It’s The Law – An eviction checklist

EVICTION CHECKLIST

Are you ready?

By Howard Bookstaff, Hoover Slovacek LLP, HAA General Counsel

TEXAS COURTS HAVE held that the legislative intent when enacting the eviction statutes was to create a summary procedure that is inexpensive and speedy. However, in recent years, evictions have become confusing, delayed and filled with various regulatory obligations.

The eviction process can be intimidating, daunting and overwhelming. In an effort to help you navigate the process, here is a list of things you should be prepared for when you are evicting a resident.

Name of Property

The “Owner” designated in the lease can either be the legal name of the ownership entity or the assumed name for the owner, which is the name in which you do business (the name of your apartment community).

If you use an assumed name in your lease, you need to be sure that you have complied with the Texas Assumed Business or Professional Name Act. This Act requires you to properly register any assumed name that your owner is using. Although it is relatively easy to file an assumed name certificate with the appropriate authority, there are unique penalties if you don’t that are especially relevant if you are evicting someone under your assumed name.

The Act provides that a person’s failure to comply with the Act does not impair the validity of any contract or act by the person or prevent the person from defending any action or proceeding in any court. However, the person may not maintain an action or proceeding arising out of a contract in which an assumed name was used, until an original, new or renewed certificate has been filed as required by the Act. If you are evicting someone and your lease identifies the “Owner” by its assumed name, and you don’t comply with the Act, you run the risk of delaying the eviction proceeding.

BE PREPARED: Review your lease to determine whether you have designated the “Owner” by its legal entity name or by its assumed name. If you have identified the “Owner” by an assumed name, be sure that you are prepared to provide evidence that you have complied with the Act by filing the appropriate assumed name certificate. I should note that if your lease is in your owner’s assumed name, whether or not you are involved in the eviction process, you should be sure that the owner has the proper assumed name certificate on file.

Notice to Vacate

Unconditional Demand

The notice to vacate should be an unconditional demand for possession, as opposed to a conditional notice that the resident must vacate only if the resident doesn’t pay the delinquency. The Texas Property Code provides that if before the notice to vacate is given the landlord has given a notice or reminder that rent is due and unpaid, the landlord may include in the notice to vacate a demand that the tenant pay the delinquent rent or vacate the premises. In other words, if you give a conditional demand (one that states that the resident pay the rent or vacate), you would have to give a previous notice or reminder that rent is due and unpaid in order to have your notice be an effective notice to vacate under Texas law.

BE PREPARED: Read your notice to vacate to be sure that it is an unconditional demand for possession, rather than a demand that the resident either pay or vacate.

Number of days to vacate

The Texas Property Code provides that if a tenant is in default of the lease, the tenant must be given at least three days’ notice to vacate before the landlord files an eviction action unless the parties have contracted for a shorter or longer period in a lease or agreement. The standard TAA lease allows for a 24-hour notice to vacate. However, in March of 2020, the CARES Act was passed which requires certain properties to give a 30-day notice to vacate. Properties subject to a CARES Act are those that would be required to comply with VAWA (the Violence Against Women Act, which includes many types of assisted housing) or properties that have federally backed mortgages (which covers many conventional properties).

In 2021, both HUD and the Federal Housing Finance Agency adopted rules, which would apply to the same types of properties that are subject to the CARES Act, that also state that a 30-day notice to vacate should be given in nonpayment of rent cases.

BE PREPARED: It is imperative that you are aware of whether you are subject to the CARES Act in order to be sure you give the proper number of days’ notice to vacate.

Delivery

The Texas Property Codes provide for certain ways in which a notice to vacate is to be delivered. The notice to vacate can be given in person or by mail at the premises. Notice in person may be by personal delivery: (i) to the tenant or any person residing at the premises who is 16 years of age or older; or (ii) to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail, by registered mail or by certified mail, return receipt requested.

As an alternative to this delivery, a landlord may deliver the notice by: (i) securely affixing the notice to the outside of the main entry door in a sealed envelope on which is written the tenant’s name, address, and in all capital letters, the words “IMPORTANT DOCUMENT” or substantially similar language; and (ii) not later than 5 p.m. on the same day, depositing the notice in the mail in the same county in which the premises is located.

However, this alternative is only available under the following circumstances:

1. The premises has no mailbox and has a keyless bolting device, alarm system or dangerous animal that prevents the landlord from entering the premises to affix the notice to vacate to the inside of the main entry door; or

2. The landlord reasonably believes that harm to any person would result from personal delivery to the tenant or a person residing at the premises or from personal delivery to the premises by affixing the notice to the inside of the main entry door.

BE PREPARED: How the notice to vacate was delivered is one of the first things reviewed by opposing counsel and the judge. Be sure delivery was proper and you are ready to provide evidence of delivery. Although not legally required, it may be a good idea to take a picture of a notice that has been posted on the inside of the door, if possible.

