What is an eviction?
The legal term for eviction in the state of Texas is “forcible entry and detainer.” A tenant who refuses to leave a rental home or apartment is considered to be committing the act of “forcible detainer,” which is covered in Chapter 24 of the Texas Property Code.
What is an eviction notice?
A landlord must give a delinquent tenant at least three days written notice before filing an eviction suit. An eviction suit is a formal request for the court to order the tenant to evict from their home legally. This written notice is called an eviction notice. It can be delivered by mail, handed to someone in the household who is at least 16 years old, or taped to the inside of the main entry door. It can also be placed outside the door if you mail a second copy to them on the same day.
This notice serves only an intent to file suit. There’s no legal requirement that the tenant must vacate within three days. See below for how you can find eviction notice templates that you can use for your tenants if needed.
When would someone need to use an eviction notice?
Eviction notices are for when the tenant violates the lease. Evictions usually occur when they are behind on their rent payment, but it can be for any other violation of the lease, which is unrelated to money. Lease violations can include committing violent, illegal, or dangerous acts, which are also valid reasons for eviction.
Do you need to use a lawyer to evict someone?
If the eviction is for non-payment of rent or holding over beyond a lease’s expiration date, you’re not required to use a lawyer. If the eviction is for other reasons, you will need a lawyer to represent you.
However, for any eviction, it’s often smart to work with an attorney who has experience handling eviction cases in your vicinity. They can assist you with the eviction process and make sure you comply with the law, as well as represent your file when it goes to court.
Is there a particular eviction notice form you have to use?
There is not one standard form. That is why it’s often prudent that you use a lawyer to draft the eviction notice for you. Alternatively, you can download a template online that has been created by an attorney.
How do you write an eviction notice?
You have a few options. You can hire a lawyer to draft a simple eviction notice and use that template for any evictions in the future. If you own multiple rental properties, this would be the best route to take.
You can also pay to use a service like LegalZoom, which offers generic templates written by lawyers that are accepted by the courts. You may also download a free template online, but there is no way to know the validity of these templates and whether they adhere to the law.
Some links for free eviction notice templates, although we cannot assure their validity, are:
Steven Frankoff offers some additional tips when serving the eviction notice to a tenant. “Take a photo of the notice when putting it on the door, so you have it time stamped. You should also provide a letter of eviction, explaining the reason(s) for the eviction – in addition to the eviction notice. Send the letter by Certified Mail, so you have proof it was delivered. Judges are prudent that the tenant has gotten proper notice of the lawsuit and has had the opportunity to respond. The eviction notice plus the letter of eviction covers these bases for the landlord.”
Do eviction laws vary by state? Do they vary by county in Texas?
While eviction laws do vary from state to state, they all share general commonalities. In this article, we are focusing on Texas eviction laws.
The Texas Property Code controls the framework for evictions and is uniform throughout different counties in Texas. However, there still may be some variations in rules, formatting requirements, and court procedures from county to county.
How soon after someone stops paying rent can you begin the eviction process in Texas?
According to Steven Frankoff, he recommends waiting until the tenant is 30 days behind on their rent before posting the eviction notice. Most leases allow a few days for the tenant to resolve their late payments and make it current. However, legally, you can file and post the notice as soon as one day after the rent was due and not paid.
What other situations allow a landlord to evict a tenant?
The answer to this question is dependent on the specific lease and what conditions it includes. Reasons for eviction can consist of extra people living in the home, having pets when not allowed, smoking inside, loud noise, doing illegal drugs, and more. But if these things are not in the lease, then they’re not considered a violation of the contract.
“The purpose of the lease is to serve as a legally binding agreement between the landlord and tenant, and it outlines what each party’s responsibilities are,” said Steven Frankoff. “This includes when the rent is due, where it is to be paid, and what happens when it’s not paid on time. The lease controls the standard set forth.”
What are the reasons you cannot evict a tenant for?
Invalid reasons for evicting a tenant in Texas include the tenant requesting repairs, reporting a complaint, or exercising their legal rights. Also, you cannot discriminate against someone due to race, religion, sex, disability, or others, which violate fair housing laws.
