"Notice of Petition Eviction"
EVICTIONS Laws & Procedures presented by: Judge Al Cercone Justice of the Peace Dallas County, Pct 3, Place 1 Fax: (214) 321-4912 e-mail: email@example.com 1 FORCIBLE DETAINER a person commits a forcible detainer if the person is a tenant of the landlord and the person refuses to surrender possession of real property on demand. PC §24.002 2 FED - FORCIBLE ENTRY AND DETAINER a person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand. PC §24.001 3 Venue A suit for forcible entry and detainer shall be brought in the precinct in which all or part of the premises is located. Civil Practice & Remedies Code § 15.084 4 Jurisdiction A justice court in the precinct in which the real property is located has jurisdiction in eviction suits. GC §27.031 & PC §24.004 5 Prior to filing an eviction… a landlord must make written demand for possession from a tenant. PC § 24.002(b) NOTE: By refusing to surrender possession of the property “on demand”, a tenant commits a “forcible detainer”. 6 The “Notice to Vacate” should be for how long? It depends… If the occupant is a tenant under a written lease or oral agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period a notice to vacate for as long or as short a period of time as the parties have agreed to in a written lease or agreement. 7 The “Notice to Vacate” should be for how long? Absent a written contract provision for a notice period, the landlord must give at least three days’ written notice to vacate the premises before the landlord files an eviction suit. PC § 24.005(a) 8 The “Notice to Vacate” should be for how long? If the occupant is a tenant at will or by sufferance, the landlord must give the tenant a notice to vacate for as long or as short a period of time as the parties have agreed to in a written lease or agreement. 9 The “Notice to Vacate” should be for how long? Absent a written contract provision for a notice period, the landlord must give at least three days’ written notice to vacate the premises before the landlord files an eviction suit. PC § 24.005(b) 10 The “Notice to Vacate” should be for how long? If a building is purchased in a tax foreclosure or trustee foreclosure sale under a superior lien to the tenant’s lease, and the tenant is not in default, 11 The “Notice to Vacate” should be for how long? the purchaser must give 30 days’ written notice to vacate, if the purchaser chooses not to continue the lease. PC § 24.005(b) 12 The “Notice to Vacate” should be for how long? If the occupant is a tenant of a person who acquired possession by forcible entry, the landlord must give the person at least three days’ written notice to vacate before the landlord files a forcible detainer suit. PC § 24.005(c) 13 The “Notice to Vacate” should be for how long? If the occupant acquired possession by forcible entry, the landlord must give oral or written notice to vacate immediately, or by a specified deadline before the landlord files a forcible entry and detainer (FED) suit. PC § 24.005(d) 14 What is the effect of Government Housing/Assistance on the Notice? • If a lease or applicable law requires the landlord to give the tenant a “notice of a the breach and time to cure” • the “notice to vacate” may not be delivered until after the expiration of the time to cure. PC § 24.005(e) 15 How do we calculate the Notice Period? The notice period is always calculated from the day on which the notice is delivered. PC § 24.005(g) 16 What are the proper Delivery Methods for a “Notice to Vacate”? Notice shall be given by: 1. mail; or, 2. in person to a tenant or any person residing at the premises who is at least 16 years old; or 3. by affixing to the inside of the main entry door. PC § 24.005(f) 17 Method of Delivery Exception If there is no mailbox, and there are animals or other devices preventing the landlord from entering the premises to attach the notice to the inside of the door, then the landlord may attach the notice to the outside of the main entry door. PC § 24.005(f) 18 When does a month-to-month tenancy become “Holding Over”? A landlord who files suit on grounds that the tenant is holding over must also comply with the tenancy termination requirements of Section 91.001. PC § 24.002(a) 19 NOTICE for TERMINATING PC § 91.001(a),(b),(c),(d), & (e) A tenancy from rent paying period to rent paying period, may be terminated by the tenant or the landlord giving notice of termination to the other. 20 NOTICE for TERMINATING PC § 91.001(a),(b),(c),(d), & (e) Tenancy terminates on whichever is later: • the day given in the notice; or, • the day following the term of a rent paying period; 21 NOTICE for TERMINATING PC § 91.001(a),(b),(c),(d), & (e) If the parties agree in writing to a different termination date, or if there is a breach of contract recognized by law, the notice under this section does not apply. 