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Should Tenants use Property without Paying Rent? Navigating the Minefield of Eviction Procedures in Texas

By Racy Haddad, Haddad Legal Group P.C.

Board Certified in Residential Real Estate

In his New York Times bestseller “Evicted” Matthew Desmond, a Pulitzer Prize winner, chronicles the link between poverty in middle America and its direct correlation to evictions. Desmond walks the reader through the lives of low-income families across America who have suffered through the eviction process. It is often heart-wrenching.

Likewise, however, Landlords who are property owners often suffer an arduous legal process in dealing with a tenant who has remained in possession of real property after a lease has ended (“Holdover Tenant”) or who defaults in the payment of rent during the term of a lease and remains in possession of the property (“Defaulting Tenant”). While residential and commercial tenancies are often handled differently, this article explains some of the general steps that a landlord must take to remove a Holdover Tenant or a Defaulting Tenant.

In Texas, the legal term for an eviction suit is a Forcible Detainer and the procedures for evictions are set forth in Chapter 24 of the Texas Property Code (“Code”). Under the Code, eviction suits must be filed in the Justice of the Peace Courts and the sole issue before such court is the Tenant’s or Landlord’s immediate right to possession of the property. No other issues will be heard or decided by the Justice Court in a forcible detainer suit.

If a landlord fails to follow the statutory requirements under the Texas Property Code, their case may be forestalled until they follow the necessary requirements.

Proper Notice to Vacate

The eviction process begins with giving a tenant under a written lease or oral rental agreement proper notice to vacate the premises. In Texas, the landlord is required to give 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 as set forth in the lease. See Texas Property Code 24.005(a).

The notice to vacate should be delivered by both personal delivery or by mail at the premises in question. Notice in person may be by personal delivery to the tenant or personal delivery to the premises and affixing the notice to the inside main entry door. Notice by mail may be by regular or certified mail to the premises in question. See Texas Property Code 24.005(f).

Forcible Detainer Lawsuit

After the proper legal notice to vacate is given, the eviction lawsuit should be filed with the Justice of the Peace court in whose precinct the property is located. At the hearing, the judge will determine which party has the right to possession of the Property and what costs of suit damages for unpaid rent will be awarded to the landlord. These are the only issues to be considered by the court. A counterclaim by the tenant is not permitted in a forcible detainer suit.

Appeals

Depending on the outcome of an eviction suit in the Justice Court, the losing party may appeal the ruling. After 5 days, the losing party may appeal the Justice Court’s judgment to the County Court at Law in the county where the property is located. The appeal results in the file being transferred to the County Court at Law where it will be heard as a new case (de novo). Why is this so? It results from an interesting historical quirk: the Justice Court is not a court of record. No transcript is kept of the proceedings or testimony. So everything starts over.

During a residential forcible detainer case in Justice Court, the Court will set a cash appeal bond which may be three times the monthly rent. Either party may then contest the amount of the bond within five days. Tex. Prop. Code Section 24.00511.

If a tenant in a residential eviction suit is unable to pay the costs of appeal or file an appeal bond as required by the Texas Rules of Civil Procedure, the tenant may appeal the judgment of the Justice Court by filing with the Justice Court, not later than the fifth day after the judgment is signed, a pauper’s affidavit sworn before the clerk of the Justice Court or notary public that states that the tenant is unable to pay the cost of appeal or file an appeal bond. Tex. Prop. Code Section 24.002.

If County Court takes over the case, the tenant may be obliged to begin making monthly rental payments to the court and continue to do so during the pendency of the appeal. If the tenant fails to do this (and most do) the landlord may seek immediate possession from the county court based on motion pursuant to Texas Rule of Civil Procedure 510.9(c)(5)(B), which permits a tenant to remain in possession only so long as the certain requirements are met.

If the tenant does not appeal a Justice Court ruling within five days of the judgment, the judgment of the Justice Court becomes final. Writ of Possession Upon a final judgment from the court having jurisdiction the prevailing party will be entitled to a

Writ of Possession

The Writ of Possession shall order the officer executing the writ to:

1. Post a written warning on the front door of the rental unit and that the write will be executed on or after a specified date and when the writ is executed

2. Deliver possession of the premises to the landlord and instruct the tenant and all persons to leave the premises immediately and if the persons failed to comply, physically remove them.

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