You also can’t evict a tenant if they’re in the military service. That said, being in the military doesn’t allow the tenant to avoid paying their rent. But, a judge can block the eviction for up to 3 months if their military service is making it difficult for them to pay their rent.
How does the eviction process work?
As the landlord, the first step is to deliver the eviction notice in one of the manners described above. The next step is to file the eviction suit at the justice court in the precinct where the rental property is located. There you will fill out paperwork providing information including:
- contact information for yourself and the tenant(s)
- address of the rental property
- reason(s) for eviction
- date and delivery method of the eviction notice
- the amount owed by the tenant
- if the tenant is in the military
- and more.
Filing the suit, cost can vary depending on circumstances. While you don’t need to bring evidence when filing the suit it is wise and you will need to bring proof with you on your court date when appearing before the judge.
When you file the suit, you must list all the tenants living there, whether they are on the lease or not. In some counties, you have to pay extra filing fees for each tenant. If you mistakenly only list one tenant on the eviction suit, then you’ll have to start the process all over to get the other tenants evicted.
Once the paperwork is filed, the county clerk will hand the case off to the constable, who will serve the tenant with a court summons. The summons lists the date and time that both the landlord and tenant must appear before the judge.
The burden of proof is on the landlord. So, bring all evidence to support your case on your court date, including, but not limited to: a copy of the deed, lease, rent receipts, bank statements, witnesses, complaints from other tenants, photos of any damage, and anything else to support your case. Make extra copies of all evidence, so you can hand a copy to the court and to the tenant, who is the defendant in this case.
If the tenant doesn’t show up on the court date, the court will automatically rule in favor of the landlord, and the tenant has five days to vacate or appeal the ruling. If they choose to appeal, they still must pay the rent due within five days of the court ruling. The same goes if the tenant does show up, and the judge rules in your favor after the hearing. This ruling also includes the amount the tenant owes you, including court costs, rent, interest, late fees, and penalties.
If the judge rules in favor of the tenant, then the landlord has five days to appeal the ruling. See more details below on the appeal process.
What is a writ of possession?
If the tenant doesn’t move out within five days of the judge’s ruling without filing an appeal, you will need to go back to the court to request a writ of possession. A writ of possession is a court order in which a constable oversees the removal of the tenant and costs the landlord, on average, about $150.
The writ is then passed on to the constable’s office, and the constable will physically deliver a copy to the tenant. If the tenant is not there, the constable will leave a copy of the writ, affixing it to the outside of the tenant’s front door.
After a Texas writ of possession is delivered, the earliest a constable can come back and move the tenant out is 24 hours. If they are not out and if weather permits, the constable will physically remove the tenant and their property. If the tenant refuses, they will be arrested. However, constables are prohibited by law from removing a tenant if it is sleeting, raining, or snowing outside.
The constable will supervise the removal of the tenant’s possessions from the home and place them outside of the property. It’s the landlord’s responsibility to hire movers or a trash disposal service to get rid of the tenant’s belongings if left behind.
What is Constructive Eviction?
Constructive eviction is when a landlord tries to force a tenant out by shutting off the power or changing the locks. This type of action is illegal and obviously, not recommended. The tenant could turn around and sue you for taking those actions.
How much does it cost to file for eviction?
Landlords must be prepared to spend time and money on the eviction process. While some costs may vary by county, the total price can add up to about $200 – $250 for court filing fees alone. That total does not include lawyer fees, appeals, or damages to the property caused by the tenant.
How long does the entire eviction process take from start to finish?
It varies but generally takes about 30-40 days after the eviction notice is served. The appeal process can drag it out longer.
How does the appeal process work?
Both tenants and landlords have a 5-day window of time to dispute the court-ordered eviction. The tenant must file an appeal bond with the court or a signed statement of inability to afford the appeal bond with the clerk of the court.
The court then considers the case as a do-over, and the previous judgment is disregarded. The landlord must again prove that they’re entitled to the immediate possession of their property.
Whether the tenant files the bond or the statement of inability to pay, they cannot remain in the unit unless they pay one month’s rent to the court’s registry. If the appeal takes longer than a month, the tenant must continue to pay their monthly rent through the registry. If the tenant fails to pay their rent this way on time, the landlord can petition the court to have the tenant immediately removed from the property.
