You spent a lot of time and money buying a property and preparing it as a rental as an extra income source.
But your tenants haven’t paid the rent. Now what?
There are several common issues that landlords face when trying to evict a tenant.
Improper Notice
Under the Texas Property Code, there are specific approved ways to give a tenant a notice to vacate:
- IN PERSON. If this is your only method, then the person who served it will need to testify at the eviction hearing,
- OR BY MAIL (Regular or Certified),
- OR BY AFFIXING THE NOTICE to the outside of the entry door in a sealed envelope containing the notice with the tenant’s name and address AND the words “IMPORTANT DOCUMENT” IN ALL CAPITAL LETTERS and mailing the notice the same day (Practice Note – Always take a copy of the notice affixed to the door clear enough to show that you have the proper wording on the envelope).
A key issue is that if you don’t give the notice exactly as the Property Code requires, then your case can be dismissed by the Justice Court and you will have to start all over and it will delay your obtaining possession of your property. I always send the notice by certified mail and take the copy of the evidence of the certified mail with me to court. We also send a copy by regular mail.
Inaccurate Petition
If you are filing for rent then make sure the petition states that in the correct place on the petition; if you are filing for any other reason, make sure that the petition states that in the correct place as well.
Military Status
You must file an affidavit stating that you have checked and the person is not in active military duty. The defense department has a website where you can check it and provide a copy of the result. https://www.servicememberscivilreliefact.com/about-us/military-status-verification/#:~:text=To%20obtain%20proof%20of%20military,at%20www.ServicemembersCivilReliefAct.com
The difficulty is that you must know either the birth date or Social Security Number of the evictee. Hopefully anyone leasing to tenants will get an application that includes both the birth date and the Social Security Number. When eviction follows a foreclosure, the buyer at a foreclosure sale may not know this info. A skip tracing search may be necessary to get that information. (For more information, see https://www.serve-now.com/resources/skip-tracing#:~:text=Skip%20tracing%20is%20the%20act,act%20of%20tracking%20them%20down
Evidence
Make sure you have a ledger evidencing the outstanding amounts owed. If the tenant provides a challenge to what you are claiming, you are required to provide your ledger.
Starting Over
If the Justice Court determines that you have not followed the proper procedures, you must start over, beginning with creating a new notice to vacate.
How long does it generally take to get a tenant out of the property from start to finish when evicting a tenant?
The landlord must give a written notice to vacate, which is three days or, if attempting to get attorney fees, 10 days.
Only after the notice to vacate period expires, then you can file your petition for forcible entry and detainer with the Justice Court. Generally, a hearing will be set within 10 days of filing.
At the hearing you will be asked to present the Notice to Vacate to the court for review. If you do not have it, they will dismiss your case. The evictee may have an attorney who may want to review all of your documents to make sure they comply with the Property Code.
If the hearing is successful and judgment is issued in your favor, the tenant has five days to file an appeal. (To appeal, either a bond set by the judge must be paid or an Inability to Pay Affidavit must be filed).
After these five days, if no appeal, you can request a writ of possession to be issued and served to the constable office.
The constable office will generally notify the tenant within 10-20 days that they are going to be set out within 24 hours.
Landlord must set the furniture and belongings out while the constable is there keeping the peace. (WARNING: DO NOT ENTER THE HOUSE BEFORE THE CONSTABLE OR YOUR WRIT OF POSSESSION IS INVALIDATED.)
The bottom line is that, if there is no appeal, it generally takes 30 days or so to get a tenant out of the property.
If, however, the tenant appeals, the Justice Court will send the file to the County Courts at law and a specific court will be appointed to hear the case. That will probably add about another 20 days or so. (If a jury trial is requested, probably then at least 30 days.) If Judgment is entered for the landlord at the County Court, then the five days period for further appeal applies before the landlord can get the writ of possession.
So if there is an appeal, it generally can take 60 days or longer to get a tenant out of the property.
What documentation is required when evicting a former owner following a foreclosure?
First and foremost, you must be able to prove your ownership of the property, which grants you the right to evict the tenant. If I am evicting an occupant following a foreclosure, I generally try to get a certified copy from the county of the recorded Trustee’s Deed or Sheriff’s to my client and submit that as an exhibit. Sometimes a regular copy is sufficient, but I like to err on the safe side.
Your client must appear to testify at County Court, which is not as informal as a Justice Court hearing.
Additional document you may need includes the following:
- Ledger evidencing the amounts due, if requesting judgment for rent
- Notice to Vacate and evidence of service
- Military Affidavit
Do many tenants appeal the Justice Court’s Judgments? What do they have to do in order to appeal?
In the last couple of years (since the pandemic), I don’t recall more than perhaps one case in which the tenant did not appeal. Generally, these appeals are based upon the filing of an Inability to Pay Affidavit. You can challenge the tenant’s inability to pay in a separate hearing, but this is very difficult. I don’t advise using this tactic because it simply extends the time to get to the county court and get a final judgment.
If you are the unfortunate landlord who is facing this common situation of a tenant not paying the rent, or a prior owner refusing to vacate, we will be glad to help.
Gaylene Rogers Lonergan, Real Estate Attorney | 214-503-7509 | lonerganlaw.com | grogers@lonerganlaw.com
© Gaylene Rogers Lonergan and Lonergan Law Firm, PLLC, 2024. All rights reserved. This article is provided for educational reasons exclusively and is not meant to be construed as legal advice. The Lonergan Law Firm, PLLC, will represent you only after being retained and that agreement is made in writing.
