Redbook Blues: Possession
If you are like me, you cannot wait for 2022 to be over!
To help you make it one more month, I want to wrap up this year and set a firm foundation for next year by reviewing the fundamental relationship between residential property owners and renters.
The owner always owns a rental property, whether an individual, partnership, REIT, or corporation. Duh! This statement seems overly obvious; however, did you know that someone, either the owner or the tenant, is always in possession of a rental property?
The TAA Lease does not transfer ownership to the renter. Instead, the TAA Lease transfers possession from the owner to the renter; therefore, possession is key to the landlord-tenant relationship. Furthermore, the TAA Lease gives the renter possession for a limited, defined time (six months, one year, month-to-month, etc.). Essentially, the TAA Lease provides the leaseholder with (s) a legal right to the property (i.e., the renters are not trespassing).
For a property owner to rent the property to a new tenant, the property owner must get possession back from the current leaseholder(s). In general, a landlord gets possession back in one of four ways: 1) the lease term ends and the tenant moves out; 2) the tenant surrenders the unit before lease term expiration; 3) the tenant abandons the unit; or 4) based on a lease violation, the landlord files a lawsuit in the Justice of the Peace court to reacquire possession (forcible detainer).
Commonly known in our industry as eviction, "forcible detainer" means that the initial entry was lawful (as in the case of a resident signing a TAA Lease). Still, the continued possession of the premises is unlawful.
No property owner wants to evict a resident. Eviction is bad. Eviction is bad for business. Eviction is traumatic, tragic, and time-consuming. For most AATC members, eviction is the last resort. Let's face it, even though a resident brings it upon themselves; evictions are a hassle. No one wants to take time away from work to go to the courthouse.
Frankly, eviction is a lose-lose scenario. For the rental owner/manager, you lose time, money (lost rent, filing fees, vacancy loss, etc.), and a resident. The tenant loses their housing, credit, and reputation.
As you are painfully aware, the eviction process has become increasingly difficult and challenging in Texas. The good news is 1) Tarrant County Justice of the Peace (JP) courts have been very consistent in following state laws, and 2) extra "notice to vacate" requirements do not exist in Tarrant County. If you are considering eviction, begin by thoroughly reviewing the eviction resources in the TAA REDBOOK. The REDBOOK contains everything a rental property owner/management professional needs to navigate eviction, including diagrams, sample forms, laws, and legal opinions. Remember, if the federal CARES Act covers your property, the 30-day notice to vacate is still in effect.
While you can initiate eviction proceedings against a tenant for any violation of the TAA Lease, non-payment of rent is by far the most common reason. Eviction based on non-payment is a very straightforward process. However, non-payment eviction has become more challenging for the past two years. Be aware that legal aid and other tenant rights group may be present at the Justice of the Peace court and be providing your tenant with advice. Be especially cautious if you use a non-attorney eviction service. Many Tarrant County JP courts will dismiss an eviction case if you are using an eviction service that does not have first-hand, actual knowledge of the case, specifically, knowledge about the notice to vacate.
Non-rent breach of lease evictions can be convoluted and challenging. Although agents of owners (on-site staff, non-attorney eviction services, etc.) can represent owners in all types of eviction proceedings, just because you can, does not mean you should. In non-rent breach of lease evictions, AATC strongly recommends you contact one of our AATC member law firms. You can go to the AATC website (www.aatcnet.org) and click on the Advocate tab to see a list of AATC member attorneys. Next, click on the Legal Services Program tab to see our list of attorneys.
AATC members may contact any of our member law firms and receive a free initial consultation/evaluation. After the initial consultation/evaluation, any additional fee for time or legal services would be determined by the law firm. When you contact the AATC member law firm, be sure to identify yourself as an AATC member.
Use the REDBOOK diagram Steps in the Eviction Process as a guide. For example, if you're using non-payment of rent as the cause of eviction, this diagram illustrates each action taken to evict someone.
First, try every possible means to collect rent. Next, send the delinquent renter a Notice to Vacate. This notice includes language demanding possession. Then file the eviction petition in the JP court that has authority over where the property is located.
AATC members own/operate properties across nine counties and thirty-two JP precincts. In Tarrant County, there are eight (8) JP courts. Be sure to contact the court before filing to ensure your case will be heard in the proper court. There is generally a $75 - $100 per resident filing fee. After filing, a constable will serve the resident a notice of their court date.
Be sure to attend the hearing and bring all-sufficient evidence (copies of the lease, rent ledgers, photos, etc.) to win your case. If the resident does not show up for court, ask for a default judgment. Be sure to ask the JP for possession and a judgment against the tenant for the money they owe you.
If you have filed a bond for immediate possession, request the JP issue a writ of possession and expedite the process. If not, request the writ of possession and eviction six days later.
Next, the JP will order the constable to post a 24-hour notice of eviction on the resident's front door. The next day, the constable will be present to keep the peace as you remove the resident's property if the resident fails to remove it.
Evictions rarely go as smoothly as the diagram suggests, but at least you will better understand what to expect. Every JP is different. Every case is different. Every resident is different.
The final piece of the eviction process industry best practice: visit the JP court and sit through a few eviction cases before your court date. Observe how the JP conducts court. See how other owners/operators manage evictions. Learn what works and does not work in that JP court. Post-COVID, some Tarrant JPs are only conducting evictions via ZOOM.
I want to thank my AATC friends, family, and REDBOOK Blues readers for your support in 2022. You are exceptional leaders, and I am honored to be part of this industry.
Merry Christmas and Happy New Year!
Nicole Zaitoon, Allied Property Management, is AATC's 2022 Government Affairs Committee Chair and a member of AATC's Board of Directors.