"Possession is nine tenths of the law."
We’ve all heard the phrase but do we really know what it means? The most important meaning of that phrase – much to the chagrin of landlords – is that, just because you own it does not mean you can be in possession of it. When you lease a property to an individual, even if it is an oral agreement, you have given that person the right to occupy a property you own to the exclusion of you. These are referred to as possessory rights and they are quite often much stronger than ownership rights.
At some point we may find ourselves having to move out a tenant. This is much easier said than done. To get a full understanding of tenant and landlord rights, go to the following link: http://law.justia.com/texas/codes/pr.html and look up Title 8 which covers the obligations of both tenants and landlords. Having a good grasp of this information can save you money and time and help you avoid a lawsuit.
The best kind of landlord/tenant relationship is one where there is a written lease with all language required by law in it so that all parties are protected and able to leverage the law to the maximum.
If you do not have a written lease your tenant can be assumed to be on a month-to-month lease. Leases for less than a year do not have to be in writing but oral leases are ill-advised since the terms are nowhere spelled out. If a tenant is in violation of the terms of his lease, Texas law says he must be given three days written notice, either hand-delivered to an occupant or posted on the front door, to move before any legal action can be taken unless there is language to the contrary – such as one-day notice – in the lease.
It is never lawful to lock a delinquent tenant out of his property nor to move his belongings except after certain judiciary decisions are rendered, about which more later.
If you lock out a tenant before any decisions are rendered you must immediately let the tenant back into his residence immediately after being requested to do so. If you do not, you are breaking the law. If your tenant is not out of the property after the number of days allowed by law or your lease, you may then file suit for what is called FORCIBLE DETAINER, more commonly referred to as eviction.
There are fees to be paid – around $146 – that pay for the cost of the constable to serve the eviction notice to the tenant and for the court appearance. If the tenants cannot be reached, it is acceptable to post the notice on the door of the residence.
The eviction notice states in what Justice of the Peace Court and on what date the eviction hearing will take place – usually around 10 days from date of service. The tenant is required to show the court why he should not be evicted. In most circumstances, he will not be able to accomplish this, in which case, the plaintiff/landlord will have won his case.
But wait; the tenant still cannot be put out. He has about six days to appeal to the county court. Usually this will be a waste of the tenant’s time and money. If, after the appeal period has come and gone and the tenant has still not moved out and has not appealed, we move to Step No. 2, which is called WRIT OF POSSESSION.
A writ of possession is an order from the justice of the peace court that allows the landlord to move out the tenants. There is an additional nominal fee involved. With the writ of possession, the landlord or his agent may enter the property and remove all of the tenant’s personal possessions and literally put them out on the street. There is an exception. If the weather is inclement, the landlord or agent must wait for good weather before moving out the personal property.
Now, let’s assume you got your judgment and that you are owed money for back rent and possibly property damage. It is possible to exercise your judgment for the monies owed you, which can also include court costs and attorney’s fees. Your judgment is allowed to earn interest for up to 10 years, at which time the judgment expires unless you renew it. The statutorily permitted rate varies form time to time. You may satisfy the judgment by going after certain of the tenant’s property or cash he may have. In order to take this additional step, you must get a WRIT OF EXECUTION.
The law prohibits you from taking certain personal property and certain amounts of cash from the tenant. It is a long list and the Justice of the Peace will have a copy of these things at his office. Make sure you filed the judgment from your eviction before taking this step. The judgment, by the way, will find its way to the tenant’s credit history.
Remember also that the law requires you to mitigate your rent losses by making a good faith effort to re-lease the property in question as promptly as possible; and you can only get the back rent judgment money for the time during which the property was vacant.
Also keep in mind that, if you are attempting to evict a tenant who has repeatedly asked you to make repairs for which Texas law holds you responsible, i.e., the fundamental sanitation and habitability of the property, you are breaking the law and could be sued.
The main take-away from all of this is that, Number 1, have your lease in writing, irrespective of the length of the lease and, Number 2, have an attorney who knows the Texas Property Code prepare a lease form for you to use.
Do not rely on lease forms available on the Internet or at office supply stores, because they just do not do the job.
Finally, I am not an attorney and this overview is a layman’s perspective. Always get sound legal advice.
Mike McEwen is a real estate broker with 31 years in the business.