22 For an Eviction Suit, what does the court require a landlord to file? When the party aggrieved or his agent shall file his written sworn complaint; the justice shall immediately issue citation T.R.C.P. RULE 739 23 What information has to be included in the COMPLAINT? • Shall describe the property with sufficient certainty to identify it; • shall state the facts which entitle plaintiff to possession; Rule 741 24 What information has to be included in the COMPLAINT? • should list all home and work addresses of the defendant to facilitate service; Rule 742a • may add a suit for rent “due;” and, Rule 738 • may add attorney’s fees. PC § 24.006 25 What information has to be in the CITATION? Citation must command defendant to appear before such justice at a named place and time not more than 10 days nor less than 6 days from the date of service; and, 26 What information has to be in the CITATION? it shall inform parties that upon request and payment of fee no later than 5 days after defendant is served case shall be heard by jury. TRCP Rule 739 27 What information has to be in the CITATION? • In the citation to be served upon a tenant in an eviction suit, in addition to the required statement, “FAILURE TO APPEAR FOR TRIAL MAY RESULT IN A DEFAULT JUDGMENT BEING ENTERED AGAINST YOU”, • the 1st page of the citation must also include the following in English and Spanish: 28 What information has to be in the CITATION? • SUIT TO EVICT • THIS SUIT TO EVICT INVOLVES IMMEDIATE DEADLINES. CALL THE STATE BAR OF TEXAS TOLL-FREE AT 1-877-9TEXBAR IF YOU NEED HELP LOCATING AN ATTORNEY. IF YOU CANNOT AFFORD AN ATTORNEY, YOU MAY BE ELIGIBLE FOR FREE OR LOW- COST LEGAL ASSISTANCE. PC § 24.0051(d) 29 Can a landlord recover “rent due” in an eviction? The landlord’s sworn statement seeking eviction is sufficient to recover both possession and unpaid rent from a tenant. PC § 24.0051 30 In Eviction Suits, can the parties recover attorney fees? A written lease entitles recovery of attorney’s fees. PC § 24.006(b) 31 In Eviction Suits, can the parties recover attorney fees? Otherwise, the notice to vacate must state that if the tenant does not vacate before the 11th day after the day of receipt of the notice, if the landlord files suit, the landlord may recover attorney’s fees. 32 In Eviction Suits, can the parties recover attorney fees? It must be sent by registered or certified mail, return receipt requested, at least 10 days before filing suit. PC § 24.006(a) 33 What is a BOND for IMMEDIATE POSSESSION? A possession bond may be filed by the plaintiff with the complaint, or anytime before final judgment, for an amount to be set by the justice. Rule 740 34 What is a BOND for IMMEDIATE POSSESSION? Defendant must be served notice of the plaintiff’s possession bond, which requires the tenant to either file a counterbond, for an amount to be set by the justice, or demand a trial before the expiration of 6 days after being served with notice of bond. Rule 740(a) & (b) 35 What is a BOND for IMMEDIATE POSSESSION? If defendant does neither, and thereafter fails to appear at the hearing, writ of possession shall be issued after default judgment is granted to plaintiff. Rule 740(c) & (d), and PC § 24.0061(b) 36 How should the Eviction cause be Docketed and Tried? If the defendant shall fail to enter an appearance upon the docket or file answer before the case is called for trial, the allegations of the complaint may be taken as admitted and judgment entered by default accordingly. 37 In all Residential Evictions for non-payment of rent, what questions must the court ask? Each judgment in a nonpayment of rent case must include a finding of: The amount of rent due by the tenant for each rental pay period during the appeal; and, Where a portion of rent is paid by a government agency: The portion of rent paid by the tenant; and, The portion of the rent paid by the government agency. PC § 24.0053(a). 38 Default Judgment The court shall notify a tenant in writing of a default judgment by sending a copy of the judgment to the premises not later than 48 hours after entry of judgment. PC § 24.0061(c) 39 Nonlawyer Representation A corporation need not be represented by an attorney in justice court. Gov’t. Code Ch. 27.031(c) 40 Nonlawyer Representation In eviction suits for nonpayment of rent or holding over, the parties (both landlord and tenant) may represent themselves, or be represented by their authorized agents, who need not be attorneys. PC § 24.011 41 Nonlawyer Representation In any eviction suit, an authorized agent requesting or obtaining a default judgment need not be an attorney. PC § 24.011 42 Nonlawyer Representation In any eviction suit, an authorized agent requesting or obtaining a default judgment need not be an attorney. PC § 24.011 43 TRIAL & JUDGMENT • May be postponed no more than 6 days for good cause