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.
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Colene,
You should visit the Houston Tenant’s Council website and educate yourself on your rights. You cannot be forced out due to foreclosure, and you have remedy rights as a tenant so long as you follow the proper steps. You’ll find information and phone numbers.
http://www.houstontenants.org/
Document all communication in writing and take pictures. If you end up in court, you don’t want to rely on “he said, she said”.
Good Luck,
Steve
I am renting a townhome in san antonio. My son and his now wife and their 6 month old baby live here rent free. Not cause I am not wanting rent, but because he has refused to work. It has been a year and I have given them an ultimatum, either get a job and pay rent, enroll in a ged program or move out. He recently informed me he is not moving, all the while not lifting a finger to help around the house or even clean after themselves. Plus not looking for a job or enrolling. he had 2 weeks and as of the 14th, it will be the end of his time. I understand i have to file and eviction but my question is… the verbage on the 3 day notice refers to a lease and monies paid or unpaid. how do i fill out the notice when those dont apply. Can Modify the verbage to apply to this situation?
Hi Shannon,
You need to consult an attorney. My advice, NEVER rent to family or friends, ever, no matter what, ever. Never ever. Just don’t do it, period. It’s a really, really bad idea and almost always results in a poor outcome and damaged relationships.
Good luck,
Steve
Steve
we have a renter who was 44 days late paying rent. We did start the legal notification sending her a certifired letter, she did come up with the money in the amount of the Oct. and Nov rent but totally ignored that late charges assessed. Our lease states that all money recieved will be applied to late charges then rent so technically she is still late on the November rent but does not acknowleged that she owes in back rent due to late charges. She has also violated the pet clause of the lease.
Can we go ahead and file based on back rent owed and let the JP decide, and is rent the only reason you can file for an eviction?
Hi John,
I’m not an attorney, and this isn’t legal advice, but I can tell you what I do in the same situation. I simply proceed with the eviction and bring the un-deposited funds into court. Technically, if you haven’t cashed or deposited the rent, you haven’t accepted it. I tell tenants that once the eviction train leaves the station, the only way to stop it is to show up at JP Court with 100% of all amounts owed, otherwise they will in fact be evicted from the property. When the tenant tells the Judge they paid, and the Judge asks you if that’s true, you simply hold up the money orders and offer to give them to the Judge. The Judge will give them back after awarding you a judgment.
If you deposited/cashed the rent checks, your safest next move is to start over again with a new notice.
The best way to deal with recalcitrant tenants, in my experience, is to drag them in front of a JP Court Judge. As long as your clean on your side of things, the judge will straighten them out and educate them and they tend to behave after nearly being evicted whereas if you simply drop it they often don’t learn anything and they repeat the same behavior.
Landlording is very much a behavior modification business and it’s important to understand the modification measures that work and the ones that don’t. JP Court works really well.
Steve
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I have a roommate that I found on craigslist, and she is renting a room in my home. When she first moved in, I came home to find my home in disarray. Flowers pulled put, outside water left on, lawn mowed in an “x” and left outside. She was passed out face down on her floor. She had been drinking, took ambient and cymbalta and blacked out. I gave her a second chance and she has been drinking everyday and takes her drinks with her in her car. She is now 8 days late on rent and I had already given her a 30 day notice to leave( stated in contract) and now I have given her a vacate notice. She goes into my bedroom closet and steals my liquor and I have found a blank check missing. I now have a new key lock on my door. I need her out asap. She comes from money and threatens me that my eviction will never hold up in court. Is there anyway to get her out of my home sooner or without the eviction? Please help!
Hi Kate,
> Is there anyway to get her out of my home sooner or without the eviction?
Yes, you can pay her to leave. Offer her cash in exchange for immediate departure and execute an amendment to the lease agreement stating the deal. Also offer to drop her off at the nearest rehab center.
Good Luck,
Steve
I won judgement against tenant in JP Court. Can I just lock the guy out after the 5 days instead of paying $130 to a constable. All he has is a few boxes of personal items. I feel this can be accomplished without a domestic disturbance. I was going to lock him out after the 5th day and leave his boxes outside.
Also, the lease states that all rent (term lease) will be accellerated, but JP judge only awarded court costs and rent up to the 5 days following the judgement? Is this right, and if so, what good is such an acceleration clause in the lease?