The court that is being appealed from will set the cost of the tenant’s appeal bond. For landlords, the expense of an appeal will vary based on the attorney they hire. Even if you didn’t use an attorney in the first trial, it’s highly recommended that you do use one for an appeal. It’s best to find an attorney that will represent you for a flat fee, so you know upfront exactly how much it will cost. Expect to pay anywhere from $800 – $2,500.
Does the landlord get to keep the security deposit, even if there is no damage to the home they evicted the tenant from?
In most eviction cases, yes. It depends if the tenant is current on their rent, if there was damage to the property, and what the lease says about the security deposit. Typically, the landlord does get to keep the tenant’s security deposit, but they will need to provide special notice to the tenant, as provided for in the Texas Property Code. If the tenant isn’t notified their deposit is not being refunded, the tenant may be able to sue the landlord for the deposit, damages, and attorney fees.
How do I evict a tenant without a lease?
It’s easier to evict a tenant without a lease because they are considered month-to-month tenants, and you wouldn’t need to break a long-term lease. You would need to inform them in writing with 30 days’ notice that you’re not going to rent to them anymore. If they refuse to leave at the end of the 30 days, then you’ll have to take legal action following the same eviction process as outlined above.
Can a tenant claiming bankruptcy stop an eviction?
Once the eviction process has begun, the tenant may use his bankruptcy claim as part of his defense before the judge. The judge is the only one who decides whether the eviction is granted or not.
Are there any ways tenants may stop or stall the eviction? If so, how?
Yes, tenants have five days to appeal, which can stall the eviction. “If the tenant has been wronged, then they should appeal,” said Attorney Steven Frankoff. “But they shouldn’t do it for frivolous reasons. For instance, if the tenant pays the rent due in full after getting the notice, and the landlord doesn’t accept their payment, that’s a valid defense to bring before the court.”
My tenant’s lease expired, but they won’t leave. Do I still need to file to evict them to get them out?
If the tenant has not given you back the key, you can still get control of the apartment. File a petition with the court stating the rental has been abandoned, but the keys were not returned. The judge can then grant you permission to change the locks and throw out anything that’s left behind inside. Again, the landlord should never change the locks without possession of a court order to do so.
I’ve filed an eviction notice, and my tenant wants to pay the past-due rent. What now?
If the tenant wants to pay the rent that’s due, the landlord should take the money – plus any fees and penalties incurred, whether the petition has been filed or not.
“If the tenant tries to make you whole, do it,” advises Steven Frankoff. “If they can’t make the whole the payment, don’t accept a partial payment – it’s all or nothing – including any fees the landlord had incurred in starting the eviction process.”
Does the tenant still owe the landlord the balance of the lease or whatever early lease termination remedies were specified in the contract if the landlord evicts them?
Yes, the landlord has the right to demand the remaining balance on the lease. The tenant is still on the hook for those payments until the unit has been re-rented to another tenant.
I’m not a landlord, but the lease is in my name, and I want to evict my roommate. Is this possible?
If only your name is on the lease, we recommend you also have a lease with any roommates before they move in. This sub-lease will come in handy if you have to evict your roommate at some point.
If you don’t have a sub-lease or both your names are on the lease, and they will not leave after you give them 30 days’ notice, then you’ll need to talk to a lawyer.
I have a family member living with me that will not leave my home. Is it possible to evict them?
You can, but it should be done through the family court system in your county, as this is a family law matter. Go through the process to obtain a restraining order, which is a court order that will keep that family member away from the residence.
Can a husband evict their wife or vice versa?
Yes, but the same as above – it should be done through obtaining a restraining order through the family court.
Can a landlord evict a tenant for domestic violence occurring in the rental?
Yes, domestic violence is certainly a valid reason for evicting someone.
My tenant is disabled. Am I still allowed to evict them?
Yes, you may evict a disabled tenant through the same process as you would with any other tenant.
My tenant is terminally ill. Can I still evict them?
Yes, you may, but it will be challenging to do so.
My tenant has made a partial rent payment. Can I still evict them?
No, because accepting a partial payment may waive the rest of the balance owed. If you take a partial payment, you’re undercutting your argument in front of the court. For instance, if they pay half of the past due rent payment, they just paid for the next two weeks’ worth of rent. You may still be able to file an eviction, but accepting partial payment may hurt your chances of receiving a ruling in your favor.
