Texas Justice Court Training Center

Texas Justice Court Training Center

WTJPCA

Lubbock

April 10-11, 2018

Eviction Scenarios

Randall L. Sarosdy

Rebecca Glisan

SCENARIO 1

Plaintiff files an eviction suit in your court. The plaintiff acquired the premises (a residence on a lot) after a tax foreclosure sale at which he was the highest bidder. The defendant is an occupant of the residence. The defendant claims that the property belonged to her aunt who passed away and she inherited it and owns it. But she does not have a warranty deed or any proof of ownership. Apparently, after her aunt died no one paid the property taxes and there was a tax foreclosure sale.

Both parties appear for trial.

The defendant argues that she is entitled to judgment because the plaintiff only gave her a three day notice to vacate.

She claims she is entitled to a 30 day notice to vacate under Property Code § 24.005(b), which states:

“If a building is purchased at a tax foreclosure sale or a trustee's foreclosure sale under a lien superior to the tenant's lease and the tenant timely pays rent and is not otherwise in default under the tenant's lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days' written notice to vacate if the purchaser chooses not to continue the lease. The tenant is considered to timely pay the rent under this subsection if, during the month of the foreclosure sale, the tenant pays the rent for that month to the landlord before receiving any notice that a foreclosure sale is scheduled during the month or pays the rent for that month to the foreclosing lienholder or the purchaser at foreclosure not later than the fifth day after the date of receipt of a written notice of the name and address of the purchaser that requests payment.”

The plaintiff claims this statute is not relevant because the defendant is not a tenant of a previous owner but claims to be the owner herself. So there is no lease. He claims she is just a tenant at sufferance because she used to have a legal right to be there but no longer does since he purchased the property at the tax foreclosure sale. He claims he only had to give her a 3 day notice to vacate under this sentence in Property Code § 24.005(b):

“If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days' written notice to vacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement.”

How would you rule:

1. For the Plaintiff: 3 day notice to vacate is all that is required.

1. For the Defendant: the occupant was entitled to 30 days notice since it was a tax foreclosure sale.

SCENARIO 2

Email sent from a judge on November 3, 2017:

On June 14, 2017 I heard an eviction suite and ruled in favor of the plaintiff for possession of the property only as plead by the Pro Se Plaintiff. Defense attorney filed an appeal on July 5, 2017 which was dismissed at the county court because the appeal was not filed timely by the Defense even though in the interest of justice I did allow the writ to be appealed to the county court since Defense counsel argued that the appeal time was different for a manufacture home than a normal appeal even though the rule stated otherwise. When the Plaintiff returned August 22, 2017 to file for their Writ of Possession for the Trailer and an error was discovered in the original trial judgment order. I completed an order for a Nunc Pro Tunc to correct the wording on the original judgment of June 24th, 2017 to describe the Manufacture Home in the Judgment.

On August 23rd, 2017 Defense Counsel came and filed a second appeal since a Nunc Pro Tunc was done on August 22nd, 2017 siting that the Nunc Pro Tunc allowed for an appeal to be granted. After consulting with the County Attorney’s Office, they felt that in the interest of fairness and justice, the appeal should be granted and heard by the county court.

This week, October 31st, 2017 the county court heard the appeal arguments and again dismissed the appeal, siting that the original appeal bond was filed more than 5 days from date of judgment and dismissed the appeal with prejudice.

The Plaintiff has now returned and filed for another Writ of Possession.

My dilemma is that Rule 510.8(d) states clearly the Writ of Possession cannot be issued later than 60 days from date of judgment unless for good cause the judge may grant the Writ of Possession no later than 90 days from date of judgment. The plaintiff is stating that the Writ of Possession should be issued because of the appeal and Nunc Pro Tunc date are within that 90 day range.

Can you help shed some light on this for me please. I wish to make a proper ruling and it is my belief that the Plaintiff has to start the whole eviction procedure over again since the original judgment was signed on June 14th, 2017 and I cannot find any precedent stating otherwise where the Writ of Possession issuance date starts over when an appeal is dismissed at the county level or when a Nunc Pro Tunc is done from an error on the original judgment date.

How would you rule:

1. The plaintiff has to file a new suit: it’s more than 90 days from the original judgment.

1. The plaintiff is entitled to a writ of possession: it is less than 90 days from the nunc pro tunc judgment which the defendant treated as a “new” judgment to file a second appeal; if it was good enough for a second appeal it is good enough for a writ of possession

SCENARIO 3

If an attorney efiled only a notice of appeal a day after the deadline on an eviction suit due to non-payment of rent and the appeal was not perfected since no appeal bond was attached nor have we received an appeal bond since the attorney was notified last week that the appeal was not perfected and plaintiff has now requested a writ of possession. Yesterday the attorney sent a letter stating that his signature as Attorney of Record bounds him as surety.

