A PRIMER ON LANDLORD -TENANT LAW IN TEXAS. Typical disputes leading to eviction, how to avoid them and how to deal with an eviction.

Transcription

1 A PRIMER ON LANDLORD -TENANT LAW IN TEXAS Typical disputes leading to eviction, how to avoid them and how to deal with an eviction.

2 Today we will cover Problems that lead to the filing of a court eviction. 2. The court eviction process 3. Appeals of evictions.

3 CLIENT/TENANT APPEARS IN YOUR OFFICE: Has been given a Notice to Vacate letter or Has been served with an Eviction Petition or Just comes in requesting help with the rent

4 Whether NTV or EP provides information on landlord s problems with the tenant. NTV normally states the problem (non-payment etc.) and gives a deadline for removing the problem or eviction will be filed. Sometimes NTV just says leave and does not give an opportunity to remove the problem. EP states reason for eviction specific breach of contract.

5 THIS LEADS US TO INQUIRE ABOUT THE EVENTS THAT CREATED THE TENANT S PRESENT CRISIS SITUATION *

6 Typical situations: Client has missed rent payments Client is accused of other breaches of the lease: Examples - loud parties, drug use, criminal activity, unauthorized occupants, unauthorized animals, etc.

7 Typical reasons for missed payments: Loss of job or reduction of work hours. Medical bills were paid instead of rent. Very often--- tenant withheld rent deliberately because the landlord failed to fix things. Sometimes tenants just plain make questionable decisions such as using rent money to buy Christmas gifts for the kids.

8 WE WILL COME BACK TO THE REASONS LEADING TO THE EVICTION BUT LETS JUMP TO THE MIDDLE OF THE STORY

9 I HAVE A COURT DATE NOW WHAT??????

10 IMPORTANT THINGS ABOUT COURT. * Make sure you get there early not on time, EARLY. * LL gets to tell their side of the story first. * Keep the story simple and chronological. * Get a copy of the judgment.

11 -- Landlord s attorney may try to speak to the tenant -- Some Justice of the Peace Courts have mediators available to meet with both parties and see if an agreement can be reached which becomes an order of the court. -- If the tenant admits to being behind on rent the judge usually stops listening and rules for the landlord. The reasons for being behind on rent USUALLY don t matter to the outcome of the case.

12 Unwritten agreements between the landlord and the tenant are generally unenforceable and only rarely get the judges attention. To get the judges attention both parties must agree that the unwritten agreement was reached so the question is whether the terms of the unwritten agreement were fulfilled. Example --- tenant says LL agreed to reduce the rent for April by $20 if tenant fixed the window. * Consider filing a written response/answer.

13 I LOST IN COURT What are my options now?

14 Post Judgment Options 1. Move out within 5 CALENDAR days. 2. Try to work a deal (negotiate) with the landlord. --- But be wary Landlord may take your money and still evict you if not done right. 3. Appeal and move. 4. Appeal and stay -- at least temporarily.

15 The appeal gotcha s There are 3 ways to appeal a. Cash appeal bond, b. Surety Appeal Bond, and c. Appeal Affidavit (Formal name Affidavit of Inability to Pay Costs on Appeal - also known as Pauper s Affidavit)

16 More details of filing an appeal. -- must be filed within 5 calendar days of judgment. -- Judge may reject (disapprove) the appeal affidavit for various reasons. (no hearing required) -- Landlord may challenge the appeal affidavit which could lead to rejection (disapproval). (hearing required)

17 IF THE AFFIDAVIT IS DISAPPROVED THE TENANT CAN APPEAL THE DISAPPROVAL TO THE COUNTY COURT. APPEAL OF DISAPPROVAL MUST BE DONE WITHIN 5 DAYS OF DISAPPROVAL.

18 The most important appeal detail. If the tenant has been evicted for non-payment of rent and the tenant is appealing by Affidavit Of Inability to Pay Court Costs the tenant must: ---- pay one rental period of rent into the court registry within 5 calendar days of filing the appeal affidavit AND ---- pay future rent into to the court registry within 5 calendar days of due date.

19 Counting the days and deciding what day to file the appeal or pay the rent into the court may be important. Generally waiting to file the appeal until day 5 is a good idea because it may allow the tenant a few extra days without having to make a rent deposit.

20 One more big gotcha on appeal. A lawyer may appear for the landlord on appeal even if the landlord was not represented by a lawyer in the Justice of the Peace Court If a proper 10 day notice, regarding attorney fees, has been given the landlord may add attorney fees to the amount sought in court even if there is no written lease. Most written leases provide for attorney fee liability without need of a 10 day notice.

21 Some additional information regarding the appeal The County Judge, or County Court Judge, may give more time to carefully reviewing the case. JP courts in urban areas can do 2 dozen or more evictions in one morning which doesn t leave much time to really listen to the details. If the tenant loses the appeal to the County Court a further appeal is possible but much more difficult to do. The chances of winning the second appeal are generally not good. But each case is different.