Thank you,
JB
JB – I suggest you stay within the parameters of what is legally allowed. If the tenant still occupies the property after 5 days, go through the formal process for removal. It’s part of the cost of being a landlord. Cutting corners, taking shortcuts, or trying to save money can come back to bite you.
On the JP rent award, the JP is really only deciding who gets possession of the property. They will award past due rents but if you want to accelerate and collect future rents, you have to do that in a separate process.
Good luck,
Steve
I am living overseas on a foreign assignment and lease my residence back in the Houston area. Due to non payment of rent, I recently hired an attorney and took my tenant to JP court to have my tenant evicted. While I was successful in getting my tenant evicted from my property, I calculate I’m out approximately $30K when factoring in unpaid rent, previously unpaid utilities, legal fees and repair costs due to damages to the property. My attorney advises that his search indicates my tenant has no publicly listed assets in his name. This is despite the fact my tenant kept a fleet of high-end vehicles on the property and was living large. Among other valuables, the constable removed 12 plasma televisions from my house, one an 80 inch. My question…am I s**t out of luck or can you offer up any ideas for helping me recover my losses? My attorney says winning a claim for breach of contract is a slam dunk, but worthless since he believes the tenant will never pay, just like he’s chosen not to pay the rent.
Hi Shawn,
Don’t know what to tell you. The amount is beyond the JP Court amount limits so your attorney would have to file suit in a higher court.
This is why it’s important to file eviction immediately, before the losses can mount.
Good luck,
Steve
It’s a shame there isn’t some sort of probationary period to protect tenants from being tied to a lease at an apartment community that does not meet their needs in some way, which could not be predicted prior to moving in. In my case, equal housing laws prevent me from asking the questions I’d need to ask in order to know if the community is right for us, specifically whether or not there are families with children living there and/or whether the community and residents are kid-friendly. Even my general questions about family activities/events or school bus routes and schedules receive vague answers that are enthusiastically positive because the leasing agent wants to make a “sale.” In my case, within days of moving in, I knew I’d made a terrible mistake and that we were going to be miserable here. A simple one-week escape clause would have allowed me to correct my mistake and cancel the lease, which would have been better for everyone since our presence here grieved the other residents and the management office as much as it did us. I’d have willingly taken the time to find another more suitable apartment and paid again to have the movers come back and load up everything they just unloaded, even if it meant paying double to get us moved out within a week. A lease cancellation clause would not seem unfair, especially since fair housing laws prevent landlords from telling prospective tenants certain details about the community that could tell them whether it’s the right place for them or not.
I’m a single parent, and I would have liked to know BEFORE signing the lease that this community not only does not have any other families with children living here but contains only urban professional, single 20-somethings, about half of whom are homosexual, who do not like children, do not want to have children living near them, and do not want to see, hear, or in any way know that there is a child living among them. They set upon us right away filing complaints with the office any time my son was seen on the premises doing anything remotely child-like, such as going barefoot in the summer, giggling, running, riding his skateboard (anywhere–even in the parking garage or out on the sidewalk near the street), or doing cannonballs in the empty pool when nobody else was swimming. We feel persecuted here and harassed, as though we couldn’t possibly avoid offending the neighbors unless we stay inside our apartment and keep silent.
The residents complain about trivial things, and the management staff oblige them by finding a way to file every complaint as a lease violation against us. As it is my word against theirs, I have no recourse but to just keep adding to my collection of lease violation notices, since I learned right away it does no good to argue my son’s case or deny the charges.
Examples: lease violation for “destruction of community property” was given because my son was doing cannonballs into the pool. No mention of what property was destroyed or even endangered by my son’s actions–I’m sure I’d have been asked to pay for any damage to community property he caused, but no request for payment, no damages assessed or described–just a vague, nonspecific charge to let us know that splashing and shouting in the pool will not be tolerated.
