How the Eviction Process Works

A Story by Kristopher Hochart | Updated 08/29/2019 12:00pm


Owning property is a complex business, but it comes with a simple truth: At some point, at some place, for some property, you will have to manage and execute a lawful eviction.

This “E-word” is something that often strikes fear into the hearts and minds of relatively inexperienced landlords. That’s not necessarily warranted. But it is important that you handle the eviction in accordance with the details of the law, dotting every “i” and crossing every “t”. If you don’t, a judge is likely to invalidate your eviction effort, wasting the time and money you’ve spent and either saddling you with an unwanted tenant or sending you back to Square One to try threading the eviction needle all over again.

How Does the Eviction Process Work in Texas?

When your eviction gets to court, as they all must do, you are likely to find that judges in Texas tend to rule even more favorably toward tenants than they do in other jurisdictions.

It doesn’t matter if your tenant has withheld your rent for many months, violated your lease many times, or even significantly degraded the value of your property. If you haven’t followed the exact procedures laid down in Texas law, or if you’ve made an honest mistake in how you’ve brought your tenant into court, the judge will invalidate your eviction efforts and allow your tenant to remain in your property.

To help you even the odds of succeeding in your next eviction process, here are some important guidelines and suggestions:

When Can I Start the Eviction Process?

The time to begin an eviction process depends on the nature of the problem with your tenant, as well as the exact terms of the lease.

Eviction for Cause

In Texas, you may terminate a tenancy before the end of the lease only when you have good cause to do so. For example, you can begin the eviction process when:

  • Your tenant fails to pay the required rent on a timely basis,

  • Your tenant violates some other term of the lease, such as making too much noise, having too many occupants in the unit, or wrecking the place.

If the tenant is late with the rent, you can’t begin the eviction process until the rent remains unpaid beyond the payment date specified in the lease.

If the tenant is making too much noise, you can’t begin to evict until you’ve notified the tenant of the noise problem at least two or three times. It’s helpful if the excessive noise complaints are backed up by formal police reports.

If the tenant has too many occupants in the unit or is wrecking the place, you can begin the eviction process as soon as you learn of this lease violation.

Eviction Without Cause

You can also evict the tenant “without cause,” but only if the tenant is occupying the premises on a month-to-month basis. In this case, you need only provide the tenant with 30 days or more advance notice of the date you want him or her to vacate your property.

The formal notification you give the tenant must specify the last date of tenancy that you will allow, and must also state explicitly that you’re requiring the tenant to vacate the property on or before that date.

What Are My First Steps in the Eviction Process?

Let’s say you’re trying to evict a tenant for non-payment of rent (the most common cause of action in landlord / tenant disputes). Your first step is to let your tenant know that you’re proceeding toward an eviction.

In practice, this means you must give the tenant formal notice that he or she is late paying the rent. When doing this, be sure to adhere to the terms of the lease: good ones always state exactly when the rent is due and what happens when it’s not paid.

If this first notification doesn’t get the tenant to pay all back rent that is due, Texas law mandates that you deliver a Three Day Notice to Pay or Vacate. Get the proper form and fill it out completely. Send the completed form by Certified USPS Mail, or post it directly on the premises the tenant occupies.

This Three Day Notice does not require you to allow the tenant to pay the back rent or fix any other violation of the lease that’s prompting you to start eviction proceedings.

To document delivery of this Three Day Notice, you should make copies of the filled-in form, retain the USPS paperwork you obtain when you mail it, or take photos of the Three Day Notice posted prominently on the premises. You should also record the date and time you took your actions to deliver the Notice.

Usually, delivering the Three Day Notice to Pay or Vacate gets the tenants’ attention, makes clear that you’re serious about lease violation(s), and motivates the tenant to start conforming to all the requirements of the lease.

Court Filings for Eviction

If the Three Day Notice doesn’t solve the problem, however, your next step is to file your eviction paperwork with the Texas Justice Court in the county where your rental unit is located.

This court then sets a date and time for the official eviction hearing, where you and the tenant are expected to appear and make your arguments.

