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Read further to learn more about the eviction process in Texas and how many days’ notice are required in which situations.
What’s an Eviction Notice?
An eviction notice is a legal form of disclosure that lets a tenant know that they are in clear violation of their lease agreement, and either need to correct the issue or vacate the premises. If the tenant fails to take action after proper legal notice is given, the landlord may evict the tenant. When a landlord provides written legal notice to a tenant to correct a violation of the lease agreement, it is referred to as a “Notice to Quit.” The terms of the Notice to Quit will vary depending on the situation. While many tenants will choose to move out of the unit after receiving a Notice to Quit, sometimes further action is required. The following information outlines the specific steps a landlord must take to formally evict a tenant from their rental property, from delivering a Notice to Quit to obtaining a Writ of Possession. You will also find detailed instructions on creating an eviction notice specific to the state of Texas.
In Texas, the eviction process involves several different steps. All of them must be followed very carefully to keep from violating any provisions of the Texas Property Code. Use the information below to help yourself remain compliant with the law.
Preparing a Notice to Vacate in Texas
Section 24.005 of the Texas Property Code requires you to complete a Notice to Vacate before you are able to file an eviction lawsuit. A Notice to Vacate is essentially a written notice telling the tenant that he or she must vacate the property or face eviction proceedings. No particular format is required, meaning the notice can be in the form of a business letter that may even be hand written. However, most landlords choose to prepare the letter in the form of a Word document.
The Notice to Vacate should specify the property address, names of tenants, and a date and time on which it becomes effective. Include the reason for asking the tenant to vacate such as non-payment of rent. Let the tenant know that if he or she does not vacate by the time stated in this notice that you may pursue further legal action up to and including eviction proceedings. Leave a space for your original, written signature as well as a date and time stamp.
Provide at least a three days’ notice to tenants who default on a lease or hold over once their lease has expired. However, if you have purchased a building from a tax or trustee’s foreclosure sale, you must provide 30 days’ notice to anyone who is not in default.
Collecting Past Due Rent with a Notice to Vacate
There may be times when you would rather provide tenants an opportunity to pay back rent rather than face eviction. If so, you can do so with a Notice to Vacate as well. Be sure to clearly spell out the amount of past-due rent that is to be paid, and provide three days for the tenant to come up with the funds.
Provide instructions on how and when this rent is to be paid. Let the tenant know that if the rent is not paid as requested, that you will move forward with an eviction suit. Sign the letter and provide a date and time stamp.
When collecting rent in this way, you will not be able to file an eviction suit if the tenant complies with all the agreements set forth therein. However, if he or she disputes the amount of rent that is due or does not come up with the money, you are then free to proceed in court.
Delivering a Notice to Vacate
Deliver the Notice to Vacate in one of the following manners:
- By dropping it in the mail.
- Hand delivering it to the tenant or another person living at the residence who is at least 16 years old.
- Affixing the notice to the inside of the main entry door.
- Using registered, certified, or return receipt requested mail.
It’s important for your Notice to Vacate to contain all pertinent information and be delivered by one of the methods set forth in Section 24.005 of the Texas Property Code. If your notice is not completed and/or delivered accordingly, it will not count. This means you will have to file a new Notice to Vacate and wait the appropriate amount of time.
The notice period begins when the notice is officially delivered. This is the date on which you hand delivered or affixed the notice to the door, regardless of whether or not your tenant was at home. For certified, registered, or return receipt mail, the delivery date is the date when the post office received a written signature.
The delivery date can be difficult to determine if you send the notice via regular mail, so you should avoid using that method whenever possible. When using registered, certified, or return receipt mail, allow ample time for the tenant to receive your notice when calculating the three-day period.
Alternative Delivery Actions
You may attach the Notice to Vacate in a sealed envelope on the outside of a main entry door if the premises does not have a mailbox, and there is also an alarm system, keyless bolting device or dangerous animal that would make it unsafe for you to enter.
Some tenants become enraged when they receive a Notice to Vacate. Accordingly, if you believe your own safety or anyone else on the premises would be in danger, you may also affix the Notice to Vacate on the outside of the main entry door.
When using this delivery method, write the tenant’s name and address on the outside of the envelope. Mark it with “IMPORTANT DOCUMENT” or another similar phrase in all capital letters. On the same day, place a copy in the postal mail no later than 5 pm and in the same county in which your property is located.
The Notice to Vacate is considered to be delivered on the day you execute this action, provided you are authorized to do so.
Filing an Eviction Lawsuit
You must wait until the time period specified in the Notice to Vacate has expired before filing an eviction lawsuit. In Texas, this is known as a Forcible Entry and Detainer. This will not be necessary if your tenant leaves as you have requested.
