Law pg 11,12,71.qxp_Layout 1 4/20/22 11:18 AM Page 1
It’s the Law
By HOWARD BOOKSTAFF, Hoover Slovacek LLP , HAA General Counsel
TROUBLESHOOTING EVICTIONS
Evictions are supposed to be a summary procedure that is inexpensive and speedy. So, what happened?
OVER THE PAST two years, the eviction process has been confusing, complicated, time consuming and frustrating. Delays in the eviction process have created problems for both landlords and residents. Residents have large (sometimes really large!) delinquencies. Eviction delays have prevented landlords from reletting units to mitigate their damages. Residents are faced with increased credit and rental history problems that will be difficult (or impossible) to overcome. How did we get here? Several issues have contributed to our current environment: • 30-day notice to vacate requirements for certain properties covered by the CARES Act and new HUD and Federal Housing Finance Agency requirements • Supreme Court Emergency Orders that have given judges flexibility leading to delays in the eviction process • Supreme Court Emergency Orders that have allowed judges to abate and dismiss cases while the parties wait for rental assistance that may or may not ever come. • Judicial interpretations of the federal and state law, rules and orders. Some delays can’t be avoided, but some can. To minimize unnecessary delays, it is more important than ever that an owner properly prepare for an eviction proceeding. Here are a few tips to allow you to navigate through some of the most common problems owners have faced: 1. Service of the Notice to Vacate The Property Code requires that the notice to vacate be given in person or by mail at the premises in question. Notice in person may be by personal delivery to the resident or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the www.haaonline.org
main entry door. Notice by mail may be by regular mail, registered mail or certified mail, return receipt requested, to the premises. As an alternative, the owner may deliver the notice by securely affixing the notice to the outside of the main entry door; however, this method of delivery should be considered in only certain limited circumstances. Outside delivery can only be done if: (i) the premises has no mailbox and a keyless bolting device, alarm system or dangerous animal prevents the owner from entering the premises; or (ii) the owner reasonably believes that harm will result from personal delivery to the resident or by affixing the notice to the inside of the main entry door. Additionally, the notice must be placed in a sealed envelope with the resident’s name, address and in all capital letters, the words “IMPORTANT DOCUMENT” (or substantially similar language) and must be mailed no later than 5 p.m. on the same day from the same county in which the premises is located. Since notice on the outside of the door requires that certain specific additional action be taken, and is only available in limited circumstances, the best approach, if possible, is to affix the notice to the inside of the door. Even if someone opens the door, if you are not sure if it’s the resident, the safest approach is to affix the notice to the inside of the door. 2. Be sure that the date and the number of days’ notice is correct The Property Code provides that the owner must give at least three days’ written notice to vacate before the owner files a forcible detainer suit unless the parties have contracted for a shorter or longer period in a written lease or agreement. The TAA lease provides for a 24hour notice to vacate. However, if your property is subject to the CARES Act or the applicable HUD or FHFA rules, you would be required to
give a 30-day notice in nonpayment of rent cases. Be sure that the date on the notice and the date that the resident is required to vacate properly reflect the number of days’ notice you are required to give. 3. Content of the notice Be sure that the notice is not a “pay or quit” notice stating that the resident can either pay or vacate. The Property Code provides that, if before the notice is given, the owner has given a written notice or reminder that rent is due and unpaid, the owner may include in the notice to vacate a demand that the resident pay the delinquent rent or vacate the premises by the date and time stated in the notice. In other words, under Texas law, if the notice contains a demand to pay rent or vacate, the notice would only be proper if there was a previous notice or reminder that rent is due and unpaid. To avoid having to give two notices in an eviction proceeding, it would be best to simply provide an unconditional notice (a notice that states what the default is and requires the resident to vacate). 4. Acceptance of partial payments during the eviction process The issue of waiver is presented when an owner accepts a partial payment of rent during the eviction process, after the notice to vacate is given. It is your choice whether or not to accept a partial payment. If you don’t accept the payment, you have solidified the argument that you want to go forward with recovering possession of the unit because of the resident’s delinquency. If you accept a partial payment, you run the risk of an argument that you have waived (given up) your right to continue with the existing eviction process for nonpayment of rent. As indicated, it is your choice whether to May 2022
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