Owning rental properties can be an excellent investment – at least it feels that way when property values are rising and you have a good tenant who pays the rent on time and takes care of the property.
However, even with a good property, well maintained, and stringent tenant screening procedures, unexpected things can happen and you may be required to evict a tenant. The good news is that in Texas, the process is not overly complex.
The first step is to confirm that you have the right to file an eviction. This requires being able to prove that you either own the property, or that you have the right to control it. Usually, a lease is good enough, but if there is no lease, you may need to be prepared to show the deed to the property. Other issues may arise such as a property with more than one owner, and only one of them wants the tenant evicted – this is enough to allow the tenant to stay in the property. Another is a property which was owned by a person who is now dead. Until there is a probate of the deceased person’s will, or an administration of their estate, no one actually has the right to evict anyone staying in the property.
The next step is to review the lease and confirm that the behavior you’re unhappy with is actually a lease violation. The most common reason for evictions is non-payment of rent, which is virtually always going to be a lease violation. However, some leases require that the tenant also do things such as provide proof of liability insurance, comply with certain property rules, mow the grass, comply with local laws and ordinances, or avoid causing a disturbance to other tenants.
Next, you will need to send a notice to vacate. (A recent change in the law allows the landlord to give either a Notice to Vacate or a Notice to Pay Rent or Vacate.) The notice should identify the actions which are violations of the lease, and demand possession of the property, and must give at least three days’ notice before the eviction can be filed with the court. (Ten days’ notice is required in order to collect attorneys’ fees if there is no written lease that provides for fees.)
The Notice to Vacate must be delivered by 1) first class, registered mail, certified mail, or a delivery service; 2) delivery to the inside of the property, in a conspicuous place; 3) hand delivery to any tenant of the property who is at least 16 years of age; or, if the parties have agreed in writing, notice may be sent by Email or other electronic means. We typically deliver a copy of the notice to the property, and also send the notice by first class and certified mail, as well as by email. This limits the tenant’s ability to effectively complain that they did not receive the notice. (But note, the legal requirement is to send the notice – it’s helpful but not necessary to prove receipt.)
After the notice is sent and the required time given, you can go to the Justice of the Peace court in the Precinct where the property is located to file the eviction petition. The Justice courts have forms for this. In order to determine which precinct a property is in, you can call any Justice of the Peace or Constable, and give them the property address. There’s also a website that can confirm the proper precinct –
https://experience.arcgis.com/experience/8b1fe70e5b024ad3ab0f86e2abee8871.
You will want to be sure that the lease violation(s) listed in your Petition match those that you used in your notice to vacate.
You will need to file an affidavit that your defendant is not in the military, and obtain a certificate from a website confirming that fact. https://scra.dmdc.osd.mil/scra/#/home
After the petition is filed, the court clerk will issue a citation, which must be served by the constable (private process servers are not allowed for eviction cases.) Some courts will assign a trial date when the petition is filed, and some will not assign the trial date until the citation is served.
On the day of trial, you will want to show up at the courthouse in plenty of time for the trial, even though you may have to wait for other cases to be heard. You will present your evidence (the lease, the Notice to Vacate, and any other evidence showing that the tenant has violated the lease and should be evicted. This will require testimony by someone (the landlord or a property manager) who can testify to the facts supporting the eviction. And no, your attorney cannot testify for you, so someone will have to appear that can testify to the facts.
In an eviction, you can be awarded unpaid rent, attorneys fees (if you incurred fees and the lease and/or notice allow for recovery of fees), court costs, and possession of the property. If there are damages to the property, those must be pursued in a separate suit.
Assuming the eviction is successful, one of two things will happen by the 6th business day after the trial. Either the tenant will appeal the case to County Court, and the case will be re-tried there (usually with the same result). Alternatively, if there is no appeal and the tenant has not moved out yet, you will need to ask the clerk of the court to issue a writ of possession. This allows the Constable to go out and physically remove the tenant. The landlord will need to be present, and will need to pay for a locksmith to change the locks and a mover to move the tenant’s possessions to the street.
Congratulations, now you get to do necessary repairs and find a new, and hopefully better, tenant.
If you have questions or run into problems, call your favorite lawyers.