Now he is stating that if I refuse to accept what he efiled he will seek a Writ of Mandamus.

Your thoughts if you can.

Here is the letter from the attorney:

Attorney at Law

13 North Main StreetTel. 817-558-4719

P.O. Box 1063Fax 817-645-3

Cleburne. Texas 76033-1043 "'MAY.Bark.mgnlawyqr.com

February 23, 2018

Re: Cause No.: JP2-CV180009; Chaney v. Humphreys

Dear Ms. Ashley,

In response to your email yesterday, yes, I had received your prior message. In response, I sent a letter directly to Judge Monk. However, I would like to respond directly to some of the issues raised.

First, the Texas Rules of Civil Procedure say nothing on appeal being perfected "before the close of business." Tex. R. Civ. Pro. 510.9(a). In fact, since the appeal bond was efiled, I could've filed as late as

I I :59PM on the day it was due. Tex. R. Civ. Pro. 21(f)(5).

Second, while it concededly contained some typos, the document I filed was an appeal bond. My signature as Attorney of Record bounds me as surety. In an abundance of caution, I am filing amended appeal bond as allowed by Tex. R. Civ. Pro. 506(g). The court may not dismiss my appeal without giving me this opportunity to correct any defects.

Please advise as soon as possible if the court recognizes the appeal as perfected or if I need to file a writ of mandamus.

How would you rule:

1. Issue the writ of possession; he didn’t perfect an appeal

1. Document exactly what was filed and when it was filed and send it to the county court and if they bounce it back then issue a writ of possession

SCENARIO 4

More increasingly manufactured home communities are insisting that their lease agreement creates a lien on manufactured housing owned by a tenant. Because of this claim the managers of the communities are refusing to arrange for movers for the manufactured home under the writ of possession and requesting that the tenant be removed from the home and the property. The managers of the community wish to hold the home ransom based on the lien and then then sell it for back rent. 1. Is it legally binding for manufactured home communities to place a lien through a lease agreement on the manufactured home owned by a tenant? 2. Do the managers have the right to choose not to request a writ for the manufactured housing (personal property PC 2.001) and request that the constable remove only the tenant and personal property other that the manufactured home when the writ clearly directs removal of personal property {P {PC 24.0061(C),(D)}? 3. If the constable follows the writ strictly and ignores the managers request in this instance, does the constable have any liability?

You would rule:

A. Whether or not the landlord has a lien is not relevant to the whether the landlord is entitled to a judgment for possession of the land on which the manufactured home is located.

B. The landlord is entitled to remove just the tenant and sell the manufactured home to pay off the delinquent rent.

SCENARIO 5

We have an Eviction case involving a Tenant who has a mobile home on a "leased" site. The Mobile home is Mortgaged. The Tenant has not paid rent and the Owner leasing the land to the Tenant has filed an eviction. There is some discrepancy with the interpretation of the law in Property Code 94.203 (d) "Notwithstanding other law, a court many not issue a Writ of Possession in favor of a landlord before the 30th day after the date the judgment for possession is rendered" and then goes on to say "if the tenant has paid the rent amount due under the lease for that 30 day period" Of course the Tenant has not paid rent in 2 months in this case which is why the eviction was filed. So does this mean the court can issue the Writ of Possession on the 6th day after the Judgment was signed as in normal eviction cases? and, Section 94.206 (2) of the Property Code states that "the landlord notifies the tenant in writing that the payment is delinquent; and (3) the tenant has not tendered the delinquent payment in full to the landlord before the 10th day after the date the tenant received notice" The question is: does this mean the Landlord must give a 10 Day notice to pay rent, and if it is not paid by that 10th day, then give them a 3-day notice to vacate?

How would you rule:

1. A Writ of possession may issue as long as the landlord gave the tenant 10 days to pay the rent and a 3 day notice to vacate.

1. Better hold off on issuing the writ of possession for 30 days.

SCENARIO 6

Here's our situation: We had a Commercial Landlord come in and ask if they "the landlord" gives the tenant a notice to vacate, but the tenant goes and tells the landlord that they have a partial payment and will pay the rest at the end of the month. The landlord takes the money and agrees to the rest of the payment later, either in writing or verbal. The tenant does not pay the balance. Does this void the notice to vacant or can they the landlord proceed forward like nothing happened. when answering could you please let me know where in the law it states the answer.