Section 24.001 of the Texas Property Code describes a forcible entry and detainer as occurring whenever someone “enters the real property of another without legal authority or by force and refuses to surrender possession on demand.” A forcible detainer is spelled out in Section 24.002, and involves a tenant who holds over following the termination of his or her right to possession.
An eviction notice is filed in the county where your property is located. You must pay the required filing fee and comply with all other requirements as spelled out by your county. The clerk will notify you as to the date and time of the hearing. If the tenant fails to appear, the judge will enter a default judgement in your favor.
Eviction Lawsuit Proceedings
You do not need an attorney to represent you in an eviction lawsuit. However, you may choose to hire one at your own expense. Attorney’s fees are normally not recoverable in court unless expressly spelled out in your lease.
While you do not need a lawyer, you are required to prove that the tenant violated the terms of a lease or was a holdover. This means you should bring all appropriate evidence to court, including the lease, property deed, Notice to Vacate, rent receipts, photographs, witness statements, or any other documentation you may have.
Since you are the plaintiff in this case, you will present your case first. Your tenants will then have a chance to present their own case or to submit any evidence they may have. After hearing both sides, the judge will render a decision. Only after receiving a favorable decision may you proceed with a Writ of Possession.
Appealing an Eviction
If the judge rules in your favor, tenants may still exercise their right to an appeal. They do this by filing an appeal bond with the court or signing an affidavit stating that they are unable to pay. They must also pay one month’s rent into the Justice Court’s registry, and continue making monthly payments into this registry as long as the appeal is ongoing.
A tenant may choose a surety to cover the bond amount. If so, the surety must provide his or her contact information such as a physical address, telephone number, and email address.
All requests for an appeal must be filed within five days of the original decision. If tenants do not file an appeal during this time, you may request a Writ of Possession. Likewise, if a tenant fails to pay rent into the registry during an appeal, this essentially nullifies the appeal and leaves you eligible for a Writ of Possession.
An appeal essentially provides you with a new trial date. Accordingly, you must provide all the same evidence you initially produced, along with any new evidence concerning non-payment of rental funds to the registry.
Appealing Bond Amounts
You may appeal the amount or form of a bond. To do this, you will file a written appeal on or before the fifth day after the appeal bond is filed. The appeal will state that the amount of the bond is insufficient or that the surety does not have adequate funds to cover the bond amount. The tenant as well as any sureties will receive a notice of this appeal.
The Justice Court must hold a hearing within five days to determine whether or not to approve the bond amount. At that time, it is your responsibility to prove by a preponderance of the evidence that the amount of the bond is insufficient or that the surety cannot pay. If the surety fails to show up in court, this will automatically result in the bond amount being denied.
If the judge rules in your favor, the tenant will have five days to deposit the bond amount, file an inability to pay, or submit an appeal. Should the tenant submit an appeal, the justice court will submit the information to the county court, who will then docket the appeal. A hearing will take place no later than five days following the court’s docket.
Writ of Possession
In cases where tenants do not appeal or fail to pay the appropriate amount into the registry, courts may issue a Writ of Possession. According to Section 24.0053 (a-3), upon your request and payment of the appropriate fee “the justice court shall issue the writ of possession immediately and without a hearing.”
The sheriff or constable is responsible for executing the Writ of Possession in accordance with Sections 24.0061 (d) through (h). You are responsible for any costs associated with the sheriff doing so. A Writ of Possession will not be issued prior to the sixth day following a judgement for possession.
In executing the order, the sheriff will provide written notice to the tenant specifying the date on which he or she is to vacate the premises. An officer may do this by placing a written notice on the outside of the front entry door and giving a date and time whereby the Write of Possession will be executed.
Execution by Sheriff or Constable
A Writ of Possession may be executed no sooner than 24 hours after posting notice. Some jurisdictions may require a sheriff to provide a longer amount of time. Section 24.0061 (e) authorizes the officer to use a bonded or insured warehouseman to remove and store any remaining property at no cost to you. This right is often exercised when an individual refuses to vacate or leaves personal possessions behind. Accordingly, you will not have to worry about being responsible for any property a tenant may leave behind.
A sheriff or constable may also utilize “reasonable force” when executing a Writ of Possession. This means that an officer may forcefully remove a tenant who refuses to leave, and is authorized to make an arrest if the situation warrants one.
The eviction suit is officially over when the sheriff executes the writ. Until you have clear possession, you may not rent or lease any part of that property to another person. Although this ends the eviction process, you may later bring suit in court for damages if they exceed the amount of the renter’s damage deposit.