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Sylvia Crossland, Broker Steve Crossland, MPM (512) 301-5811 |
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Tenant Eviction in Texas
March 29, 2008
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 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.
Comments
15 Responses to “Tenant Eviction in Texas”
Thanks for the info. Good info. If ok with you, I would like to add to my blog.
ThanksTary
Texas Lone Star Realty
512-892-6800
You mentioned tenant screening. I’d be interested in any advice you could give on this topic.
Steve,
You left out the court costs and filing fees. If this was a house with multiple roommates, the are substantial. Like everything else, we have seen these costs increase in the last few years and with the recent upturn in gas prices, I expect another round of adjustments.
Steve,
Have you ever tried to pay the bad renters to leave? Here is an interesting article on realestatejournal.com :
http://www.realestatejournal.com/buysell/markettrends/20080331-phillips.htmL
It’s simple economics really. Say you have to wait up to 2 months before you can actually kick them out. Then you might have to spend a lot of money to clean up the house or repair damaged doors, floors, and so forth. What if you offer them some cash for them to leave immediately?
Of course this is an very unorthodox way of handling things. But it might save you more than the normal process.
Steve, I have been reading this blog for more than a year now and I must say you do such a great job! Though quite a few agents are trying to follow suit by blogging, this is the best real estate blog in Austin.
My thread is not related to the original post. I was wondering if you could write a blog post about the condos coming up in downtown Austin and whether buying those as investments (to rent them out) is a good idea. We are thinking of doing this. Will this be worth it? What do you think of this market? I am sure lots of readers would want to know.
Thanks for the comments:
Chuck: That’s a good idea. I’ve actually started that article on tenant screening but never finished. I’ll get back to it. I didn’t realize until I started writing how many nuances there are in evaluating applicants. It’s straight forward on the surface, but even something as subtle as the pause between when I ask a former landlord a question and when they answer, the tone in their voice, etc. has to be observed and followed up with another question (i.e. - “you seemed to hesitate when I asked what type of damage they did to the house, but then you said there was none”.
Michael: Good point. It was $127 to file on the couple in Williamson County last month. Plus the time lost sitting in the courtroom. The tenant wants to fight it so I’ll be going to court (they scheduled my way out for April 15th for some reason).
ARZ: I have paid tenants to get out a couple of times long ago, but not recently. Completing the process through the court system ensures that the judgment will eventually be picked up by the credit bureaus, which means we might actually get paid someday if the tenant decides to fix their credit a few years later..
NIS: Thank you for your kinds words. I’m not very positive about investing in downtown condos. It’s too speculative for me, personally. I like boring family homes that are more predictable. If I have some extra investment money that I was willing top put at higher risk, I might think about it.
Steve
Hi Steve,
I don’t know if you would know the answer to this, but I own a home and had a friend living with me. She pays rent, but there is no written agreement (I know, bad idea!). Her and her cat are no longer welcome in my home after disrespectful behavior towards me. I had to even call for police assistance the other day. They told me I had to give her a 30 day notice, which I did, but do I got through the same process as you described above to evict her? She has paid her rent for this month.
Is there a way I can make her get rid of her cat? Her cat is ruining my carpet and furniture and she spitefully put the cat litter on the carpet in her room even though I told her when she first moved in not to. Her cat kicks out the litter and feces and smears it on the ground. What can I do about that damaged property?
Thank you in advance for your help!
Steve, can you tell me what to do if I am a person who is doing the renting of a house, but the owner lives in another state. I made the contract , but I am not the owner, it belongs to a friend who lives in NY. Do I need a special power attornery to start any action?
The tenant, has failed to pay on time, pretty much every month. Can I write him a letter “Notice to vacate for non-payment of rent”. It is better to get a lawyer or can I start doing something in the meantime. We have called the tenant several times , but of course he does not respond to our calls. Please tell me what is the best way to solve this issue. In advance, thank you very much for your help.
Hi Gerardo,
In your case, I recommend hiring a lawyer. Call the Austin Apartment Association and they can refer some to you.
Then tell your friend you don’t want to manage the house anymore and that he should hire a professional property manager. Not doing so from the outset has/will cost him much more than he thought he would be saving by thinking it was an easy task to have a friend handle for him.
Steve
Hello Steve, I have taken your advice on the proper way to evict a tenant and hopefully everything will go good at the court. The tenant is 30 days late on the rent. After reading your blog, I will know what to do with the next tenant. Is there ever a time when the judge will grant the tenant who is 30 days late on paying rent more time to move out ? Thanks for very good advice. Roger
If a tenant pays rent on time, but repeatedly violates the lease provisions (makes several alterations to the property, loud noise, doesn’t clean their areas as designated by the lease) can I kick them out without filing an eviction? My lease agreement says I can giove 3 days notice to vacate for any lease violations.
2. The lease also provides me to be able to cancel the lease at any time for any reason with 30-days notice. Do I need to go through the eviction process for this?
Thanks so much for any help/information yopu may have.
I have a tenant presently who repeatedly causes disturbes, usually late at night by fighting with a boyfriend.
Rent is paid up until Aug. 12, 2008, but she slammed her car into the curb last Mon. trying to block the boyfriend from leaving.
I posted Notice to vacant the next day with no results, so I guess the next step is paying to get her out with J.P. eviction.
Steve,
I have a tenant who defaulted on the rent for one month. The rent was paid a month late and the rent payment for the next month also started slipping.
I read your blog and then served notice on them implying legal action. They paid 80 % of the rent due with a promise to reminder with late fees soon.
The contract expires in October, so I am just trying to hang in there for the next 75 days.
Sri
My mother-in law has a tenant who has been late 5 out of the last 8 months and has now missed the last 2 months rent. She refuses to pay penalty. Everytime she is going to be late making her payment she sends a lengthy letter complaining about the condition of the property. When I speak to her she has had a friend make repairs (unauthorized). My mother-in-law sent her a demand letter last month and she said she was withholding rent to cover repairs. She has missed again this month and my mother-in law is following your advice on notifying the tenant to pay or vacate within 5 days. Thanks for your guidance.
Hi Steve , well to start I can tell you this we were frauded in a contract with what I thought was a realator but guess what it was all lies …Speaking of the store bought lease contracts ..hahah We gave this guy 15 days before I can do anything when in fact my mortgage is due on the 1st. Not to mention he told me the laws had changed and I could only charge him 10.00 per day late fees for 3 days I had 15 days but scratched out and put 3 unbelievable, We filed for Eviction and they never showed up in court and we got a default Judgement , then on the 5th day at the last 10 min before closing he filed for a paupers appeal , on the next day I rejected went to court 2 days later and he was denied paupers, then on the 5th day appeal …..never paid no rent the laws are not good as the paper there written on it still can take up to 3 months with all the appeals and more appeals …I will never lease again alot of losers out there!!!! ….Thanks ….just venting