22 When the County Clerk receives the appeal from the Justice of the Peace Clerk, a letter is sent out informing the parties---- That the tenant will need to file an Answer (Response) if one has not previously been filed and has only 8 days to do so from the date that the appeal was received (transcript filed in county court). That the party filing the appeal may need to pay a filing fee to the County Clerk s office. USUALLY, the Affidavit of Inability to Pay Court Costs filed in the JP Court by the tenant serves as a waiver of this requirement.

23 WRITS OF POSSESSION Now you really do have to move! Ministerialy issued by the clerk of the court after a Judgment of eviction has been signed by the Judge. In Justice Court, will not be issued until at least 5 days have passed as appeal will, at least temporarily, stop issuance of Writ of Possession. In County Court some courts issue after 5 days some after 10 days. TRLA advocates believe 10 days is the correct way to apply the law.

24 The Constable or Sheriff will deliver the Writ at least 24 hours before the Writ will be executed. Which is legal language for the tenant will be evicted. The officer does not remove any of the tenant s property. It is the landlord or the landlord s agents who remove the tenant s property. The officer removes the tenant/household and keeps the peace. The landlord does not have to store the tenant s property.

25 WHAT IS A LANDLORD S LIEN? ---- Or what can my landlord take and keep to pay my debt?

26 A LANDLORD S LIEN Gives the landlord the right to take certain property of the tenant to sell and apply towards the debt. A rule of thumb for identifying property that can be taken is If it is an electrical item that plugs into the wall then it is subject to a landlord s lien Examples: TV s, computers, lamps, stereos, etc. but jewelry can be taken too Examples of things that cannot be taken: pots, pans, furniture, kids toys, tools of a person s trade, books, clothing Rented items and items that are not fully paid. But landlord must be on notice of those items.

27 MUSTS of a Landlord s Lien MUST be in writing. MUST be underlined or printed in conspicuous bold print in the lease agreement. TPC MUST not be a breach of the peace when property seized LL MUST most leave written notice of entry with an itemized list of items removed. Notice MUST state the amount of delinquent rent and contact info to pay debt and regain property.

28 LL may not charge for packing, removing, or storing property seized unless authorized in a written lease. Seized property may not be sold or otherwise disposed of unless authorized in a written lease. If sale authorized, LL must give tenant 30 days prior notice of sale.

29 ABANDONMENT Question: When can a landlord take property if there is no landlord s lien? Answer: When the tenant has abandoned the property Texas Property Code does not define abandonment but TAA leases basically state if tenant owes money to LL and has been away from the property for 5 days the property has been abandoned. Thus a standard of abandonment is established by the lease contract.

30 LET S RETURN TO THE PROBLEMS THAT LEAD TO EVICTIONS.

31 Biggest Reason: Failure to pay rent. There are many reasons for failure to pay rent. One common reason is the tenant s withholding of rent because the landlord has failed to make repairs. This is generally a legally fatal mistake. Rule number 1 for tenants should be: ALWAYS PAY THE RENT. The TPC has provisions for withholding rent but those provisions must be followed very carefully AND

32 THE MONEY WITHHELD MUST BE USED TO MAKE THE REPAIRS by a professional. Most tenants either just hold on to the money or use it for other bills. Withholding of rent should only be done at the instruction and with the assistance of a lawyer.

33 REQUESTING REPAIRS Should be done in writing. In order to withhold rent TPC states request must: -- be done in writing -- give the landlord a reasonable time to make the repair -- generally referring to health and safety issues -- request is to be sent to LL by Certified Mail.

34 Other breaches of the lease -- Unauthorized occupants. -- Always late with the rent. -- Damage to leased unit. -- Criminal Activity. -- Cannot evict for being a victim of family vio. -- Activities of guests. -- Tenant is responsible for activities of guests. -- Unauthorized pets. -- Its not my dog, I was just feeding it.

35 other topics as time allows Lockouts--- Notice before and at time of lockout. Contents of notice Lawsuit for improper lockout Lawsuit for Writ of Re-entry Utility Cutoffs ---- Water and Electricity. Not allowed except temp for repairs Lawsuit for improper cutoff. Lawsuit for restoration. Repairs lawsuit --- new law

36 Space keeper Space keeper

37 SOME FAIR HOUSING INFORMATION REASONABLE ACCOMODATION REQUESTS

38 Fair Housing means no discrimination. -- No discrimination because of traditional protections, such as race, religion, etc. But also means no discrimination against the disabled. It means the disabled should be able to enjoy the use of a leased property just as any non-disabled person can.

39 Reasonable Accommodation Request The Fair Housing Laws allow for the use of a Reasonable Accommodation request to enable the disable to use and enjoy leased property to the same extent as the nondisabled. Examples: --A blind person can have a seeing eye dog without having to pay a pet deposit. -- A person with a psychological need for a support animal can have a pet in a no pets apartment complex.

40 Fin The End Done Prepared by Ricardo A. Roman Texas Rio Grande Legal Aid Inc. Prepared January 2016 and Revised &