Petition

In addition to the customary things that every lawsuit must contain, an eviction petition must contain the following:

1. A description of the premises, including the address;

2. A description of the facts and grounds for eviction (for example, nonpayment of rent); 3. A description of when and how the notice was delivered; 4. The total amount of rent due and unpaid at the time of filing; and 5. A statement that attorney’s fees are being sought, if applicable.

BE PREPARED: Since these are part of most form petitions you fill out when you file the eviction, be prepared to be able to fill in the information required. Additionally, when you go to trial, be prepared to provide evidence of each of the issues pertaining to these requirements.

Where the suit is filed

The Petition is filed in the precinct of where the property is located. If it is filed elsewhere, the judge must dismiss the case. It should be noted that, in Harris County and a few other locations, there are two judges in a precinct, which gives you a choice.

BE PREPARED: Before you file an eviction, you should know what precinct your property is in and where you are required to file. If you have a choice, you should be familiar with each of the judges to be able to choose the judge with whom you are most comfortable. Remote proceedings (the emergency order from the Supreme Court of Texas that provides for remote proceedings expires January 1, 2023).

Remote proceedings (the emergency order from the Supreme Court of Texas that provides for remote proceedings expires January 1, 2023).

Pursuant to an emergency order issued by the Supreme Court of Texas, all courts in Texas may allow or require anyone involved in a hearing, deposition or other proceeding of any kind to participate remotely, such as by teleconferencing, video conferencing or other means. Although the current emergency order expires January 1, 2023, it may be extended further. Additionally, there are proposed rules that will also allow remote proceedings. It appears that a remote proceeding option is here to stay.

BE PREPARED: Since whether to have remote proceedings is up to the judge, you need to be prepared for a remote proceeding if your judge requires it. When you file a petition, you should determine whether the trial will be held in person or remotely. If remotely, you need to be prepared to provide the judge and the other party with the evidence you intend to present at trial.

Rental Assistance (the emergency order from the Supreme Court of Texas that provides for rental assistance to be part of the eviction process expires January 1, 2023 and will only be in effect thereafter if it is extended).

If the landlord has a pending application for rental assistance involving the tenant, has provided any information or documentation directly to a rental assistance provider for the purpose of receiving rental assistance involving the tenant, or the landlord and tenant both express an interest in participating in an available rental assistance program, the court must immediately abate the eviction action for 60 days or until the landlord reinstates the eviction action, whichever is first.

BE PREPARED: You need to be prepared to answer the judge’s question of whether you would like to participate in an available rental assistance program involving the tenant. Keep in mind that the rental assistance programs are voluntary. You do not have to take rental assistance. Although not legally required, if you don’t want rental assistance, you may want to be prepared to tell the judge why you’ve decided not to take rental assistance for a particular tenant.

Trial

At trial, you will need to be prepared to present your evidence. In most nonpayment of rent cases, you will need to be prepared to present your lease, identify the delinquency and present the notice to vacate. You may be required to

BE PREPARED: Ideally, you would bring people with you to court that have personal knowledge of the evidence presented, including knowledge of the lease, the delinquency and how the notice was delivered.

Writ

A writ of possession may be requested on the sixth day after the date a judgment for possession is signed or the day following the deadline for the tenant to appeal the judgment, whichever is later. However, a writ of possession may not be issued more than 60 days after a judgment for possession is signed, unless the court extends the deadline, which can be done for up to 90 days after the judgment is signed.

BE PREPARED: As soon as a writ of possession is available, you should request it from the court. You should calendar the date on which you can request a writ, which would be six days after the date the judgment is signed (if no appeal is filed). Note that the time period may be extended if the fifth day is on a weekend or holiday or if the court closes prior to 5 p.m on the fifth day.

Appeal

A tenant can appeal a case by filing a bond, cash deposit or Statement of Inability to Afford Payment of Court Costs (a “pauper’s affidavit”) within five days after the date the judgment is signed (subject to the extended period provided above). If the appeal is perfected by the tenant filing a surety bond or pauper’s affidavit in a nonpayment of rent case, the tenant is still required to pay one month’s rent into the court registry within five days after filing the bond or pauper’s affidavit. If the resident fails to do so, you may be able to request the writ. Keep in mind that the appeal still goes on even if you are able to get possession after requesting the writ; however, you can have possession pending the appeal.

BE PREPARED: If an appeal is filed, make sure you calendar when you can check to see if the proper payment was made into the court registry. If it was not, you should be requesting the writ.

County Court

Appeals of evictions from the justice court are by trial de novo in the county court. A trial de novo is a new trial in which the entire case is presented as if there had been no previous trial.

BE PREPARED: Always be aware of where you are in the court process. If the case is appealed, you will need to be sure to obtain a trial date in the county court and proceed accordingly with the new trial. Once appealed, it may be beneficial to retain legal counsel to help you navigate through the county court trial.

In this environment, evictions can be complicated. Preparation will be the key to minimizing issues at court. Hopefully this checklist helps you think about what you might need to do before and during the eviction process to be successful.