Can you evict a tenant with children?
While an unfortunate situation, the answer is yes. It is the same as any other eviction.
Squatters took up residency in an empty home I own. Can I evict them?
Squatters are certainly an inconvenience to landlords, but they still have legal rights in Texas. If you discover squatters on your property, the first step is to contact the police, as it may be considered a break-in, and the squatters will be forcibly removed.
To learn more about squatters’ rights in Texas, click here. If they have a legal right to stay on the property, you may still evict them, but you would need to file an eviction suit against the squatter(s).
Can a landlord evict a tenant because they want or need to sell the house?
In Texas, it depends on the type of lease you have with your tenant, and if the lease includes that upon notice of sale, the tenant loses their rights.
However, if it’s not in the lease, then it becomes more difficult. If it’s a month-to-month lease, or there is no lease at all, then you can take advantage of eviction without cause. If you have a longer length lease, then the landlord needs to wait until the end of the lease period to evict the current tenant.
Can you evict a tenant due to the property sustaining damage and being unsafe from a natural disaster, like flooding?
According to the Texas Property Code, the landlord may terminate the lease by giving written notice to the tenant at any time before repairs complete. If the dwelling is unusable and the lease terminated, the tenant must vacate, or the landlord can file an eviction suit. If the landlord ends the contract for an unusable dwelling, the tenant is entitled to a pro-rata refund of rent from the date the tenant moves out, and their security deposit must be refunded.
If the tenant disagrees that the unit is unusable for residential purposes and does not leave, the landlord cannot remove the tenant from the dwelling. Instead, they must file an eviction suit. Once in court, the tenant can state in their defense that the property is not unusable and should not have been subject to lease termination. As with any other eviction case, it’s for the judge to decide the ruling.
My tenant is on Section 8. Can I still evict them?
Yes, you can evict a Section 8 tenant. The first step would be to notify the state agency paying the rent. After the landlord tells the housing authority of their intent to evict the tenant and the period permitting the tenant to rectify the problems ends, the eviction process continues like any other eviction.
A tenant did a lot of damage to my home during the eviction process. Do I have any legal remedies?
Legally, you are entitled to get that money back. If there’s severe damage, then hold onto the deposit and add those damages to the tenant’s bill that are you seeking to collect through the court.
What are the common mistakes that landlords make when evicting a tenant?
Below is a list of things that landlords should not do. These actions can give the tenant grounds on which they can challenge the eviction in court, with the result being a judge’s ruling in the tenant’s favor:
- Do not try to evict a tenant outside of going to court. Changing the locks or turning off their electricity is illegal.
- Don’t make administrative mistakes. Make sure you follow the correct procedures when delivering the eviction notice. A small mistake can cost you a significant amount of money and time if the tenant appeals.
- Don’t lack substantial evidence. Make sure to provide as much evidence as you can to support your case when it’s presented to the judge.
- Don’t get emotional. Remember, this is a business decision. Stay calm, professional, and keep your personal feelings out of it. Even if the tenant is difficult, don’t lower yourself to their level.
- Don’t go into the home unauthorized. Most leases require that the landlord give the tenant 24 hours’ notice before entering the unit.
- Don’t threaten to keep the security deposit. Legally, you can only keep the security deposit if it’s in the judge’s ruling. Also, threatening to keep the security deposit can be an incentive for the tenant to damage the home.
What is “cash for keys”?
“Cash for keys” is a widespread practice that landlords use to get a tenant out without having to go through the costly and timely eviction process. It’s paying the tenant to leave. It may seem illogical, but it can save landlords a lot of money in the long-run. For instance, if the landlord offers the tenant $1,000 to move out of the home within a certain amount of days and leave it in good condition, they avoid all the expenses involved with an eviction. Many landlords won’t consider this option based on principle, while other landlords see this as a practical solution.
Evictions can be very unpleasant, time-consuming, and costs can add up. Depending on your situation, it may be best to work with a lawyer who can handle the process for you, assuring that you are complying with the laws. You can do a Google search for an eviction lawyer in your area. Or you can contact Steven Frankoff if you are seeking legal counsel in the Houston, Texas area regarding evictions.