You would rule:

1. The notice to vacate is valid; the landlord does not have to give a new one.

1. The new agreement in effect rescinded the notice to vacate and the landlord has to serve a new notice to vacate.

1. The landlord needs to consult a lawyer rather than ask the court for legal advice.

SCENARIO 7

Squatters that are living in a property that has been foreclosed on and purchased by a new owner. The new owners don't have names of any of the occupants as there was never a lease. There has been no water, electric, etc. to the home but the squatters brought in a generator. They have given notice of 'owner desires possession' now they need to file eviction but have no names. What would be acceptable for names in this situation for the constable to serve. Can they use tenant 1,2 or 3? They are not sure how many people are squatting. The officer she spoke with sent her to us. I told her to seek legal advice but I am curious. (The new owner has been told this house is a "drug" house.)

You would rule:

1. The new owners may file an eviction suit against “John Doe and all occupants.”

1. The new owners need to get law enforcement over there to clean these deadbeats out of this drug house.

SCENARIO 8

Is there a landlord tenant relationship created such that the court has jurisdiction in a FED case in the following fact situation: Homeowner defaults on HOA dues. HOA sues, obtains a judgment, forecloses and is now the highest bidder and purchases the home. HOA seeks to evict and defense counsel states there is no L/T relationship thus depriving the court of jurisdiction.

You would rule:

1. Yes, the homeowner is now a tenant at sufferance and the purchaser may evict him.

1. No, title is in dispute and there was never any landlord/tenant relationship so the court may not hear this case.

SCENARIO 9

Two Part question, If a plaintiff files an Eviction Petition with defendant listed as Defendants names and/or all occupants and the citation is sent out the same name style. Then the officer serves the occupant with citation. The occupant comes in and request/pays for a Jury Trial, their name is not a party to the case other than the and/or all occupants so we set for Jury Trial? If the same occupant did not request for Jury Trial but came in on Trial Date but the named defendant failed to appear would the judgment reflect as Default Judgment or would it be Judgment for plaintiff as the and/or all occupant appeared?

You would rule:

1. The occupant should be allowed to defend the case since he is living there and will be evicted if he is not allowed to answer.

1. The occupant is not a tenant and the landlord is entitled to sue just the tenant; if the tenant fails to appear then the landlord is entitled to a default judgment even if an occupant shows up.

SCENARIO 10

Is it stated it the statutes that a landlord cannot refuse to accept a tenant's rent on or prior to the date rent is due and then evict the tenant for non-payment of rent? Lately our court has had several tenants make the claim that their landlord would not accept their rent and now are trying to evict them for non-payment of rent.

You would rule:

1. If the tenant tenders the full amount of rent and the landlord refuses to accept it, the tenant has not breached the lease and cannot be evicted.

1. The landlord may refuse to accept the rent and terminate the lease and then evict the tenant.

SCENARIO 11

On October 19,2012 Plaintiff/S. Holdings filed an Eviction on a Defendant/Brandon C. The Constable's office served it with a notation made on the paperwork that another party/Jason B was served with the citation and that he stated to the deputy that no one by that name lived there. On the day of court October 26, 2012 a Default Judgment was awarded to the Plaintiff, and a copy was mailed to the Defendant/Brandon C. The Default Judgment letter was returned by the USPS to the court with another forwarding address. From what I reviewed in the case I do not believe that the clerk at that time forwarded it to the new address. Now Brandon C. defendant that was listed on the citation has come into our office wanting this Judgment removed from his record. He did live at this property had given notice and moved out prior to September 1, 2011. He did attempt to contact the Plaintiff/S. Holdings that had filed the eviction and was told that they had been closed down by the State of Texas a couple of years ago. He is now being blocked from renting due to being incorrectly labeled as the tenant. I have found on the original filing that someone, not sure who did it, changed the defendant's name on the original petition filed to Defendant/Jason B. however none of the citations issued have this name on them. Our court has a new Judge and staff that none of which were here at the time of the filing or court date. What if any remedy is there for this case?

You would rule:

1. This is easy: there’s no case pending so there’s nothing for the court to do.

1. The only thing he might be able to do is file a bill of review and he might not even be able to do that.

1. He needs to get himself a good lawyer who can advise him on his rights.

SCENARIO 12

An apartment complex and an attorney have teamed up to file a number of cases involving past due rents on apartment tenants who move out before the lease is up. I have two questions: 1) Is the apartment complex required to mitigate damages in this case? in other words, If tenant moved out owing 8 months at $8,000, do they just flat out sue for 8K? 2) In every case, the attorney seeks $3,500 for attorney fees. In a default judgment situation, don't I have a duty to swear in an attorney and have him testify concerning what seems to be a hefty legal bill?