shown, supported by affidavit. Rule 745 • The right to actual possession is the only issue to be tried. Rule 746 44 TRIAL & JUDGMENT If judgment or verdict for plaintiff, justice shall give judgment for possession, costs, and damages, and shall award writ of possession. If for defendant, justice shall give judgment for costs and any damages. Rule 748 45 What is the effect of Bankruptcy on an Eviction Suits? • If it is filed before any judgment or order from the JP court, filing for bankruptcy protection invokes an automatic stay • No further state court action can be taken until: 46 What is the effect of Bankruptcy on an Eviction Suits? • landlord procures a lift of stay, • the bankruptcy is dismissed, • it is terminated for other reasons, or • post-filing facts give rise to a new obligation that allows for judicial action (e.g. lease termination post-petition) 11 USC 362(a)(2)(3) & (e) 47 What is the effect of Bankruptcy on an Eviction Suits? • An exception exists for a tenant being evicted for drug use or other endangerment to the property where the landlord files a certification with the bankruptcy court. 11 USC 362 (b)(23). 48 What is the effect of Bankruptcy on an Eviction Suits? • The automatic stay does not apply when the debtor files for bankruptcy protection post JP eviction judgment, • and the JP court can issue the writ of possession to the landlord. 11 USC 362(b)(22) 49 When can the court issue the Writ of Possession? Unless plaintiff is entitled to immediate possession because of a possession bond and judgment by default, no writ shall issue until the expiration of 5 days from the time the judgment is signed. Rule 748 50 When can the court issue the Writ of Possession? If the 5th day falls on a Saturday, Sunday, or legal holiday, it does not count. You must move the 5th day to the next day that is not a Saturday, Sunday, or legal holiday. Then, on the day following the new 5th day, you may issue the writ. Rule 4 51 Legal Holidays Rule 4 of the TRCP, and § 311.014 of the Government Code, both state that the last day of a time period is not to be counted if it falls on a Saturday, Sunday, or legal holiday. Government Code § 662.003(a) & (b), lists all “legal holidays”, even if the court is open that day. 52 Federal Holidays 1. 1st day of the year – “New Year’s Day” 2. 3rd Monday in Jan. – “Dr. MLK, Jr. Day” 3. 3rd Monday in Feb. – “President’s Day” 4. Last Monday in May – “Memorial Day” 5. Fourth day in July – “Independence Day” 6. 1st Monday in September – “Labor Day” 7. 11th day of November – “Veterans Day” 8. 4th Thursday in Nov. – “Thanksgiving Day” 9. 25th day of December – “Christmas Day” 53 State Holidays 1. 19th of Jan. – “Confederate Heroes Day” 2. 2nd of March – “TX Independence Day” 3. 21st of April – “San Jacinto Day” 4. 19th of June – “Emancipation Day in TX” 5. 27th of August – “LBJ Day” 6. The Friday after Thanksgiving Day 7. The 24th day of December 8. The 26th day of December 9. Optional Holiday – can include the day of Good Friday, Rosh Hashanah & Yom Kippur 54 APPEAL? • Appeal bond must be filed within 5 days after judgment is signed, in an amount set by the justice. Rule 749 55 APPEAL? Appellant may file a pauper’s affidavit to appeal. Unless contested by the opposing party within 5 days of filing the affidavit, the justice shall accept it as the truth. PC § 24.052 & Rule 749a 56 APPEAL? During a pauper appeal for a non-payment of rent eviction, the tenant must pay rent when due to the Justice Court or County Court. PC § 24.053(b) 57 APPEAL? If the tenant fails to pay rent when due into the registry of the court, the landlord may submit a written sworn “notice of default” in the County Court. After a hearing, if rent has not been paid, the County Court shall issue a Writ of Possession. TRCP 749(b)(3) 58 When is the APPEAL PERFECTED? • When a proper bond, or a pauper’s affidavit has been filed, the appeal shall be perfected. Rule 749c 59 APPEAL PERFECTED • When an appeal has been perfected, the justice shall stay all further proceedings on the judgment, and immediately make out a transcript of docket entries and shall immediately file it, original papers, and money in registry, with the clerk of appeal court. Rule 751 60 What happens when a PAUPER APPEAL is CONTESTED? • Upon filing a pauper’s affidavit the justice or clerk of court shall notice the opposing party within one working day in writing by 1st class mail. • If contest is timely filed, the justice shall set a hearing and rule within 5 days. 61 What happens when a PAUPER APPEAL is CONTESTED? • If, after a hearing, the justice disapproves the pauper’s affidavit, • appellant may appeal the matter de-novo to the county judge within 5 days, who must set a hearing within 5 days. • If the county judge also disapproves the affidavit, the appellant has 5 additional days to perfect the appeal. Rule 749a 62