This court will also authorize an officer of the law to “serve” your tenant with the full complaint you have filed. After official “service” of this complaint, your tenant gets fourteen days to file his or her response. In theory, this filing will set forth the defenses the tenant is going to assert in an attempt to convince the court to rule against you.

Generally, at this eviction hearing a judge will listen to your side of the story and also to the tenant’s response to it. If you’ve got good reason to evict this tenant, you’ve provided documentation to support your story, and you’ve followed all the detailed requirements of the law, you can expect the judge to rule in your favor. The result will be a court order for the tenant to move out by a specific date not too far in the future.

But if you’ve skipped any steps, or failed to provide convincing documentation, or the tenant can show you haven’t followed the law or you’re being unfair, the judge will allow the tenant to stay.

In most instances, the losing side in this hearing must pay all the winning side’s court costs and attorneys' fees.

Can the Eviction Process Be Stopped?

Some tenants just wait for the eviction process to play out and then leave the property by the court-ordered deadline. But for a variety of reasons, some tenants fight back against your efforts to evict them.

One of the most common ways that tenants fight against potential eviction is to claim that you have not properly followed all the laws governing the eviction process. For example, a judge can – and probably will – invalidate your eviction efforts if the tenant can demonstrate that:

  • You did not properly deliver the necessary notices, or

  • You filled out a form incorrectly, or

  • You moved too quickly from notifying the tenant of the problem to instituting eviction proceedings.

Another line of defense against eviction is for the tenant to complain, and/or try to demonstrate, that you have not maintained the rental unit up to the standards that the law demands, effectively rendering it “uninhabitable.” These standards vary from one jurisdiction to another, but they tend to be fairly basic. And, of course, the tenant is required to have informed you in writing of the specific health or safety problem. What’s more, this defense works only when the tenant’s rent is fully paid.

In other words, if you maintain your rental units at or above a decent standard of living (luxury is not required), this defense will not work very well against you.

A third approach to fighting eviction is for the tenant to assert that you tried to force the tenant out of the property. For example, if you changed the locks and did not give the tenant the new key, or turned off the water, electricity, and/or gas to the unit, the judge will allow the tenant to stay, simply because these and other similar actions are against Texas law.

There are two other possible defenses against eviction in Texas.

  1. A tenant can claim you are trying to evict him or her simply because he or she is exercising a legal right, such as those granted by the lease, by local municipal ordinance, or by a federal or state statute.

For example, a tenant may assert you are pursuing the eviction process simply because he or she wants you to make a required repair, or that your eviction effort is a response to the tenant’s complaint about you to a government agency regarding some building or housing codes that you are violating.

  1. The last line of defense against eviction is the claim that you are discriminating against the tenant. Both the federal Fair Housing Act and the Texas Fair Housing Act prevent you from evicting a tenant simply because of his or her race, religion, gender, national origin, family status, or disability.

Obviously, if you’re not guilty of any of these offenses, these claims are not going to fly in court.

How Long Is the Eviction Process?

The length of time it takes from the first moment you notify a tenant of a lease violation until he or she is actually forced by the court to vacate your premises can take anywhere from three to six months. This timeline depends on many factors, not the least of which is the total length of the delays before the court hears your case.

These delays often depend on how energetically the tenant fights back against your eviction efforts. For example, a tenant can stretch out the eviction process by asking the court for extra delays. You’d be surprised how clever some tenants can be in coming up with completely plausible and understandable reasons to push back the hearing date – including hardships, family illnesses, or high priority activities like job interviews that conflict with possible court dates.

Although some of these delays may seem unfair and even capricious, in point of fact the law is intended to provide an orderly sequence of events that gives the tenant enough time to arrange for the removal of his or her furniture and other goods, and to find a new place in which to live.

Once the court orders your tenant to leave your premises, your hands are still tied. You may not carry out the eviction process on your own. Under Texas statutes, only an officer of the law may do so, and only when authorized by the same judge who ruled in your favor.

 

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