Lease violation for “child left unattended on community property” was given because I sent my son to retrieve the last two bags of groceries from the car after a trip to the supermarket. He went down the hall about 100 feet to the parking garage, to the car parked near the door, and came back with the groceries. He did not have shoes or socks on. He said a girl from the apartment office chewed him out, so I went down to the office to find out why. It seems the flimsy plastic grocery bag snagged on the door as he came through. He yanked it, tearing a hole in the bag, and a few items fell out onto the floor in the hallway. He went down on hands and knees to pick up the items just as one of the leasing agents walked by with a prospective tenant. Apparently, the dirty soles of my son’s bare feet and the disheveled appearance of dropped groceries embarrassed the leasing agent and contradicted the chic, sophisticated, yuppie image she’d been trying to convey. She sharply scolded my son and told him not to go without shoes in the hallways or parking garage. When I asked the manager what the problem was, she said, “Do you realize he was crawling around on the floor, and he had no shoes on?” I said yes, since it was August, I was aware that he had no shoes on. I wasn’t specifically aware that he’d been crawling on the floor, but I still didn’t see what the problem was. Is there a rule of some kind against crawling on the floor? She spluttered a bit more about his bare feet, never mentioning anything at all about him being in the hallway alone or unattended. The next day I received the official lease violation that charged me with leaving my child unattended on community property. After that, I received this same lease violation notice each time my son was spotted anywhere on community property without me in direct attendance.
Lease violation for “destruction of community property” received because my son was seen with his skateboard in the hallway and in the elevator, on his way with me to walk to the courtyard and parking lot across the street where he would ride his skateboard while I sat reading on a bench. Because he was with me, they couldn’t claim “child unattended” but they claimed he was riding the skateboard all over the place: in the halls, out by the pool, and rolling the skateboard around in the elevator. Again, no specific damage to any property was assessed or described. He carried the skateboard most of the time until we got to the sidewalk across the street, but I admit he did drop the skateboard down a couple of times and kick it around in the hall and in the elevator. Each time, I made him pick it up and carry it again, and I observed myself that no damage was done by the skateboard anywhere on community property.
Because he is the only child living here, he is noticed no matter what he’s doing. Because he’s a child, he will often run or trot down the hallway instead of strolling with a mature, leisurely gait. Because he’s a child, he often laughs and talks louder than is appropriate outside our neighbors’ patios. Sometimes he even whoops and hollers, because he is a child. The residents and management staff clearly do not want my son here, and whatever disturbance he has caused them could have been avoided if only I could have canceled the lease within a few days of signing it. I’m sure there are other situations where both tenants and landlords could benefit from a simple probationary escape clause.
My question is this: toward what purpose have these lease violations been given to me? Are they used to evict a tenant after enough violations have accumulated? Although I don’t consider any of them to be valid or reasonable, if their purpose is to evict us, effectively freeing us from the lease, then I’ll be happy to collect as many of these ridiculous lease violation notices as I can get! I’ve read the lease trying to find anything that explains what these lease violation notices are for. All I found is that I can be charged a $50.00 fine for each violation, but no such fines have been assessed. I wouldn’t pay them because I do not agree with the charges, but if I’m not to be fined or evicted, what are they for?
I recently received a judgment / eviction against a tenant. I will be filing an abstract of judgment to effect his credit report. In addition to that, can I also file an IRS Form 1099 – Misc. as earnings for the former tenant since he has received free (unpaid) rents?
> can I also file an IRS Form 1099 – Misc. as earnings for the former tenant since he has received free (unpaid) rents?
Only if you forgive the debt. You better consult an accountant about it though.
Steve
My husband and I purchased a second home that was a foreclosure. My son and his wife and kids are living in the home. They say they will purchase from us when he receives the money he is expecting from military disability settlement. There is no lease agreement and no rent has been paid. How do I get them to pay something because the time frame of his monies expected has lapsed. I don’t want them to keep living there for months just to save more money while doing damage to the home due to indoor pets, etc.
Kathy,
Sounds like you have a month-to-month oral lease (which is recognized as valid in Texas) and you need to send a 30 day notice that the rent is increasing (from zero) to $xxx (whatever amount you think is fair).
Then, if rent is unpaid the following month, follow the standard eviction steps for nonpayment of rent. That’s what I’d do, but if you are uncertain, consult an attorney.
Good luck,
Steve
Thanks for the info.
I have a question for the eviction processing. In the collin county, it is normally about 20 to 23 days to evict a tenet. There is a remedy that can shorten the time period from 23 days to ten days if you prevail in Court. Do you have experience with this “Bond for Immediate Possession ” and can I get my money back ?
Here are copy from the collin county website:
There is a remedy that can shorten the time period from 23 days to ten days if you prevail in Court. This is known as a Bond for Immediate Possession and includes a Notice to Defendant of the Bond for Immediate Possession. By filing a bond for immediate possession, the eviction process could be shortened provided the defendant does not request a trial or post a counter bond.
