Eviction: A Tenant’s Guide
There are few situations in life as unpleasant as being evicted from your home. The prospect immediately conjures the specter of homelessness, and the uncertainty of the situation can strike fear and despair in anyone’s heart. If you’re facing eviction, the best thing you can do is to immediately seek legal representation. Below is general information regarding the overall process of eviction.
The best way to avoid eviction proceedings altogether is through proper communication with your landlord. A seasoned lawyer can effectively negotiate on your behalf, but it may be cheaper and faster to simply approach the landlord yourself. If you maintain a respectful, calm, and professional bearing, landlords have many options for both of you to avoid going to court. In the case of unpaid rent, it is common for landlords to accept late payments or work out other arrangements if they want business with you to continue. However, if the landlord is accusing you of other alleged lease violations, especially anything involving potential criminal allegations, it is highly recommended to get an attorney to assist with negotiation.
Before the landlord can begin eviction procedures, there are several steps which Texas law requires them to follow. First, the landlord must provide the tenant a Notice to Vacate three days before filing their lawsuit in Justice of the Peace (JP) court. In the event you live in HUD property, this time period is usually longer, unless the reason for eviction involves allegations of drugs or other criminal activity. Regardless, this time period is absolutely critical as it is usually your last opportunity to try to work something out with your landlord before proceedings commence. Also, remember that court filings like these are public, so any future landlords you may want to do business with will be able to see them if they do a search for your name.
For the landlord’s Petition for Eviction to be accepted by the JP court, there are several requirements for the filing. First, the landlord must include a description of the property they are trying to evict the tenant from. Second, they must allege a good reason for the eviction in the complaint. Remember that landlords can evict for essentially any reason, so long as they are not violating the lease themselves or violating the law. Lastly, the landlord must include some form of affidavit swearing that all of the foregoing is true.
Once their filing is accepted, you must file an answer on time. Failure to file and answer with the court typically results in the judge issuing a default judgment against you. The legal effect of a default judgment is that you lose the case instantly, because you have not disputed the landlord’s claims. The JP court will often have sample answers you can use to avoid this outcome, so do not hesitate to use the free resources available to you. Do not lose your case before it even begins.
At trial, it is the landlord who must prove all the allegations in their complaint. If the grounds for eviction are unpaid rent, landlords are required by law to maintain a ledger of all payments. These records tend to make it very easy for landlords to win at trial. However, it is worth noting that if the landlord has a history of accepting late rent payments in the past, they may have forfeited their right to demand timely rent payments now.
The main goal for the landlord is to get a court order terminating the tenant’s right to remain in possession of the property. That said, Texas law also allows them to seek unpaid rent, court costs, and their own attorney’s fees. In order to get these things, the landlord must follow all statutory requirements and prove their case by a preponderance of the evidence, meaning “more likely than not” or 50.1%. This is very distinct from a criminal case where a case must be proven beyond a reasonable doubt.
If the judge rules against you, not all hope is lost. The landlord cannot retake the property immediately. To physical retake the property, the landlord must file a Writ of Possession with a copy of the Judgment. This is the document that allows the local police to perform the eviction. This writ can only be filed on the sixth day after the judgement is signed. During those preceding five days, it is possible to appeal the judgement to County Court. The clock starts the day after the judgment is signed and includes holidays and weekends. Filing an appeal will also require a bond, which is typically forfeited if the tenant loses the case again. If you cannot afford the bond, you can file a Pauper’s Affidavit along with your financial information showing that you lack the ability to pay. However, the landlord has the right to contest that affidavit and request the court to hold a finances hearing. If you lose the finances hearing, the five day timer starts over again.
If all else has failed, know that the police cannot evict you if it is raining, snowing or sleeting. Also, evictions typically don’t happen on the weekends, but there is no hard rule preventing weekend eviction if the local police are working. Lastly, even after the trial, it is still possible to negotiate something with your landlord so that they do not enforce their judgement, although negotiation will be much harder now. If you can come to a deal with your landlord, know that you are not fully protected unless they file a document with the court explicitly saying that they will not enforce their judgement against you. Ultimately, there is no substitute for knowing your rights and understanding how proper due process works.
This article is intended to provide general legal knowledge, but it is no substitute for speaking with an actual lawyer. To speak with an attorney in the Fort Bliss Legal Assistance Office on this or any other topic, please schedule an appointment by emailing usarmy.bliss.hqda-otjag.mesg.bliss-legal-assistance-office@army.mil at any time or by calling (915) 568-7141 during business hours.
Capt. David Mathew, Fort Bliss Legal Assistance Office