It’s The Law – So, what will eviction look like?

By HOWARD BOOKSTAFF, Hoover Slovacek LLP , HAA General Counsel

THE “NEW NORMAL”

So, what will eviction look like?

REMEMBER 2019? If a resident failed to pay rent, the manager was able to go to court (without a lawyer), appear before the judge, tell the judge that the resident has not paid rent and obtain a judgment for possession. No attorneys, no problem! If residents didn’t pay rent, you could easily exercise your remedy, regain possession of your unit and relet the unit to someone who met income requirements and paid rent timely.

It is now 2022. Evictions look a lot different. There are several things to consider before going to court. Oh, how things have changed!

Texas courts have long provided that an eviction is intended to be a speedy, inexpensive, summary procedure for taking possession without the influence of other issues. Where have these concepts gone?

Speedy? The rules of civil procedure provide that an eviction trial has to be held not less than 10 days nor more than 21 days after the petition is filed and the citation has to be served to the resident at least six days before the date of the trial. Although many courts are getting back to having trials with these time frames, there are still some courts that have delays in processing petitions, serving citations and serving writs of possession. Further, cases can be abated if rental assistance is involved in the process and properties subject to the CARES Act must give a longer notice to vacate in nonpayment of rent cases.

Inexpensive? In light of the pandemic-related requirements imposed by federal law, the Supreme Court of Texas and local jurisdictions, many owners and managers have felt uncomfortable going to court without having an attorney. This has made the process much more expensive than ever before.

Summary procedure? The various layers of additional regulations, rules and requirements have made the process longer. Many would no longer consider the procedure to be a summary procedure, but rather a drawn-out one.

So, what does the “new normal” look like? Will we ever get back to a time when owners and managers are comfortable going to court without first retaining legal counsel? Let’s look at some of the issues you may face when you go to court in today’s world. So, what does the “new normal” look like? Will we ever get back to a time when owners and managers are comfortable going to court without first retaining legal counsel? Let’s look at some of the issues you may face when you go to court in today’s world.

Remote proceedings

For several months now the Supreme Court of Texas has had an emergency order that allows various types of remote proceedings. The 55th Emergency Order, one of two orders currently in effect, provides that any court may allow or require anyone involved in any hearing, deposition, or other proceeding to participate remotely, such as by teleconferencing, video conferencing or other means. The 55th Emergency Order expires November 1, 2022; however, the allowance of a remote proceeding has been in the emergency orders for several months and may very well continue into the future.

Some courts have used remote proceedings exclusively. Some courts have used remote proceedings only upon a party’s request. Some courts are phasing out remote proceedings. No matter the case, to be prepared to go to court, you will need to know as early as possible whether your case will be in person or through a remote means.

If the trial will be held remotely, you will need to be prepared to present evidence, such as the lease and the notice to vacate. You will also need to know how to connect with Zoom or whatever other method the court is using. If you have witnesses, your witnesses will need to know how to connect.

Legal aid

The other Emergency Order still in effect is the 54th Emergency Order. Like the 55th Emergency Order, the 54th Order has similar content as many of the previous orders. The 54th Emergency Order also expires November 1, 2022 but covers topics that have been in effect for a number of months. It would not be surprising if the issues mandated in the 55th Order are extended beyond November 1, 2022.

One of the mandates of the 54th Order is that all courts must allow, if available, representatives from legal aid organizations or volunteer legal services to be present – in person or remotely – to provide information, advise, intake, referral or other assistance for eligible litigants. An “eligible litigant” is typically not on the owner or management side. It is the resident. What this means is that you should always assume that your resident will have access to an attorney and will be prepared for the potential issues an opposing counsel might raise.

Rental assistance

The 54th Emergency Order also continues with requiring JPs to make rental assistance part of the eviction process. As with previous orders, the 54th Order provides that the judge must, if the landlord has a pending application for rental assistance involving the tenant or the landlord and tenant both ex- press an interest in participating in an available assistance program:

A. immediately abate the eviction action for 60 days;

B. immediately make all courts records, files and information – including information stored by electronic means – relating to the eviction action confidential to prohibit disclosure to the public; and

C. inform the parties of the extension, reinstatement and dismissal procedures outlined in the Order.

As before, the 54th Order provides that the case is dismissed with prejudice if the 60-day abatement period is not reinstated or extended. To reinstate an abated case, the landlord must file a motion to reinstate within the 60-day abatement period and serve a copy of the motion on the tenant. The motion must show that the application for rental assistance has been denied, cancelled or withdrawn.

If you are interested in rental assistance, it would be beneficial to have the resident apply for assistance as early as possible in the eviction process. If you are not interested, you should be prepared to tell the judge you do not have a pending application for rental assistance involving the resident and you do not have an interest in participating in an available rental assistance program.

If you chose not to participate in a rental assistance program, it would be beneficial to explain to the judge the reason why you have chosen not to participate. The resident may have been uncooperative with respect to communicating with you in the past, the resident may have previously had rental assistance and you don’t think an application for rental assistance would be successful, or the resident has had conduct issues. You may have also decided not to participate in rental assistance because of the strings attached to the program (such as waiving fees or having to wait additional time after receiving assistance to take action for subsequent defaults).

Dotting the “i’s” and crossing the “t’s”

If legal aid is involved in your case, you can assume that you will be pressed to prove that you have delivered the notice to vacate properly and that you have complied with all applicable rules, regulations and requirements.

The notice to vacate must be delivered properly. 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 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 pm 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 main entry door. It would also be beneficial to take a picture of the notice affixed to the inside of the door.

Also remember to be prepared to state whether or not your property is subject to the CARES Act. 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 24-hour notice to vacate. However, if your property is subject to the CARES Act or the applicable HUD or Federal Housing Finance Agency rules, you would be required to give a 30-day notice in nonpayment of rent cases.

The eviction landscape is different than it was three years ago. It is conceivable that it will never get back to the way it was. A “new normal” will need to be learned and accepted. Be prepared!

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