Tenant Eviction in Texas

by Steve Crossland, REALTOR in Austin TX on March 29, 2008 · 185 comments

Texas Eviction
I had to file eviction in JP Court on one of my tenants this month. I’ve evicted more than 80 tenants in Austin since 1990, but it’s been about 4 years since my last one. In the old days (the 1990’s) when I managed 4-plexes and some lower end properties, eviction filings were more frequent. Now that we don’t handle low-end properties, it’s not often we have to evict a tenant.

What’s involved in evicting a tenant in Texas?
The following is an outline of the basic steps for tenant eviction as I perform them. This is not legal advice, but an overview of the administrative steps and my personal experience. For legal advice, contact an attorney.

1) Make Sure You Have a Good Lease Agreement
It all starts with a proper lease agreement. A TAR (Texas Association of Realtors) or TAA (Texas Apartment Association) lease will properly protect your rights as a landlord and afford the necessary legal language. If you hire a Realtor to lease your property, you’ll have a TAR lease. You can join TAA as an individual, but many single-property owners find the dues to be high (though I’ve seen landlord boo-boos that would have paid 10 years TAA dues). Otherwise, have a good real estate attorney provide a lease for you if you are a do-it-yourself landlord. Why is this important?…

The worst lease I ever saw was an office supply store special that afforded the tenant a 30 day grace period to pay rent (because the owner filled “30” days into that blank not knowing any better) followed by a 30 day “cure” clause (same thing, clueless owner filled in a blank with “30”).

This meant the tenant had to be 30 days late before a “demand to cure” (as the lease termed it) letter could be sent, then the demand letter had to give another 30 days to cure. After taking over that property from the owner, whom the “professional deadbeat” tenant was running circles around and was already more than two month’s behind in rent, I had to send the demand letter (which the owner had not done because she was afraid of conflict) and wait 30 days before sending a Notice to Vacate. It took another three weeks after that for the court date, and another 5 days which the court provides to appeal or vacate. Then the tenant finally vacated, leaving the home trashed with litter and junk furniture.

That owner lost a total of 4 month’s rent plus damages by the time it was said and done. How much do you think the owner “saved” by using that cheap office supply store lease and not seeking help from an attorney or a professional leasing agent? The owner also told ne that no credit report or eviction search or criminal background check was done on the tenant. “She seemed like a perfectly nice young lady” the owner told me. Deadbeat tenants are experts at seeming to be nice people, and they only seek rentals from do-it-yourself landlords who they know won’t check them out properly. But I’m drifting into another topic, tenant screening, so back to the eviction process …

2) Don’t delay taking action.
Every step in the eviction process must be preceded by another step. Dragging your feet or delaying any step sets you that much further behind in the following steps. Be diligent and don’t let the tenant slow you down with promises or stories.

Send the late notice immediately upon non-payment of rent. We mail late notices on the 4th of each month because the grace period ends on the 3rd. There is no reason to wait longer. Send it the very first day that rent is late. Not doing so is foolish and unprofessional. I’ve met and talked to many do-it-yourself landlords over the years who don’t treat their landlord activity as a profession. This is a mistake. Even if you own only one rental house, you are in the business of being a landlord. Act accordingly or it will cost you money.

3) Send the Notice to Vacate
If rent is not received immediately (within 5 days) after the late notice is mailed, send the Notice to Vacate for Non-Payment of Rent promptly, no later than the 10th of the month. Sticking to this time line is imperative. Don’t waiver, don’t listen to stories from the tenant about having the rent on the 15th, etc. This is how goodhearted landlords get led around by the nose by deadbeat tenants who tell good stories.

If the tenant contacts you wanting to work things out, let the tenant know that you hope an eviction can be avoided, but that the only thing that will stop the eviction process is full payment of the rent and late fees. Ask if they have family they can call for financial assistance, or if they have stuff they can pawn. Also, let them know that once you file with the JP Court, any further discussion will need to be in front of the Judge on the court date.

4) File the eviction at JP Court
File at JP Court immediately after the passage of the date given in the Notice to Vacate. Don’t delay or have further conversation with the tenant about it, just go do it.

Each JP Court has a set of written instructions they will provide, as well as a form to fill out. Follow those instructions exactly. You’ll need a copy of the Lease Agreement and the Notice to Vacate (some require two copies of each). Again, don’t delay. (Are you noticing a theme here with regard to timeliness of action?).

Once the eviction is filed, a constable will drive to the property to serve papers to the tenant. Once served, the tenant has 6 days to respond. If they respond, a court date is set fairly soon thereafter. If they don’t respond, you can contact the court to set a date for a “Default Judgment”, which grants you possession of the property plus unpaid rents.

5) Appear in Court
If your tenant shows up for the Court date, which often happens, that is the time and place to decide if their tenancy is salvageable. If they have cash or money order in hand, it’s best to see if you can work it out with them, but I do so only after we’re standing in front of the Judge and I receive a judgment in my favor.

What generally happens is that the tenant wants to tell a story to the Judge. Often this will include unflattering stories about the landlord, condition of the property, etc. Also there is usually a story or explanation about why they don’t have the rent, their car broke down, they lost a job, when they might have it, etc.

The Judge, however, will ask the tenant only two questions:
– Is your rent in fact unpaid?
– If so, do you have a legal reason for it being unpaid?

The “legal reason” never exists unless a landlord had neglected repairs and the tenant has issued proper notices, so I’m not going to explain that further. I’ve not once witnessed an eviction hearing where a tenant did have legal reason.

Once the Judge determines that the rent is unpaid, he will review the lease and the notices provided to the tenant. This is where it’s important to have a good lease and to have followed the notification steps properly. If all is in order, the judgment will be in favor of the landlord and the tenant will be told they have 5 days to appeal (which is really 5 days to move out). I’ve never had a tenant file an appeal because doing so requires payment of a bond equal to the unpaid rent. If they had the money for that, they could have paid the rent.

6) File a Writ of Possession
If, after the 5 days pass the tenant does not move out, you have to go back to JP Court and file a Writ of Possession. I’ve had to do this only 3 or 4 times in almost 20 years. But when needed, the Constable will set an appointment with you to come to the property while you have the tenant’s remaining possession set out on the street and have a locksmith rekey the locks. You’ll have to physically remove the stuff yourself or hire movers to do it for you.

That’s it. After all that, you have regained legal possession of your property. Fun stuff, huh? It can largely be avoided with careful tenant selection from the outset, but even good tenants go bad sometimes.

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