Notice of Eviction? Time to Go!
I get lots of calls about tenants asking for advice because they received a notice to vacate from their landlord. Here are a few legal tips to assist you if you've received a notice to vacate, either for nonpayment of rent, or some other type of lease violation.
What Type of Tenancy Do I Have?A landlord-tenant relationship generally arises from an agreement in which a property owner (the landlord) gives another person (the tenant) exclusive possession of certain property during an agreed term. In consideration for the right of possession, the tenant agrees to pay rent and comply with any other conditions and covenants of the agreement. First, you should determine what type of tenancy you have. This is important in order to determine the rights, duties, and liabilities of the parties, including the point at which the tenancy may be terminated. The most common types of tenancy are: (1) tenancy defined by time period; (2) tenancy at will; (3) holdover tenancy; and (4) tenancy by sufferance. Generally, a tenancy defined by time period will specify the beginning, duration and ending of the lease agreement. When no specific term is expressed in the lease agreement, but rent must be paid at regularly scheduled times, the tenancy is considered "month-to-month." A tenancy at will exists when a tenant lawfully possesses the landlord's property for an indefinite period of time and for no definite purpose. A holdover tenant is a tenant who continues to possess the landlord's property after expiration or termination of the lease. If the landlord does not consent, continued possession is wrongful and the holdover tenant becomes a tenant at sufferance. In contrast, if the landlord consents, continued possession is lawful and the holdover tenant becomes a tenant at will.
I Received a Notice to Vacate. Now What?First, you should review the notice to vacate to determine how much time you are given to vacate the premises? The law requires that a landlord give a tenant in default, a holdover tenant, a tenant at will or a tenant at sufferance a minimum of three (3) days' notice to vacate the property (Tex. Prop. Code * 24.005(a), 24.005(b)). If you are a tenant of a person who acquired possession by forcible entry, then you must received a minimum of three (3) days' notice to vacate (Tex. Prop. Code * 24.005(c)). If you have a written lease, you should always review your lease to determine how much time you and the landlord agreed upon for a notice to vacate the premises. Some written lease agreements require that the landlord provide the tenant with a thirty (30) day written notice to vacate.
If, however, the real property was sold by foreclosure and sale, and you are still residing at the property from a prior lease agreement, then a residential tenant who is not in breach of the lease agreement is required to received thirty (30) days written notice to vacate (Tex. Prop. Code * 24.005(b)). Under the federal Protecting Tenants at Foreclosure Act, a "bona fide tenant" of residential property must be given 90 days notice to vacate by a foreclosure purchaser if there is no lease or if there is a lease terminable at will (see Pub. L. No. 111-22, 123 Stat. 1632 (2009) which appears as statutory note to 12 U.S.C. * 5220).
If the landlord files an eviction petition before the applicable notice period has expired, a tenant who raises the objection is entitled to possession of the premises due to inadequate notice.
If you remain on the premises after the time period in the notice to vacate has expired, the landlord may file an eviction suit against you. In eviction lawsuit is brought to recover possession of real property under Texas Property Code Chapter 24. A justice court in the precinct in which the real property is located has jurisdiction in an eviction suit, which includes both forcible entry and detainer, and forcible detainer suits (Tex. Prop. Code * 24.004(a); see Tex. Civ. Prac. & Rem. Code * 15.084; Tex. R. Civ. P. 510.3(b)). An eviction petition must be filed in precinct where premises is located.
Is the Notice to Vacate Deficient?There are no specific requirements under Texas law for the content of a notice to vacate, but it must clearly state the landlord's demand for possession (Tex. Prop. Code * 24.005). If the notice is insufficient under state law, injury or prejudice to the tenant is not required. The notice should be clear as to whether the landlord intends to terminate the lease, or only the tenant's right to possession. If, before giving the tenant a notice to vacate, the landlord gives the tenant a written notice or re-minder that rent is due and unpaid, the landlord may include in the notice to vacate a demand that the tenant pay the delinquent rent or vacate the premises by the date and time stated in the notice (Tex. Prop. Code * 24.005(i)).
Review your written lease agreement to determine whether it requires the landlord to give you an opportunity to respond to any alleged violation of the terms of the lease. If the written lease requires the landlord to give you a notice to respond, you must receive such notice prior to receiving a notice to vacate. Tex. Prop. Code * 24.005(e) requires that two separate notices must be provided: (1) notice of termination or proposed eviction, followed by (2) notice to vacate after the response period has closed. Combining the two notices in a single document is therefore necessarily inadequate and will not support eviction.
May the Landlord Attach the Notice To My Front Door?The notice to vacate may be given in person or by mail (Tex. Prop. Code * 24.005(f)). Notice in person may be by personal delivery to the tenant or to any person residing at the premises who is at least 16 years old, or by affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail or by registered or certified mail, return receipt requested. If the dwelling has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to leave the notice to vacate on the inside of the main entry door, the landlord may securely affix the notice on the outside of the main entry door (Tex. Prop. Code * 24.005(f)). The notice period does not begin to run until the day the notice is actually delivered [Tex. Prop. Code * 24.005(g)].
Do I Have to Pay the Landlord's Attorney's Fees?A notice to vacate may include a demand for attorney's fees, when appropriate. A landlord who wins an eviction suit is entitled to recover reasonable attorney's fees from the tenant under two circumstances: (1) the written lease so provides, or (2) the landlord sent the tenant a written demand to vacate the premises under Texas Property Code * 24.006(b). The landlord's demand must be sent by registered or certified mail, return receipt requested, at least 10 days before the suit is filed. The demand must state that if the tenant does not vacate the premises before the eleventh day after receipt of the notice and the landlord files suit, the landlord may recover attorney's fees [Tex. Prop. Code * 24.006(a). This demand may be contained in the notice to vacate, or sent separately to the tenant. Pursuant to Texas Property Code * 24.006(c), both the landlord and the tenant have the opportunity to recover attorney's fees. If the landlord prevails in the eviction suit, he/she may recover attorney's fees. If the tenant prevails in the eviction suit, he/she may recover. The tenant is not required to give the landlord notice in order to be entitled to attorney's fees (Tex. Prop. Code * 24.006(c)).
DisclaimerThis guide is intended for general information only. Each tenant's situation may be different, and a careful review of any written lease agreement is necessary to properly advise a tenant about their rights and duties. Therefore, for legal advice, you should consult an attorney of your choosing. Nothing contained in this guide establishes an attorney-client relationship with the reader and the Law Office of Kathy Roux.