3 CRITICAL PIECES OF EVIDENCE EVERY LANDLORD SHOULD TAKE TO EVICTION COURT

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28
Apr

3 CRITICAL PIECES OF EVIDENCE EVERY LANDLORD SHOULD TAKE TO EVICTION COURT

Eviction Attorney In San AntonioEviction cases are intended to be simple. The sole issue in a forcible detainer suit is who has the right to immediate possession of the premises. Fandey v. Lee, 880 S.W.2d 164, 168 (Tex.App.-El Paso 1994, writ denied); Cuellar v. Martinez, 625 S.W.2d 3, 5 (Tex.Civ.App.-San Antonio 1981, no writ); Johnson v. Highland Hills Drive Apartments,552 S.W.2d 493, 495 (Tex.Civ.App.-Dallas 1977), writ ref’d n.r.e. per curiam, 568 S.W.2d 661 (Tex.1978).

Savvy tenants and their lawyers can confuse and complicate evictions with crafty legal arguments.  Don’t fall into their trap as a Landlord. Be sure to bring there 3 pieces of evidence to court on the day of trial in your eviction lawsuit:

PROOF OF OWNERSHIP OR MANAGEMENT OF THE RENTAL PROPERTY

As the Plaintiff, the Landlord bears the burden of proof on all essential elements of an eviction claim. To prevail in a forcible detainer action, a Landlord- plaintiff is required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession.

Don’t assume that the Judge will believe your testimony that you are the Owner or Property Manager. If the tenant questions your ownership or authority, you must be prepared to show documentary proof. Bring a copy of the Deed (available online) showing ownership of the Property. Property Managers should also be prepared to show the Property Management Agreement entered with the owner.

COPY OF THE LEASE

You say rent is due on the 1st. The tenant testifies that it isn’t payable until the 5th. Even worse, the tenant denies that they are a tenant at all.

A forcible detainer action must be based on a landlord-tenant relationship. See See Rice v. Pinney, 51 S.W.3d 705, 712 (Tex.App.-Dallas 2001, no pet.)

Avoid swearing matches and uncertainty by presenting a complete, signed copy of the lease to the Court. This resolves conflicting testimony and conclusively establishes the terms of your agreement with your tenant.

COPY OF YOUR NOTICE TO VACATE WITH 1ST PERSON PROOF OF DELIVERY

Under Texas Property Code section 24.002, a tenant commits a forcible detainer by refusing to surrender possession of real property after the landlord has lawfully terminated the tenant’s right to possession. See TEX. PROP. CODE ANN. § 24.002(a). Section 24.002 also provides that a landlord must make a written demand for possession and comply with section 24.005‘s requirements for a notice to vacate. Id. § 24.002(b).

Because forcible detainer is a statutory cause of action, a landlord must strictly comply with its requirements. See Perkins v. Group Life & Health Ins. Co., 49 S.W.3d 503, 506 (Tex.App.-Austin 2001, pet. denied) (noting that because relevant cause of action derives from statute, not common law, “the `statutory provisions are mandatory and exclusive and must be complied with in all respects'” (quoting Employees Ret. Sys. of Tex. v. Blount, 709 S.W.2d 646, 647 (Tex.1986))).

Proper and timely service of the Notice to Vacate is the favored technical battleground of “tenant’s Rights” attorneys.

I have seen numerous eviction lawsuits dismissed because the Landlord failed to timely and properly deliver the NTV in strict compliance with Section 24.005. In other cases, the NTV was properly delivered, but the person who personally delivered it was not in the courtroom (“My employee/brother/cousin delivered it”).

Tenants will deny receipt of the NTV.  Meet your burden of proof by bringing the person who actually delivered the NTV to Court. At a minimum, have them sign a sworn and notarized affidavit concerning date, and manner of delivery.  Without this proof, your eviction suit may be dismissed, or worse…