I am trying to evict a tenant that has not paid rent for two months, and is now a holdover tenant as his lease expired at the beginning of this month. I have already given him a notice to vacate, but I want to commence proceedings in small claims court for late/admin fees pursuant to the lease. (Basically, I want to institute a forcible detainer action concurrently with a claim for fees, but I know one is small claims and the other is the JP) However, I am having trouble drafting the Statement of Claim because the defendant will not have an address for service after the eviction. How do I proceed?
Real Estate Attorney
If the lease is written and provides for the recovery of attorney's fees to a prevailing party, then you can recover your reasonable and necessary attorney's fees in the Judgment if you incur those fees and prevail in the suit. If your lease is not written or doesn't have an attorney's fees provision, then take a look at Section 24.006 of the Texas Property Code. However, you must be cautioned that if you send the notice required by Section 24.006 and you do not prevail, then the Tenant may recover his or her reasonable and necessary attorney's fees from you. As far as the address for service of process, take a look at Texas Rules of Civil Procedure 742 and 742a. Unless the Tenant voluntarily vacates the leased premises (which would negate the need to file the eviction), then service generally can be made to the leased premises. The Justice Court has exclusive jurisdiction over eviction suits. You can combine your claims for eviction with past due rents, which typically include late fees. The jurisdictional limits for all amounts sought are limited to $10,000.00 not including prejudgment interest and court costs. However, if you are not familiar with the methods to evict a tenant and the JP staff is not helpful, then you may want to consult directly with an experienced landlord/tenant attorney. Good luck.
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