In a Bond for Immediate Possession, you are putting up a bond for surety or cash. If you lose your suit, you could lose all or part of your bond. It must also be noted that any eviction suit judgment may be appealed to the County Courts-At-Law. However, if the defendant requests a trial or files a counter bond, the length of time involved in a Bond For Immediate Possession will be about the same as in a normal Eviction suit.
Best Regards,
Tim
Hi Tim,
You’d need to consult an attorney regarding your question. I can say that I always just use the standard eviction process as do all the professional property managers I know. I don’t think any of us see the extra effort and hassle of the BFIP as worth it. If we’re having to evict someone, it’s not a good situation and speeding things up by a few days isn’t going to matter much.
Steve
Here’s one from the other side… on 3/18 landlord gave verbal 30 notice to vacate my month-to-month rental. I acknowledged and agreed to be out by 4/18/10. On 3/20/10 there was a disagreement and she called the sheriff to “have me removed”. Officers responded, gathered the facts, told her she has no recourse but to file an eviction. On the spot she wrote a 30 day notice to vacate NLT April 18, 2010. I signed. The same day she cut off internet access which was one of the services I specifically required when renting. This rental is furnished, all bills paid. Since the beginning, a tv and couch have been in one of my rooms. When I got home from work, she’d been in my room and removed the tv and -the pillows from the couch-! Last night she slipped three notices under my door. The first stated that effective 3/23 or 3/26 (the note is contradictory) my rent would go up to $2,000 PER DAY. The second notice said that I was to have all my food removed from my fridge (in the garage) by 3/26/2010 and that any food remaining on 3/26 would be discarded. Additionally, I did not have permission to use her refrigerator. The third notice was a notice that I will vacate on 3/26 as I’m being evicted for hacking her computer/router. Last night she got up at 130am and turned the tv in the living room on very loudly. It was on until my alarm went off at 520am. At that time, the tv went off and I heard her shower start running. Obviously, the hot water was gone within minutes.
Now what?
MIke,
Sounds like a nut case! I’d clean up, take pictures and get a witness that it is clean. Then I’d get my stuff and get out!. If she does not return your deposit take her to court and have her explain it to the JP.
I am a realtor and I have a house listed that is tenant occupied. The tenant of this house has bullied my 86 year old client and has been continually late or has only paid partial rent for months. She has recently put the house on the market and two months ago he was late once again and I started eviction proceedings for her at the JP court. I sent him the registered letter and gave him 5 days to pay, plus penalties and late fees along with an eviction notice. He called my client with a sob story and she took his money plus late fees and penalties and dropped it. Now he is 13 days late once again and she is fed up and wants him gone. I was told by several co-workers that if he doesn’t pay the rent on the day it is due he has broken the lease and I can just send him an eviction letter. To file a suit costs $112 for my client and she doesn’t even want him to come up with the money at the last minute. She doesn’t want him there anymore. He has a TAR lease. Is it REQUIRED by law to give him 5 days to pay if she just wants him to leave? Or can we just send him the eviction notice since he has broken the lease?
Hi Donna,
In this instance, since neither you or the owner seem to know the process, your owner should hire an attorney.
Good luck.
Steve
We ended up evicting our current tenants, thanks for all the helpful advice.
I have been named successor trustee to my grandmother’s estate. She had let a gentleman stay with her from time to time to help her take care of the house. The gentleman in question has his own house less than 10 miles away but since her death has refused to move out of my grandmother’s property. I’ve shut off the utilities that were being billed in her name and he still continues to live there. What are my legal options?
Hi Charlotte,
This is a situation for which you definitely want to speak with an attorney. The occupant may have rights of occupancy depending on the nature of the relationship with your grandmother.
Steve
Steve,
We have a tenant who recently broke his lease. He owes us a significant amount of money from rent not paid. We had been trying to work with him to get our money. Since he left the house and broke the lease, what if any legal steps can we take to get this unpaid rent?
Thanks for you advice,
Janet
Hi Janet,
Since the tenant has vacated, it’s not an eviction, but a small claim. You can handle that yourself with instructions from your JP Court, or hire an attorney.
This is why it’s important to initiate eviction as soon as tenants fall behind, immediately, because it’s much easier to obtain a judgment for amounts owed as part of the eviction suit than to come back later with a small claim action.
Good Luck,
Steve
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