPORTANT DOCUMENT” or substantially similar language and, not later than 5 p.m. of the same day, depositing in the mail in the same county in which the premises in question is located a copy of the notice to the tenant if:
- the premises has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to affix the notice to vacate to the inside of the main entry door; or
- the landlord reasonably believes that harm to any person would result from personal delivery to the tenant or a person residing at the premises or from personal delivery to the premises by affixing the notice to the inside of the main entry door.
Mistakes Landlords Make
Many Landlords email or text “notice” to vacate to their tenants. Others tape the notice to the outside of the front door of the rental premises. A few furnish only verbal demand that the tenant vacates.
NONE of these are sufficient notice under Section 24.005.
In some cases, Landlords properly provide notice by mail. However, on the day of trial they inexplicably fail to provide proof of mailing. This failure will likely result in the eviction suit being dismissed.
Proper Delivery of NTV is Jurisdictional
Delivery of the Notice to Vacate in strict compliance with Section 24.005 is jurisdictional. This means that the Judge cannot entertain a landlord’s eviction suit in the absence of such notice.
This is true, even if the tenant is 100% in violation of their lease and admits it.
A Landlord cannot and will not win an eviction lawsuit in the absence of proof that a Notice to Vacate was delivered in struct compliance with Section 24.005 of the Texas Property Code. The Landlord bears the burden of proof on the issue of notice. This means that the Landlord must provide evidence to the Court that notice was delivered in the manner described by Section 24.005(f).